HHS Final Rule on Medicare Appeals Process

Earlier this year, HHS issued a final rule that streamlines the Medicare administrative appeal processes to address the continuing increase in the number of appeals, which has resulted in a large backlog. The third level of appeal is administered by the Office of Medicare Hearings and Appeals (OMHA), which conducts Administrative Law Judge (ALJ) hearings; and the fourth level of appeal by the Departmental Appeals Board (DAB), which houses the Medicare Appeals Council. The new rules are designed to increase consistency in decision making across appeal levels and improve efficiency for both appellants and adjudicators. In particular, the rules will help to clarify processes and add provisions for increased assistance when Medicare beneficiaries are unrepresented. The HHS three-pronged strategy to address the backlog includes the following:

• Invest new resources at all levels of appeal to increase adjudication capacity and implement new strategies to alleviate the current backlog.
• Take administrative actions to reduce the number of pending appeals and encourage resolution of cases earlier in the process.
• Propose legislative reforms that provide additional funding and new authorities to address the appeals volume.

The new final rule is the latest in a series of administrative actions designed to reduce the number of pending appeals and encourage resolution of cases earlier in the Medicare appeals process. The final rule is one part of efforts to address the appeals workload. HHS noted that it did not expect the new rules would alone eliminate the backlog. HHS has also requested additional funding to bring disposition capacity in line with the current appeal volume at both the OMHA and the DAB, along with a legislative package aimed at both helping HHS process a greater number of appeals, and encouraging resolution of appeals earlier in the process before they reach the OMHA and the DAB. Proposed changes to the Medicare appeals process will:

• Permit designation of Medicare Appeals Council decisions (final decisions of the Secretary) as precedential to provide more consistency in decisions at all levels of appeal. This will ideally reduce the resources required to render decisions, and possibly reduce appeal rates by providing clarity to appellants and adjudicators.
• Expand OMHA’s available adjudicator pool by: allowing attorney adjudicators to decide appeals for which a decision can be issued without a hearing; review dismissals issued by a Qualified Independent Contractor (QIC) or Independent Review Entity (IRE); issue remands to Centers for Medicare & Medicaid Services (CMS) contractors; and dismiss requests for hearing when an appellant withdraws the request. This change will allow ALJs to focus their efforts on conducting hearings and adjudicating the merits of more complex cases.
• Simplify proceedings when CMS or CMS contractors are involved by limiting the number of entities (CMS or contractors) that can be a participant or party at the hearing (although additional entities may submit position papers and/or written testimony or serve as witnesses).
• Clarify areas of the regulations that currently cause confusion and may result in unnecessary appeals to the Medicare Appeals Council.
• Create process efficiencies by eliminating unnecessary steps (e.g., by allowing ALJs to vacate their own dismissals rather than requiring appellants to appeal a dismissal to the Medicare Appeals Council); streamlining certain procedures (e.g., by using telephone hearings for appellants who are not unrepresented beneficiaries unless the ALJ finds good cause for an appearance by other means); and requiring appellants to provide more information on what they are appealing and who will be attending a hearing.
• Address areas for improvement previously identified by stakeholders to increase the quality of the process and responsiveness to customers, such as establishing an adjudication time frame for cases remanded from the Medicare Appeals Council; revising remand rules to help ensure cases keep moving forward in the process; simplifying the escalation process; and providing more specific rules on what constitutes good cause for new evidence to be admitted at the OMHA level of appeal.

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