Editor's Note

Appealing for Fairness

Word is still filtering out to some providers, clinicians and stakeholders, but here's the gist: Medicare’s Administrative Law Judge (ALJ) won’t be taking new appeals from suppliers for about the next two years.

That’s because the ALJ is seriously backlogged — to the tune of six digits — with pending claims appeals, according to an announcement just before Christmas from Chief ALJ Nancy J. Griswold.

Her statistics — 374,000 claims to be handled by 65 ALJs at the time of the announcement, a 184-percent increase over the last three years — were impressive in an appalling kind of way. Surely, here was the smoking gun that providers had waited so long for — proof that Medicare’s unrealistic and ill-conceived competitive bidding program, brutal funding cuts and debilitating audit policies were crippling the very system they were supposedly seeking to protect.

Surely, something would now have to be done in response to such a huge mountain of claims. And so it happened.

The ALJ basically put up a sign that said, “Unavailable Until Further Notice.”

What?

The ALJ is part of Medicare’s checks-and-balances structure. It’s there to help ensure that the right thing is done. It’s supposed to be part of the process that ensures that beneficiaries get the medically justified services, supplies and technology they’re entitled to. And at a time when Medicare seems to loathe paying for any DME or complex rehab technology, even when it’s medically necessary, the ALJ and the rest of the appeals process are the last things standing between help and hopelessness for beneficiaries.

Except that the ALJ has removed itself from the process.

People familiar with the situation — including those who attended the Office of Medicare Hearings & Appeals (OMHA) Forum (see MobilityMgmt.com for details) — aren’t blaming the ALJ. Among stakeholders’ complaints were that many appeals now sitting with the ALJ should have been handled at a lower level. And many appeals now in the ALJ’s hands can be directly traced back to recent Medicare policies that are seriously flawed according to neutral economics experts, and working just fine according to Medicare. No, the ALJ isn’t at fault for the avalanche of appeals.

But I still don’t understand how the ALJ can respond by locking its door.

What good is an emergency service if it can be turned off — for years! — when people need it most? Would we allow 911 operators to switch off their phones on busy nights? Are police allowed to tell citizens, “Sorry, we’ve got all the cases we can handle, so we’re not accepting any more felony cases until we’ve got some breathing room”?

And if the ALJ can just decide it’s too busy to take on more cases, why aren’t providers allowed to say they’re too busy to handle yet another audit?

Hey, Mr. Auditor-Who-Gets-Commissions-for-Claims-He-Rejects, I’ll be happy to develop that additional documentation for you, just as soon as the ALJ decides on all my appeals. They’re saying, like, two years or so. I’ll be keeping the Medicare payments till then.

I do hope the ALJ — especially after the OMHA Forum, at which providers pleaded their cases — takes time during this appeals hiatus to ask Medicare colleagues about policies and programs that could be contributing to this mountain of new appeals. Given the hardship that its decision will cause, the ALJ could be a hero by trying to provide a little balance to this scale.

This article originally appeared in the April 2014 issue of Mobility Management.

About the Author

Laurie Watanabe is the editor of Mobility Management. She can be reached at lwatanabe@1105media.com.

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