[Federal Register Volume 79, Number 205 (Thursday, October 23, 2014)]
[Notices]
[Pages 63398-63401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24637]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES


Medicare Program; Appellant Forum Regarding the Administrative 
Law Judge Hearing Program for Medicare Claim Appeals

AGENCY: Office of Medicare Hearings and Appeals (OMHA), HHS.

ACTION: Notice of Meeting.

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SUMMARY: This notice announces the second Office of Medicare Hearings 
and Appeals (OMHA) Medicare Appellant Forum. The purpose of this event 
is to provide updates to OMHA appellants on the status of OMHA 
operations and to relay information on a number of OMHA and CMS 
initiatives designed to reduce the backlog in the processing of 
Medicare appeals at the OMHA level and lower levels of the 
administrative appeals process.

DATES: 
    Meeting Date: The OMHA Medicare Appellant Forum announced in this 
notice will be held on Wednesday, October 29, 2014.
    The OMHA Medicare Appellant Forum will begin at 10:00 a.m. Eastern 
Standard Time (EST) and check-in will begin at 9:00 a.m. EST. It is 
anticipated the Forum will last until 3:00 p.m. EST.
    Deadline for Registration of Attendees and Requests for Special 
Accommodation: The deadline to register to attend the OMHA Medicare 
Appellant Forum and request a special accommodation, as provided for in 
the American's with Disabilities Act, is 5:00 p.m. EST, Friday, October 
24, 2014.

ADDRESSES: Meeting Location: The OMHA Medicare Appellant Forum will be 
held in the Cohen Auditorium of the Wilbur J. Cohen building located at 
330 Independence Ave. SW., Washington, DC 20024.
    A toll-free phone line and/or webcasting will be provided. 
Information on these options will be posted at a later date on the OMHA 
Web site; http://www.hhs.gov/omha/index.html.
    Registration and Special Accommodations: Individuals wishing to 
attend the OMHA Medicare Appellant Forum must register by following the 
on-line registration instructions located in section III of this notice 
or by contacting staff listed in the FOR FURTHER INFORMATION CONTACT 
section of this notice. Individuals who need special accommodations 
should contact staff listed in the FOR FURTHER INFORMATION CONTACT 
section of this notice.

FOR FURTHER INFORMATION CONTACT: Ren[eacute]e Johnson, (703) 235-8269, 
<a href="/cdn-cgi/l/email-protection#d7a5b2b9b2b2f9bdb8bfb9a4b8b997bfbfa4f9b0b8a1"><span class="__cf_email__" data-cfemail="364453585353185c595e58455958765e5e4518515940">[email protected]</span></a>. Alternatively, you may forward your requests via 
email to <a href="/cdn-cgi/l/email-protection#ace3ffe3e1e4ededdcdcc9c0c0cdc2d8eac3ded9c1ecc4c4df82cbc3da"><span class="__cf_email__" data-cfemail="c08f938f8d888181b0b0a5acaca1aeb486afb2b5ad80a8a8b3eea7afb6">[email protected]</span></a>; please indicate ``Request for 
information'' or ``Request for special accommodation'' in the subject 
line.

SUPPLEMENTARY INFORMATION:

I. Background

    The Office of Medicare Hearings and Appeals (OMHA), a staff 
division within the Office of the Secretary of the U.S. Department of 
Health and Human Services (HHS), administers the nationwide 
Administrative Law Judge hearing program for Medicare claim, 
organization and coverage determination, and entitlement appeals under 
sections 1869, 1155, 1876(c)(5)(B), 1852(g)(5), and 1860D-4(h) of the 
Social Security Act. OMHA ensures that Medicare beneficiaries and the 
providers and suppliers that furnish items or services to Medicare 
beneficiaries, as well as Medicare Advantage Organizations (MAOs) and 
Medicaid State Agencies, have a fair and impartial forum to address 
disagreements with Medicare coverage and payment determinations made by 
Medicare contractors, MAOs, or Part D Plan Sponsors (PDPSs), and 
determinations related to Medicare eligibility and entitlement, and 
income-related premium surcharges made by the Social Security 
Administration (SSA).
    The Medicare claim appeal process consists of four levels of 
administrative review within HHS, and a fifth level of review with the 
Federal courts after administrative remedies within HHS have been 
exhausted. The first two levels of review are administered by the 
Centers for Medicare & Medicaid Services (CMS) and conducted by 
Medicare contractors for Part A and Part B claim appeals, by MAOs and 
an independent review entity for Part C organization determination 
appeals, or

[[Page 63399]]

by PDPSs and an independent review entity Part D coverage determination 
appeals. The third level of review is administered by OMHA and 
conducted by Administrative Law Judges. The fourth level of review is 
administered by the HHS Departmental Appeals Board (DAB) and conducted 
by the Medicare Appeals Council. In addition, OMHA and the DAB 
administer the second and third levels of appeal, respectively, for 
Medicare eligibility, entitlement and premium surcharge 
reconsiderations made by SSA; a fourth level of review with the Federal 
courts is available after administrative remedies within HHS have been 
exhausted.
    The Medicare, Medicaid, and SCHIP Benefits Improvement and 
Protection Act of 2000 (Pub. L. 106-554), which added section 
1869(d)(1)(A) of the Social Security Act, provides for an 
Administrative Law Judge to conduct a hearing and render a decision 
within 90 days of a timely filed request for hearing. Section 
1869(d)(3) of the Social Security Act states that, if an ALJ does not 
render a decision by the end of the specified timeframe, the appellant 
may request review by the Departmental Appeals Board. Likewise, if the 
Departmental Appeals Board does not render a decision by the end of the 
specified timeframe, the appellant may seek judicial review. OMHA was 
established in July 2005 pursuant to section 931 of the Medicare 
Prescription Drug, Improvement, and Modernization Act of 2003 (Pub. L. 
108-173), which required the transfer of responsibility for the 
Administrative Law Judge hearing level of the Medicare claim and 
entitlement appeals process from SSA to HHS. OMHA was expected to 
improve service to appellants and reduce the average 368-day waiting 
time for a hearing decision that appellants experienced with SSA.
    OMHA serves a broad sector of the public, including Medicare 
providers, suppliers, and MAOs, and Medicare beneficiaries, who are 
often elderly or disabled and among the nation's most vulnerable 
populations. OMHA currently administers its program in five field 
offices, including the Southern Field Office in Miami, Florida; the 
Midwestern Field Office in Cleveland, Ohio; the Western Field Office in 
Irvine, California; the Mid-Atlantic Field Office in Arlington, 
Virginia; and the recently established field office in Kansas City, 
Missouri. OMHA uses video-teleconferencing (VTC), telephone 
conferencing, and in-person formats to provide appellants with 
hearings.
    At the time OMHA was established, it was envisioned that OMHA would 
receive the claim and entitlement appeals workload from the Medicare 
Part A and Part B programs, and organization determination appeals from 
the Medicare Advantage (Part C) program, as well as coverage 
determination appeals from the Medicare Prescription Drug (Part D) 
program and appeals of Income Related Monthly Adjustment Amount (IRMAA) 
premium surcharges assessed by SSA. With this mix of work at the 
expected levels, OMHA was able to meet the 90-day adjudication time 
frame.
    However, in recent years, OMHA has experienced a significant and 
sustained increase in appeals workload that has compromised its ability 
to meet the 90-day adjudication time frame. In addition to the 
expanding Medicare beneficiary population and increased utilization of 
services across that population, the increase in appeals workload has 
resulted from a number of changes in the Medicare claim review and 
appeals processes in recent years, including:
    <bullet> Medicaid State Agency (MSA) appeals of Medicare coverage 
denials for beneficiaries dually enrolled in both Medicare and 
Medicaid. These appeals were previously addressed through a 
demonstration project that employed an alternative dispute resolution 
process to determine whether the Medicare or Medicaid program would pay 
for care furnished to the dually enrolled beneficiaries. The 
demonstration project ended in 2010, and the MSA appeals entered the 
standard administrative appeals process, increasing appeals workloads 
throughout the Medicare claim appeal process, including at OMHA.
    <bullet> The Fee-for-Service Recovery Audit (RA) program (also 
known as the Recovery Audit Contractor (RAC) program), which was made 
permanent by section 302 of the Tax Relief and Health Care Act of 2006 
(Pub. L. 109-432). Appeals from the RA program began to enter the 
administrative appeals process at the CMS contractor levels in fiscal 
year 2011. In fiscal year 2012, OMHA began receiving hearing requests 
arising from the RA program that exceeded projections.
    <bullet> CMS has implemented a number of changes to enhance its 
monitoring of payment accuracy in the Medicare Part A and Part B 
programs, which have increased denial rates and likely contributed to 
increased appeals. For example, based on recommendations from the HHS 
Office of Inspector General (OIG), in 2009, CMS tightened its 
methodologies related to how it calculates the Medicare payment error 
rate, with a view towards improving provider claims documentation and 
compliance with Medicare's billing, coverage, and medical necessity 
requirements. In addition, Medicare Administrative Contractors (MACs) 
initiated a series of focused medical review initiatives, which 
increased the overall number of denied claims. CMS also initiated 
efforts to eliminate payment error and fraud based on Executive Order 
13520 and the Improper Payments Elimination and Recovery Act of 2010 
(Pub. L. 111-204), resulting in additional denied claims and the 
identification of overpayments.
    With the increase in overall claim denials, the administrative 
appeals process has experienced an overall increase in appeal requests. 
At OMHA, the greater than anticipated workload increase resulted in a 
backlog of appeals (that is, appeals that cannot be heard and decided 
within the adjudication time frame) starting in fiscal year 2012, with 
a 42% increase from fiscal year 2011 in the number of claims appealed 
to OMHA. In fiscal year 2013, the number of claims appealed to OMHA 
more than doubled from fiscal year 2012, with a 123% increase, further 
contributing to the backlog of cases and resulting in a substantial 
increase in the adjudication time frame. The increase in appealed 
claims from the RA program was particularly high in fiscal year 2013, 
with a 506% increase in appealed RA program claims over fiscal year 
2012, versus a 77% increase in appealed claims not related to the RA 
program during that same period of time.
    In 2013, CMS issued an Administrator Ruling (published on March 18, 
2013, 78 FR 16614) and finalized new rules (published on August 19, 
2013, 78 FR 50495) designed to clarify criteria for new (fiscal year 
2014) Medicare Part A inpatient hospital admissions, which comprised 
the disputed issues in a majority of RA program appeals, and to clarify 
policies at issue in appeals of inpatient claim denials under the 
existing rules. In addition, CMS expanded the scope of alternative Part 
B services that could be billed if a Part A inpatient admission was 
denied and, as part of the ruling, for a limited time allowed hospitals 
to submit Part B claims for those services beyond the one-year claim 
filing deadline. Separately, CMS also suspended most RA program audits 
of Part A inpatient hospital admissions under the new inpatient 
admission criteria (commonly referred to as the two-midnight rule), 
which was effective for inpatient claims with admission dates on and 
after October 1, 2013, in order to offer providers time to become 
educated on the two-midnight rule. The suspension of audits for new 
admissions was extended for claims with dates of

[[Page 63400]]

admission through March 31, 2015, pursuant to section 111 of the 
Protecting Access to Medicare Act of 2014 (Pub. L. 113-93). CMS is also 
making improvements to the RA program that are designed to increase the 
accuracy of Recovery Audit determinations and to reduce the burden on 
providers as well as the number of payment denials that providers and 
suppliers appeal.
    OMHA also took measures to mitigate the effects of the workload 
increase at the Administrative Law Judge level. One of the immediate 
measures taken was to ensure that the comparatively small numbers of 
beneficiary-initiated appeals were prioritized. For the remaining 
cases, OMHA has deferred assignments of new requests for hearing until 
an adjudicator becomes available, which allows appeals to be assigned 
more efficiently on a first in/first out basis as an Administrative Law 
Judge's case docket is able to accommodate additional workload. 
Nevertheless, OMHA Administrative Law Judges continue to conduct 
hearings on their pending workloads and have nearly doubled their 
productivity from Fiscal Year 2009 to Fiscal Year 2013.
    On February 12, 2014, OMHA hosted a Medicare Appellant Forum (see 
OMHA's Notice of Meeting, published on January 3, 2014, 79 FR 393). The 
Medicare Appellant Forum was conducted to provide the appellant 
community with an update on the status of OMHA operations; relay 
information on a number of OMHA initiatives designed to mitigate the 
backlog in the processing of Medicare appeals at the Administrative Law 
Judge level; and provide information on measures that appellants could 
take to make the administrative appeals process work more efficiently 
at the Administrative Law Judge level. In addition, CMS and the DAB 
participated in the forum and shared information on operations at their 
respective appeals levels. As conveyed at the Medicare Appellant Forum, 
HHS is committed to addressing the challenges facing the Medicare claim 
and entitlement appeals process, and is continuing to explore potential 
initiatives to address the workload increase and reduce the backlog of 
appeals.
    Since the Medicare Appellant Forum, OMHA has implemented two pilot 
programs to provide appellants with meaningful options to address 
claims pending at the Administrative Law Judge level of appeal, in 
addition to the existing right to escalate a request for hearing when 
the adjudication time frame is not met. OMHA is providing appellants 
with an option to use statistical sampling during the Administrative 
Law Judge hearing process, which enables appellants to obtain a 
decision on large numbers of appealed claims based on a sampling of 
those claims. OMHA is also providing appellants with an option for 
settlement conference facilitation, which provides appellants with an 
independent OMHA facilitator to discuss potential settlement of claims 
with authorized settlement officials through an alternate dispute 
resolution process. Additional information on these two pilots can be 
found on OMHA's Web site, http://www.hhs.gov/omha.
    OMHA also continues to pursue new case processing efficiencies and 
an electronic case adjudication processing environment (ECAPE) to bring 
further efficiencies to the appeals process.
    In addition to these initiatives, on August 29, 2014, CMS announced 
that for claims denied based on inappropriate inpatient status for 
dates of admission prior to October 1, 2013, CMS is offering an 
administrative agreement to acute care hospitals and critical access 
hospitals willing to withdraw pending appeals in exchange for partial 
payment (68 percent) of the denied inpatient claim (for details 
regarding the option, see http://go.cms.gov/InpatientHospitalReview). 
In the CMS Ruling 1455-R (published March 18, 2013) and the Fiscal Year 
2014 Hospital Inpatient Prospective Payment System Final Rule 
(published August 22, 2013), CMS clarified the inpatient admission 
policy for Medicare Part A payment and permitted hospitals to rebill an 
expanded scope of medically necessary Part B services under Part B. For 
appeals involving a date of admission prior to October 1, 2013, the 
hospitals are permitted to rebill under Part B after they have ended or 
exhausted their Part A inpatient appeals. However, only a limited 
number of hospitals have participated in the rebilling option. This new 
CMS administrative agreement option is an alternative to that rebilling 
process, and, for those hospitals that elect this option, alleviates 
the administrative burden of current appeals on both the provider and 
Medicare.
    The first OMHA Medicare Appellant Forum, held in February 2014, 
focused on informing the appellant community of the extent of the 
current workload challenges and potential initiatives to address those 
challenges. This second OMHA Medicare Appellant Forum will address new 
initiatives, OMHA processes and procedures to achieve meaningful 
backlog reduction strategies and process efficiencies, and current 
workload status.

II. Medicare Claim Appeal Appellant Forum and Conference Calling/
Webinar Information

A. Format of the OMHA Medicare Appellant Forum

    As noted in section I of this notice, OMHA is conducting this 
outreach to appellants in the Medicare claim appeals process to provide 
updates on initiatives to mitigate a backlog in processing Medicare 
appeals at the OMHA level. Information regarding the OMHA Medicare 
Appellant Forum can be found on the OMHA Web site at: http://www.hhs.gov/omha/index.html.
    The majority of the forum will be reserved for presentations about 
OMHA and CMS initiatives, a presentation from the HHS Departmental 
Appeals Board, and processes and policy presentations. The time for 
each presentation will be approximately 30 to 60 minutes and will be 
based on the material being addressed in the presentation.
    Questions and comments from in-person attendees will be solicited 
at the end of each planned session specific to the presentation, and 
during a separate question and answer session as time permits. In 
addition, questions related to the OMHA level of the Medicare claim 
appeals process will also be accepted on an attendee's registration for 
potential response during the appropriate presentation.

B. Conference Call, Live Streaming, and Webinar Information

    For participants who cannot attend the OMHA Medicare Appellant 
Forum in person, there will be the option to attend via teleconference 
and there may be an option to view the conference via webcasting. 
Information on the availability of these capabilities will be posted on 
the OMHA Web site at: http://www.hhs.gov/omha/index.html. Please 
continue to check the Web site for updates on this upcoming event.
    Disclaimer: We cannot guarantee reliability of webcasting.

III. Registration Instructions

    The OMHA Headquarters Office is coordinating attendee registration 
for the OMHA Medicare Appellant Forum. While there is no registration 
fee, individuals planning to attend the forum must register to attend. 
In-person participation is limited to two (2) representatives from each 
organization. Additional individuals may participate by telephone 
conference or, if available, by webcasting. Information on 
participation by telephone conference or webcasting will be posted on 
the OMHA Web site at: http://www.hhs.gov/omha/index.html. Registration 
may be

[[Page 63401]]

completed online at the following web address: http://www.hhs.gov/omha/index.html. Seating capacity for in-person attendees is limited to the 
first 400 registrants.
    After completing the registration, online registrants will receive 
a confirmation email which they should bring with them to the meeting. 
If unable to register online, please register by sending an email to 
<a href="/cdn-cgi/l/email-protection#d29d819d9f9a9393a2a2b7bebeb3bca694bda0a7bf92babaa1fcb5bda4"><span class="__cf_email__" data-cfemail="450a160a080d04043535202929242b31032a373028052d2d366b222a33">[email protected]</span></a>. Please include first and last name, 
title, organization, address, office telephone number, and email 
address. If seating capacity has been reached, a notification will be 
sent that the meeting has reached capacity.

IV. Security, Building, and Parking Guidelines

    Because the OMHA Medicare Appellant Forum will be conducted on 
Federal property, for security reasons, any persons wishing to attend 
these meetings must register by the date specified in the DATES section 
of this notice. Please allow sufficient time to go through the security 
checkpoints. It is suggested that you arrive at the Wilbur J. Cohen 
building, located at 330 Independence Ave. SW., Washington, DC 20024, 
no later than 9:30 a.m. EST if you are attending the forum in person.
    Security measures include the following:
    <bullet> Present of photographic identification to the Federal 
Protective Service or Guard Service personnel.
    <bullet> Passing through a metal detector and inspection of items 
brought into the building. We note that all items brought to the Cohen 
Building, whether personal or for the purpose of demonstration or to 
support a demonstration, are subject to inspection. We cannot assume 
responsibility for coordinating the receipt, transfer, transport, 
storage, set-up, safety, or timely arrival of any personal belongings 
or items used for demonstration or to support a demonstration.

    Note: Individuals who are not registered in advance will not be 
permitted to enter the building and will be unable to attend the 
forum in person.

    Attendees must enter the Cohen Building thru the C Street entrance 
and proceed to the registration desk. All visitors must be escorted in 
areas other than the auditorium area and access to the restrooms on the 
same level in the building. Seating capacity is limited to the first 
400 registrants.
    Parking in Federal buildings is not available for this event. In 
addition, street side and commercial parking is extremely limited in 
the downtown area. Attendees are advised to use Metro-rail to either 
the Federal Center SW station (Blue/Orange line) or the L'Enfant Plaza 
station (Yellow/Green or Blue/Orange lines). The Wilbur J. Cohen 
building is approximately 1\1/2\ blocks from each of these Metro-rail 
stops.

(Catalog of Federal Domestic Assistance Program No. 93.770, 
Medicare--Prescription Drug Coverage; Program No. 93.773, Medicare--
Hospital Insurance; and Program No. 93.774, Medicare--Supplementary 
Medical Insurance Program)

    Dated: October 9, 2014.
Nancy J. Griswold,
Chief Administrative Law Judge, Office of Medicare Hearings and 
Appeals.
[FR Doc. 2014-24637 Filed 10-22-14; 8:45 am]
BILLING CODE 4150-46-P


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