(Medicare Program Integrity Manual)

Providers Indirectly Affected By  Disaster   For providers that are indirectly affected by a disaster (e.g., an interruption of mail service caused by a grounding of US commercial air flights), MACs and Recovery Auditors shall take the following actions:  For ADRs, extend the parameter that triggers denial for non- receipt of medical records from 45 calendar days to 90 calendar days. ADRs shall reflect that the response is due in 90 calendar days rather than 45 calendar days. This action will prevent most inappropriate denials and unnecessary increases in appeals workload.   If the MAC or Recovery Auditor receives the requested documentation after a denial has been issued but within a reasonable number of days beyond the denial date, the MAC or Recovery Auditor has the discr etion to reopen the claim and make a medical review determination. Many reviewers follow a standard 15 calendar days although MACs and Recovery Auditors shall make these decisions on a case-by- case basis. The MACs and Recovery Auditors shall allocate the w orkload, costs and savings to the appropriate MR activity.   The MACs and Recovery Auditors shall review reopened claims retroactively to the date of the disaster. The MACs data analyses shall take into consideration the expected increase in certain services in disaster areas.   E. Impact on MAC Performance Evaluations  During performance evaluations, CMS will consider a waiver to all MAC MR requirements, as necessary, to allow MACs the flexibility to handle issues that arise in the aftermath of a disaster. Examples of such waived requirements include workload targets and any other MR administrative rules. MACs shall retain documentation of how their MR operations were affected during the disaster and make it available to Performance Evaluation Team s and other CMS Staff, upon request.  3.9 - Defending Medical Review Decisions at Administrative Law Judge (ALJ) Hearings  (Rev . 853, Issued: 01- 04-19; Effective: 02 -05-19; Implementation: 02 -05-19)  This section in its entirety applies to MACs. This section applies to Recovery Auditors, CERT, UPICs, and the SMRC, as indicated in their SOWs.  Overview:   Effective March 20, 2017 several changes were made to the regulations that outline the activities related to contractor participation in ALJ hearings. Under the new regulations, CMS contractors are limited to 3 roles in an ALJ hearing: a Participant, a Party, or a Witness (defined in detail below). These changes are outlined in 42 CFR  405.1010 and 42 CFR 405.1012.     A physician overseeing participati on shall be a current Contractor Medical Director (CMD), a contractor employed physician or any combination thereof. Nurses and other staff may assist the physician with the tasks described in this section. While the physician is generally the primary indi vidual overseeing and/or taking party or participant status, a contractor may elect to have an attorney or clinician take party or participant status, or another experienced qualified individual if approved by their COR. In either situation, the contractor  must be prepared to discuss details related to the facts of each claim under appeal, the relevant coverage policies and payment requirements, including any clarification required on decisions made earlier in the appeals process. For post -pay audit/overpayment cases, the contractor must be prepared to discuss the background on how the provider/supplier was selected for review, results of the sample case adjudications, as well as matters related to the extrapolation methodology and/or processes.   This sectio n establishes expectations related to the contractors participation and associated coordination activities, although CMS may provide additional guidance and direction as needed. Further rules and procedures related to the ALJ hearing process are contained  in 42 CFR 405.1000.    The MAC shall capture and report the ALJ participation and party data in their monthly status report to CMS. Contractors shall record the frequency of their support as a witness in the narrative field of the monthly status reports. Contractors shall ensure that JOAs are sufficient to support the ALJ hearing process and related coordination activities.   Role of the Participant:    In accordance with the revised regulation under 42 CFR Part 405.1010(c) and (d), all contractors part icipation as a participant (i.e., non -party) shall be limited to submitting written testimony and/or position papers (except in those instances when non- party participants are able to provide testimony to clarify factual or policy issues in the caseas not ed in the scenario below) .    The regulations do not prohibit multiple CMS contractors and/or related entities from participating in the ALJ hearing as a participant.  However, if no contractor or CMS invokes party status, then the first entity to submit their election to participate as  a non-party participant to the ALJ may participate in the oral hearing (limited to clarification of factual or policy issues, as requested by the ALJ). All other entities may participate, but are precluded from the hearing and may only submit written testimony and/or position papers as indicated in 42 CFR 405.1010(d)(1) and (2). If the contractor is able to participate in the hearing, they shall be adequately prepared to respond to questioning by the ALJ regarding all issues related to the claims under ap peal. Because participation status does not include the same rights as full party status, the contractor may not call witnesses or cross-examine witnesses of another party, as indicated in 42 CFR 405.1010(c)(1).     (Note: At this time, CMS would not expect contractors to be responsible for clarifying factual or policy issues for cases/claims outside of their jurisdiction.)  Role of the Party:    Contractors shall invoke party status in ALJ hearings in accordance with the regulatory provisions in 42 CFR  405.1012 and the CMS-prescribed prioritization process, described below, for cases or items/services of interest to CMS. Under 42 CFR 405.1012(d)(1), the first contractor to invoke party status with the ALJ is made the party to the hearing. All other contractors who invoke party status for that particular hearing are made participants and are precluded from the hearing (See Role of the Participant section above).  Note: At this time, CMS would not expect contractors to be responsible for representing cases /claims outside of their jurisdiction.   If the contactor is interested in a particular case, but is precluded from invoking party status based on the CMS- prescribed prioritization of cases or otherwise, the contractor may request leave from the ALJ in accordance with 42 CFR 405.1012(d)(2).  The request for leave process occurs outside of the Administrative Qualified Independent Contractor (AdQIC) portal, described below. In submitting a request for leave to the ALJ, the contractor is formally requesting that the ALJ grant the contractor the right to be a secondary party to the hearing.  Requests for leave to the ALJ shall also include the reason(s) why the contractor believes that their presence as a secondary party in the ALJ Hearing is necessary. The ALJ shall make the determination as to whether the contractor is granted leave. If this is approved, the contractor shall become a secondary party to the hearing. Alternatively, if denied, the contractor may participate as a participant or as a witne ss, based on the circumstance. (See Role of Witness section for additional information).  As a party, the contractor is able to orally participate in the hearing and may file position papers, call witnesses, and/or cross- examine witnesses of other parties.  The contractor shall submit any position paper or additional evidence requested by the ALJ in accordance with 42 CFR 405.1012(c)(2)(i) and (ii). The contractor shall be adequately prepared to respond to questioning by the ALJ or other parties regarding a ll issues related to the claims under appeal. As a party to the hearing, contractors are subject to discovery by the other party to the hearing in accordance with 42 CFR 405.1037.  For Notice of Hearings (NOHs) received that include issues deemed significant by CMS or the contractor, the contractor shall, at a minimum:   Invoke party status in ALJ cases per volume of ALJ cases funded for this activity;   Participate in any pre-ALJ hearing conference calls, as needed, with other contractors (as facilitated by  the appropriate Qualified Independent Contractor (QIC));    Coordinate with Medical Director(s) or related personnel from other contractors intending to participate as consultants/expert witnesses, as necessary, in accordance with 42 CFR 405.1010(d)(3). In addition, the MAC shall coordinate with other contractors for those hearings in which they do not invoke party status, but decide to participate as a consultant/expert witness; and/or,   Participate in the hearings as a party via telephone, video teleconferencing, or in-person.    Role of the Witness:    If the AL J declines the request for contractor leave on a particular hearing, the contractor may be called as a witness by CMS or another CMS contractor that is a party  to the hearing. A determination regarding the need for a witness by the participating party shall be determined by the party and communicated to the contractor prior to the hearing. Contractors should, at their discretion, participate as a witness in any case in which another CMS contractor and/or CMS has requested their support in a hearing. Contractors shall notify the requesting party no later than 10 days prior to the scheduled hearing in those instances in which contractors are unable to support the hearing as a witness. As a witness, contractors shall be tasked with supporting the party to the hearing in responding to policy or factual issues related to a particular case through direct examination and is subject to cross examination by the opposing party.     Note: Contractors who are interested in acting as a witness may indicate their interest via the AdQIC Portal. CMS contractors may indicate interest in participating as a witness without first making a request for leave with an ALJ. Additionally, in accordance with 42 CFR 405.1020, witness designations/elections shall be made during the coordination of interest/role selection process, as described below, and shall be included in the response to a given NOH.  .     3.9.1 - Election of Status  (Rev. 10365; Issued: 10-02- 20; Effective: 08 -27-20; Implementation: 08-27-20)  The contractor shall establish a process for assessing the NOHs received to determine which cases should be selected for participation, as well as the type of participation (participant, party, or witness) to be employed. Factors to be examined should include, but not be limited to: originator of initial denial, policy implications, dollars at issue, program integrity matters, and the extent to which a particular issue is, or has been, a recurring issue at the ALJ level of appeal.   Contractors shall, for those cases in which they were the medical reviewer issuing the denial subject to appeal, have a prioritized ability to invoke party status (in lieu of other appeals support contractors). This process is further described below.  A. Election of Participation Status  Prior to Receipt of a Formal NOH   The election to participate as a participant shall be made consistent with 42 CFR  405.1010 and can be done either prior to receipt of a formal NOH or after the receipt of a formal NOH.   The regulations allow CMS contract ors to elect to participate as a participant before issuance and/or receipt of the formal NOH. See section of 42 CFR 405.1010(b)(1) for additional information. If the contractor elects to participate before the receipt of the NOH, it shall send written no tice of its intent to the assigned ALJ or attorney adjudicator, or the designee of the Chief ALJ, if no contact assigned yet, and to all parties on the reconsideration (per the prescribed OMHA process) within 30 calendar days after notification that a requ est for hearing had been filed. In accordance with the regulations, a position paper or written testimony must either be submitted within 14 calendar days of an election to participate, if no hearing has been scheduled, or no later than 5 calendar days prior to the hearing, if a hearing is scheduled, unless the ALJ grants additional time to submit the position paper or written testimony. Contractors should note that there is a risk that the case may be later resolved by the ALJ, or an Attorney Adjudicator w ithin the OMHA, without a hearing.  B. Election of Participation or Party Status Following Receipt of the Formal NOH   The election to be a participant or a party to a hearing after receipt of the formal NOH shall be made consistent with 42 CFR 405.1010(b) or 42 CFR 405.1012, respectively, and the CMS-prescribed prioritization process, described below. If through the CMS- prescribed prioritization process it is determined that the contractor may act as either the party or a participant to a hearing, elections of participation must be sent by the Contractor within 10 calendar days of receipt of the NOH at the AdQIC to all parties listed on the NOH. Submission of a position paper, written testimony, and/or evidence must be submitted no later than five calendar days before the date of the scheduled hearing. Copies of these items must also be sent to those parties listed on the NOH in accordance with 42 CFR 405.1010(c)(3)(ii) and 42 CFR 405.1012(c)(2)(ii).  C. CMS -prescribed Prioritization Process and AdQIC Portal for Providing a Response to the Formal NOH