(April 4, 2016) In an effort to reduce the enormous backlog of pending Administrative Law Judge (ALJ) appeals, the Centers for Medicare and Medicaid Services (CMS) recently announced that it has expanded the pilot Settlement Conference Facilitation (SCF) process to include Part A claims. This process, which was previously only available to providers with pending Part B appeals, is conducted by the Office of Medicare Hearings and Appeals (OMHA). OMHA is responsible for adjudicating ALJ hearing requests and is organizationally separate from CMS. The SCF is performed by an OMHA staff attorney, who will use mediation principles in an effort to help the provider and CMS reach a settlement agreement. Because the SCF process is still a pilot program, OMHA has announced several limitations on SCF eligibility:
- The provider must have filed its ALJ hearing request on or before 12/31/15, and the request must meet all applicable requirements for a complete and timely ALJ appeal.
- SCF must include all claims for the same or similar services for which the provider has filed an ALJ appeal.
- The provider must have at least 50 claims at issue with a total amount in controversy of more than $20,000 but less than $100,000.
- The claims must not currently be scheduled for an ALJ hearing.
To initiate SCF, a provider may submit an “Expression of Interest” form to OMHA, which will then perform a review of its system to ensure the provider meets eligibility requirements. Alternatively, OMHA may send notice to a provider that it is eligible for the SCF process. The provider and CMS then have 15 days to respond to the notification and agree to participate in the conference. If a settlement conference is conducted and the parties reach an agreement, the provider will be required to stipulate to the dismissal of its pending ALJ appeal(s) as to all claims subject to the settlement. Otherwise, both the provider and CMS may decline to participate in SCF or decline to accept any offer extended by the other party. If no agreement is reached, the provider’s claims will be returned to the hearing process for adjudication before an ALJ.
This expansion of the pilot SCF program appears to be aimed principally at high volume appellants, i.e. individual Medicare providers with dozens or hundreds of pending claim appeals. Aside from those types of providers, it is unclear how many appellants may avail themselves of the expanded SCF process due to the narrow eligibility criteria. For example, many Part A claims can be worth several thousand dollars each. Therefore, it would be difficult for a provider to meet the minimum 50-claim threshold while also not simultaneously exceeding the $100,000 amount in controversy ceiling.
If you believe that you may be eligible for this new SCF program, you should carefully consider whether to submit an Expression of Interest to OMHA. On the one hand, the financial strain resulting from non-payment of claims denied on a pre-payment basis or the recoupment of monies for claims denied upon post-payment review could make SCF an attractive option for you. This is particularly true if you are not inclined to wait 27 months for OMHA to process and decide your appeal. On the other hand, there could be some drawbacks to SCF. For example, OMHA has announced that, even if a settlement amount is agreed upon by the parties and payment is made for some claims, those claims will still be considered “denied” in Medicare’s claims processing systems. Furthermore, providers will not be able to selectively submit some claims to SCF while moving forward with ALJ hearing requests for others; SCF must include pending appeals for all claims for the same or similar services from a given provider.
If you have questions regarding the new SCF process, you should contact an experienced attorney to help weigh your options. In the event you elect to move forward in an effort to settle your pending claims, we strongly recommend that you retain counsel to represent you during that process in order to help reach a settlement that is as beneficial to you as possible.
Liles Parker attorneys assist providers across the country with all matters related to claim appeals, reimbursement, enrollment, compliance, and corporate formation / transactions. If you have questions or concerns about a pending Medicare claim appeal, please contact Adam Bird for a free consultation. He can be reached at: 1 (800) 475-1906.