Kusserow’s Corner: Former Medicare Appellate Judge Offers Tips for Managing Claims Appeals

To provide readers with a better understanding of the current environment for claims appeal, I interviewed Tom Herrmann, JD. He is among the leading experts in the country on this subject who served six years as an Appellate Judge for the HHS Medicare Appeals Council and more than 20 years in the HHS Office of Inspector General (OIG) Office of General Counsel. Herrmann has remained in at the forefront of Medicare claims appeals as a consultant. He believes that providers today must get smarter in managing Medicare claims appeals, in light of the two-year moratorium announced by the Office of Medicare Health Appeals (OMHA) on new cases being accepted for administrative law judge (ALJ) appeal. What this means is that there will be a huge backlog for years to come. Herrmann stated that, “This can be an eternity for many providers who believe they have a meritorious case for appeal for those challenging Medicare claims denials.” Herrmann believes that “More must be done by providers to prevail against this barrier and it must begin by avoiding common mistakes that can damage an appeal before it even gets started. Unfortunately, many appeals are doomed from the beginning, even before it gets to an ALJ, for failing to get off on the right foot. This can only increase the anguish of the long wait for appealing cases.”


Herrmann believes there is obviously no established formula for securing a timely and favorable decision from an ALJ reviewing the denial of Medicare coverage and payment of claims. However, from his experience he knows that providers and their legal counsel, by following a variety of sound practices, techniques, and methods, can assist in expediting the claims appeals process and significantly improve chances for a timelier and better appeals decision. Unfortunately, he has observed how some parties following bad practices led to increased delays in decisions, and worse, contributed to undesirable decisions. Herrmann offered the following suggestions and tips to improve appeal outcomes:

  • It is critical to properly organize and present evidence at the qualified independent contractor (QIC) level of review. This not only improves the chances for a favorable decision at that level, but failing to do this can make an easy decision at the ALJ level to rule against claimants.
  • The manner and submission of a properly prepared “ALJ Appeal Memorandum” or “Prehearing Brief” prior to the scheduled hearing is critical to being successful in appeals, prior to and including at the ALJ level. Herrmann observed, however, that a great many of such presentations fall very short of what is needed.
  • The appeal documents should not be too long, or too short. Herrmann sometimes uses the analogy of “Goldilocks and the Three Bears,” wherein Goldilocks finds three beds, one too long, one too short, and one just right. This is used to make the point that providing excessively long and detailed documents in submitting an appeal can be as damaging, in that it can lead to confusion, delays, and negative decisions to appellants. The same holds true with overly short briefs and document support that is too skimpy, which can damage the case as well. Providing the “just right” amount is the best way to ensure the case is not put aside or ruled upon negatively.
  • To be “just right,” it is important to ensure all applicable legal authority, evidence, and technical issues to be decided are properly presented in the appeal in proper form, format, and content. Herrmann emphasizes that every case presents different statutory and evidentiary issues. As such, to the extent that an appellant can provide helpful guidance and assistance to a reviewing authority in identifying the key legal authority and evidence in a case, the greater the likelihood of securing a more timely and more favorable decision.
  • Herrmann sees appellants placing themselves in the position of a reviewing authority and deciding what they would need to make a clear and decisive determination. In short, the more the appellate can make the job easier for the reviewing authority, the better the chances of a swift and solid determination.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2014 Strategic Management Services, LLC. Published with permission.