New rule would allow attorney adjudicators, precedential Council decisions

In light of the incredible administrative backlog of Medicare appeals, CMS has proposed some changes to the appeals process. The agency now finds it appropriate to allow the chair of the Departmental Appeals Board (DAB) to deem Medicare administrative council (MAC) decisions precedential. The Proposed rule also suggests allowing attorney adjudicators to issue decisions that do not involve a hearing, dismissals for withdrawn hearing requests, and remands for information.

Never going to catch up

In fiscal year (FY) 2014, each administrative law judge (ALJ) in the Office of Medicare Hearings and Appeals (OMHA) issued an average of 1,048 decisions and ordered over 450 other claims to be dismissed. Despite this increased productivity, the number of requests for hearings and reviews of QIC and IRE dismissal continue to grow. OMHA currently has the capacity adjudicate about 77,000 claims annually, but over 750,000 appeals were pending on April 30, 2016. In order to address these issues, HHS intends to implement new rules in an attempt to (1) request new resources for all levels of appeal; (2) reduce the number of pending appeals; and (3) reform legislation to allow new funding and new review authority.

Precedential decisions

MAC decisions are considered the final administrative decision, and once they are issued a party may proceed to judicial review. In 2004, HHS determined that precedential authority was not yet appropriate for these decisions, at least until after changes required under the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act (BIPA) (P.L. 106-554) and the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) (P.L. 108-173) were implemented. Now that they are, CMS proposes that the chair of the DAB have the authority to designate a MAC decision precedential in order to provide a “consistent body of final decisions of the secretary upon which [appellants] could determine whether to seek appeals.” CMS also believes that this would assist all adjudicators by providing clarity on some legal and policy issues.

When a decision is declared precedential, notice would be provided in the Federal Register, posted on an HHS website, and would bind all lower-level decision-makers. This includes all CMS components, HHS components that adjudicate under CMS jurisdiction, and on Social Security Administration (SSA) components that are also under CMS jurisdiction. The decision will no longer be binding if CMS revises the relevant authority or provision, such as manual instructions.

Additional Adjudicators

Certain appealable decisions by the SSA or Medicare contractors come with a right to a hearing before an ALJ. However, some hearing requests may be addressed without actually conducting a hearing. If the parties agree in writing that they do not wish to attend a hearing, or if the evidence supplied supports a finding for the appealing party on every issue, the ALJ may issue a decision on the record without a hearing. ALJs also receive a large number of requests to withdraw hearing requests. CMS proposes to allow attorney adjudicators to issue decisions in the following instances:

  • when decisions can be issued without a hearing;
  • dismissals when a hearing request is withdrawn; and
  • remands for information that can only be provided by CMS, CMS contractors, or at the direction of the MAC.

The rules would allow decisions and dismissals issued by attorney adjudicators to be reopened or appealed in the same manner as ALJ decisions. CMS states in its Proposed rule that allowing attorney adjudicators these powers would allow ALJs to focus on cases that include a hearing.