HHS developing new system to speed PRRB, other appeal processes

HHS and its subagencies continue to struggle with eliminating the backlog of appeals that has led to delays in payments to providers and litigation trying to get HHS to meet statutory requirements for hearing appeals. The two main appeals backlogs relate to Provider Reimbursement Review Board (PRRB) decisions (appeals by providers of final determinations by Medicare contractors) and individual appeals for Medicare coverage, payment, and premiums brought before the Office of Medicare Hearings and Appeals (OMHA).

PRRB

CMS is developing a system to electronically track and file PRRB and Medicare Geographic Classification Review Board (MGCRB) decisions, according to CMS officials speaking at a conference sponsored by the American Health Lawyers Association at the end of March. The current appeals process relies heavily on a manual, snail mail process that has added to the time it takes for parties to file all papers in preparation for a hearing. The “Office of Hearings Case and Document Management System (OH CDMS)” should be ready for use by the end of 2017. The OH CDMS will be accessible through the CMS Enterprise portal.

Using the new system, parties may:

  • file appeal requests
  • upload position papers, jurisdictional documents, and other supporting documentation
  • view documents issued by Board or filed by opposing party
  • manage issues raised in individual appeals and providers participating in groups
  • request other actions such as change in representative, expedited judicial review, mediation, etc., and
  • monitor case status

This new system also will be used by CMS Hearing Officers who hear appeals not covered by other CMS or HHS appeal avenues, such as:

  • Risk Adjustment Data Validation (RADV)
  • Medicare Advantage/Prescription Drug Plan (MA/PD)
  • Medicaid State Plan Amendments
  • Retire Drug Subsidy Determinations (RDS)
  • Organ Procurement Organizations (OPO)

The need for a more efficient way of handling all the filings related to an appeal was underscored by a presentation by Sue Anderson, PRRB chairperson. She noted that the PRRB currently has more than 10,000 cases on its docket. In fiscal year 2016, the PRRB issued 27 decisions that closed 66 cases; 147 expedited judicial determinations; and 497 jurisdictional determinations, so it has a long way to go to work through its backlog.

OMHA appeals

Issues with PRRB appeals aren’t even the most serious ones facing HHS. The Office of Medicare Hearings and Appeals (OMHA) has a backlog of hundreds of thousands of administrative appeals, and the American Hospital Association is engaged in long-standing litigation with HHS trying to force HHS to hold Administrative Law Judge appeals within 90 days. Currently, these appeals take 10 times longer, and the backlog grows every year. A recent filing by HHS in the litigation shows the seriousness of the issue: as of March 5, 2017, there were 667,326 pending appeals; HHS projects the number of pending appeals to grow to 1,009,768 by the end of FY 2021 (September 30, 2021).

OMHA is looking at a number of ways to deal with the backlog; (see OMHA trying to speed claims appeals process, April 18, 2017). One solution is legislation. Speaking at the Health Care Compliance Association (HCCA) Compliance Institute at the end of March, Kimberly Brandt, Chief Oversight Counsel for the U.S. Senate Committee on Finance, noted that the Senate is considering re-introducing the “Audit & Appeal Fairness, Integrity, and Reforms in Medicare Act.” The bill “seeks to increase coordination and oversight of government audit contractors while implementing new strategies to address growing number of audit determination appeals that delay taxpayer dollars from reaching the correct source,” according to Brandt. The bill also would encourage the use of voluntary alternate dispute resolution process to allow for multiple pending claims with similar issues of law or fact to be settled as a unit, rather than as individual appeals.

OMHA trying to speed claims appeals process

The Medicare appeals backlog, which at its pinnacle had more than 650,000 claims waiting for adjudication before an administrative law judge (ALJ), is shrinking, according to Office of Medicare Hearings and Appeals (OMHA) chief ALJ Nancy Griswold. Griswold told attendees at the Health Care Compliance Association’s (HCCA) Compliance Institute that OMHA is pursuing a number of initiatives to reduce the backlog and speed claim resolution. Joined by Andrew B. Wachler of Wachler & Associates, Griswold discussed policy and regulatory changes to the appeals process, and Wachler shared best practices.

OMHA is doing a demonstration project using voluntary formal telephone discussions with durable medical equipment (DME) suppliers in Medicare Administrative Contractor (MAC) Jurisdictions C & D. These discussions give the supplier an opportunity to present facts and additional documentation to support resolution of the appeal. According to Griswold, over 5,000 appeals have favorably resolved through the demonstration project, while more than 16,000 have been remanded to reopen or resolve the claim favorably. The agency is also working on settlement conference facilitation (resolving more than 10,000 appeals since June 2014), adjudication through statistical sampling, and use of a senior attorney on the record.

Griswold also discussed OMHA’s plans for the Electronic Case Adjudication Processing Environment (ECAPE). Release 1, which consists of a public portal for case intake and appellants, is scheduled for Spring 2017, with additional releases planned through Summer 2018.

Wachler explained that preparation is key for attorneys representing clients in appeals before OMHA, and explained that best practices include prominently listing the Medicare Appeal Number, ensuring that all information submitted is accurate and consistent, documenting proof of service, submitting only one request per Medicare Appeal Number, and keeping track of all due dates. He also recommended that attorneys wait until an ALJ is assigned to the case before attaching evidentiary submissions or additional filings; rather than submitting that information to OMHA Central Operations, Wachler says it can be directly submitted to the ALJ.

OIG reviews MassHealth and its Medicaid data and information system safeguards

MassHealth failed to adequately safeguard data and information systems through its Medicaid Management Information System (MMIS) according to an audit by the HHS’ Office of Inspector General (OIG) undertaken to determine whether Massachusetts safeguarded MMIS data as required under federal requirements.

What is MMIS?

The MMIS is “an integrated group of procedures and computer processing operations (subsystems) developed at the general design level to meet principal objectives” which are: Title XIX program control and administrative costs; service to recipients, providers and inquiries; operations of claims control and computer capabilities; and management reporting for planning and control. States receive 90 percent federal financial participation (FFP) for design, development, or installation of MMIS and 75 percent FFP for operation of state mechanized claims processing and information retrieval systems.

MassHealth MMIS

The Massachusetts Executive Office of Health and Human Services is responsible for administering the state Medicaid program, commonly known as MassHealth, and information technology architecture, maintenance, and support is provided by the Massachusetts Office of Information Technology. Application support is provided through a contract with Hewlett-Packard.

The audit

Audits of information security controls are performed routinely on states’ computer systems used to administer HHS-funded programs and states are required to implement computer system security requirements and review them biennially. The OIG’s audit of MassHealth’s MMIS included MassHealth’s websites, databases, and other supporting information systems. The review was limited to security control areas and controls in place at the time of the visit. Specifically, the OIG looked at MassHealth’s implementation of federal requirements and National Institute of Standards and Technology guidelines regarding: system security plan, risk assessment, data encryption, web applications, vulnerability management, and database applications. Preliminary findings were communicated directly to MassHealth prior to the report’s issuance.

OIG’s findings

The OIG found MassHealth did not safeguard MMIS data and supporting systems as required by federal requirements. Vulnerabilities were discovered related to security management, configuration management, system software controls, and website and database vulnerability scans. Should exploitation of the vulnerabilities have occurred (and there was no evidence that it had), sensitive information could have been accessed and disclosed and operations of MassHealth could have been disrupted. Sufficient controls must be implemented over MassHealth Medicaid data and information systems.

Specific vulnerabilities uncovered were not detailed in the report because of the sensitive nature of the information. However, specific details were provided to MassHealth so it may address the issues. In response to the report, MassHealth described corrective actions it had taken or planned to take in response to the vulnerabilities.

Idea of proactive compliance plagues 60-day report and refund rule

The final rule implementing the 60-day report and refund statute was a “mixed bag” for providers because it provided guidance to mitigate risk but perpetuated uncertainty by relying on vague terms, said Robert L. Roth, managing partner at Hooper Lundy & Bookman, PC, and James S. Hinkle, vice-president and chief compliance officer at Ardent Health Services, at the American Health Lawyers Association’s Institute on Medicare and Medicaid Payment Issues. Roth and Hinkle emphasized that the buck stops with providers, even if they did not cause the overpayment.

Overpayments

Section 6402(a) of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) added Soc. Sec. Act Sec. 1128J(d) to provide that a person that receives an overpayment must report and return the overpayment within 60 days of when the overpayment was identified or when the corresponding cost report was due. CMS issued a final rule (81 FR 7564) February 12, 2016, effective March 4, 2016, implementing section 6402(a). Examples of overpayments include: (1) Medicare payments for noncovered services; (2) Medicare payments in excess of the allowable amount for an identified covered service; (3) errors and nonreimbursable expenditures in cost reports; (4) duplicate payments; (5) lack of medical necessity; and (6) insufficient documentation.

Proactive compliance

The final rule provides that an overpayment is “identified” if the person fails to act with reasonable diligence and the person in fact received an overpayment. CMS stated that “reasonable diligence” includes both proactive and reactive compliance. Roth and Hinkle concluded that the proactive compliance standard “raises the stakes”–the preamble does not explain the legal basis for proactive compliance, and the standard is “unreasonably vague” in light of possible civil money penalties, exclusion, and False Claims Act liability. They asked if a provider did not but arguably could have identified an overpayment by being proactive, has the provider identified an overpayment and, if so, when does the 60-day deadline start?

Quantification

An overpayment has not been “identified” until it is quantified or should have been quantified with reasonable diligence. However, CMS declined to adopt a minimum materiality threshold.