CMS issues proposed rule in attempt to reduce Medicare appeals backlog
CMS has proposed changes to reduce its massive Medicare appeals backlog, which has been the subject of lawsuits and a recent Government Accountability Office report, with the goal of clearing outstanding appeals by 2021.
The proposed rule notes that as of April 30, the Office of Medicare Hearings and Appeals (OMHA) had more than 750,000 pending appeals, with an adjudication capacity of approximately 77,000 appeals per year. While OMHA expects to increase its capacity by 15,000 appeals per year, the proposed rule introduced further changes to reduce the backlog.
One major proposal would give the Departmental Appeals Board (DAB) the ability to designate certain decisions as precedential, giving potential appellants a body of final decisions to review to decide whether to pursue an appeal. All decisions would be published in the Federal Register and accessible online, with decisions binding all lower-level decision-makers from the date the decisions are posted.
The decisions would be binding for CMS and associated contractors for initial determinations, redeterminations, and reconsiderations, but the rule makes it clear the precedent would not apply to all decisions, only those specifically designated by the DAB.
CMS also proposes to allow attorney adjudicators to issue:
- Decisions when an Administrative Law Judge (ALJ) is not required to conduct a hearing under the regulations
- Dismissals when an appellant withdraws a request for an ALJ hearing
- Remands for information that can only be provided by CMS or its contractors
CMS is also proposing that decisions and dismissals issued by attorney adjudicators could be reopened and appealed in the same manner they currently are with ALJs. If an attorney adjudicator determines a hearing before an ALJ is necessary to render a decision, he or she can still reassign the appeal.
The agency is proposing increased funding at all appeal levels and legislative reforms that would provide additional funding and authority. If all proposals are finalized, the government estimates it would eliminate the appeals backlog by 2021.