Senate Committee Assesses the RACs; New Appeals Pilot Bypasses ALJ

RAC Monitor Monday

July 14, 2014

I have a take (on the settlement conference facilitation project) from a perspective of defending Medicare appeals since 1980 and not settling a single case. That was fine when we got to hearings within a year because providers had a high success rate, but let's look at what we face now. We face delays of 3 to 5 years. We know our ALJ's. Our degree of success can, to some extent, be dependent upon what ALJ we draw. So providers have a need to expedite the process. It's a shame those are the factors that work against them, but to me the use of the mediation process is something I strongly, strongly encourage. We have great success in settlement of our commercial claims and our Medicaid claims. There are methodologies that can be used to advance the provider's position to put them in a strong position and help effectuate settlement. CMS is going to be incentivized to try to clear their docket, so they're going to have the incentive. I don't know what role the contractors really play in this or if they have a say. That will be interesting, but I really think this is limited in scope to Part B providers and certain claims, individual claims under $100,000 extrapolated. Under $100,000, but individual claims can accumulate more than $100,000. You have to request all eligible claims. When you look at this, to me it's like looking at the initial RAC pilot program. This is going to expand to Part A providers. If successful, it will expand to Part C. It is one of the meaningful solutions to the ALJ backup. If it did apply to Part A, then, I mean, look, folks have millions and millions of dollars sitting out there. There is a time value to that money they may not see for three to four years. If you can mediate it now and get a chunk of it, I would strongly, strongly recommend it. We can't do it in Part A, but we should use the Part B to test and input and participate and perfect the system and I think this is a system that should become a permanent component. I've advocated for it.

I want you to look at this also in conjunction with the statistical sampling pilot that is available to Part A providers. It's very limited. It's a window if you filed between April 1st and June 30th, 2013. When we look at this, there are a couple of challenges that I have with the statistical sampling project. I agree with it in concept, the problem is, you are going to get one judge, and you won't know which judge really. If all of your claims are before one judge, then you'll get that judge. But, if you have multiple eligible claims in statistical sampling, you'll get the next available judge. And we know, for those of us that have participated in numerous hearings, that who you draw is as likely to determine the likelihood of your success than some of the merits of your case. You will get judges that will just rule against you almost no matter what. And some who will rule quite favorably. So that's a big risk to put all your eggs in one basket.

There's one other major defect in statistical sampling as I see it. My view of the program is that if you statistical sample, you count your value of the Part B and you use that for your projection as to what you'd be entitled to Part B, but they came out in the program and said that you cannot consider it. And, therefore, you're in a situation where you're going to get a projection of what you win and what you lose. It comes out in a dollar value and it says to bill Part B at Call-CMS. That's what it says. Well, how to do you bill Part B in a claim that isn't identified as a Part A or Part D because it’s in the statistical sampling? That's kind of an important element. You could lose your ability to bill Part B. I don't know how that will be resolved and that would be an important component before I would recommend the statistical sampling piece, if you get clarification on that. With that, I’ll turn it back to you.