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Recent OMHA statistics show that beneficiaries[1] currently wait an average of 60 days[2] to obtain an Administrative Law Judge (ALJ) hearing and receive a decision. In contrast, non-beneficiaries (providers, suppliers, state Medicaid agencies, and others) wait an average of 1,303 days (over 3.5 years) to obtain an ALJ decision.[3]

The much shorter average wait time for beneficiary ALJ decisions can be attributed to an August 2016 nationwide class action settlement in a case brought by the Center for Medicare Advocacy (the Center) to obtain timely ALJ hearings and decisions for beneficiaries. The case, Exley v. Burwell, 3:14-CV-1230, was brought by Medicare beneficiaries who waited longer than the time limit guaranteed by law for ALJ decisions. Each beneficiary had appealed a denial of coverage for items and/or services, such as medically necessary ambulance transport or care in a skilled nursing facility. They incurred financial liability for those services and were supposed to receive decisions within 90 days of requesting a hearing. However, when the Exley case was filed, beneficiaries were waiting much longer.

ALJ hearings are particularly important for beneficiaries because they represent the only opportunity in Medicare’s appeals system for a live hearing, with presentation of testimony and an exchange with an adjudicator. The other levels of appeal happen only “on the record,” without a hearing.

The Exley settlement called for placing beneficiaries at the front of the line to receive ALJ hearings and decisions. The settlement includes beneficiaries who represent themselves and those who are represented for their own appeal (not a provider appeal). Beneficiaries comprise only 1 to 2% of those requesting Medicare hearings; the vast majority of those who appeal are medical providers and suppliers. The Exley settlement ensured that a beneficiary priority policy would continue for at least three years – through August 2019. Although currently less than 6 months remain in this component of the Exley settlement, the Center believes OMHA will continue to support the agreement.

To effectuate the settlement, OMHA implemented measures to make the appeals system easier for beneficiaries to use, including revising forms and instructions. On the form requesting an appeal, the beneficiary can now check a box that pertains to beneficiaries.  See: https://www.hhs.gov/sites/default/files/OMHA-100.pdf. To help ensure the appeal request is processed as quickly as possible, the request should be sent directly to the following address:

OMHA Central Operations
Attn: Beneficiary Mail-Stop
200 Public Square, Suite 1260
Cleveland, OH 44114-2316

Note: Medicare Advantage Plan enrollees should send their appeals to the address specified in the instructions that came with their reconsideration decision.

To help ensure ALJ appeals for traditional Medicare beneficiaries, Medicare Advantage enrollees, and Part D Plan enrollees are adjudicated as quickly as possible, OMHA developed a Beneficiary and enrollee prioritization policy. See https://www.hhs.gov/about/agencies/omha/filing-an-appeal/coverage-and-claims-appeals/medicare-beneficiary-and-medicare-advantage-part-c-plan-enrollee-part-d-plan-enrollee-appeals-assistance/index.html.

A goal of the policy is to adjudicate beneficiary ALJ appeals within 90 days, unless another time frame applies.[4] However, not all appeals can be resolved in that time frame. OMHA provided some examples where delays may occur, including:

  • A beneficiary or representative may request additional time to gather documentation;
  • A beneficiary or representative may be unable to commit to a hearing day for an extended period of time; or
  • The complexity of the issue involved may require additional time for the OMHA adjudicator to prepare for the hearing or issue a decision.

There is a dedicated OMHA Beneficiary Help Line, (844) 419-3358, staffed for beneficiary inquiries from 8:00 AM to 4:30 PM Eastern Time. During other hours, or if the OMHA Beneficiary Help Line representatives are assisting other callers, the beneficiary should leave a voice mail, to be returned as soon as possible.

Certain ALJ appeals can be escalated to the Medicare Appeals Council for review when the 90 day time frame is not met. More information on the escalation process can be obtained at https://www.hhs.gov/about/agencies/omha/filing-an-appeal/coverage-and-claims-appeals/escalation-rights/index.html.

While the Exley case addressed beneficiary interests, there is an unrelated case about the Medicare appeal backlog and its impact on hospitals, which involve the majority of appeals. In November 2018, in the case of American Hospital Association v. Azar, 1:14-cv-00851, D.D.C., the U.S. District Court in D.C. ordered: “Defendant (Azar) must achieve the following reductions from the currently projected FY 2018 backlog of 426,594 appeals: a 19% reduction by the end of FY 2019; a 49% reduction by the end of FY 2020; a 75% reduction by the end of FY 2021; and elimination of the backlog by the end of FY 2022.” Defendant Azar was also ordered to provide quarterly status reports. As of the end of FY 2018, the actual backlog of pending appeals at OMHA was 417,198 (reduced from a high of 886,418 claims at the end of FY 2015). However, while the average processing time in FY 2015 was 22 months, by the end of the most recent quarter, the average processing time is 43 months. https://www.hhs.gov/about/agencies/omha/about/current-workload/average-processing-time-by-fiscal-year/index.html

Conclusion

The Center will continue to monitor the processing times as they apply to beneficiary claims, to ensure the spirit and reality of the Exley settlement continues into the future. For various reasons – most due to the fact that beneficiaries often must pay out-of-pocket to receive denied services and then appeal to be reimbursed by Medicare – far too few coverage denials are appealed by beneficiaries. It is critical that beneficiary appeals are attended to in a timely manner.

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[1] The term “beneficiary” includes all Medicare beneficiaries, Part C Medicare Advantage Plan Enrollees, and Part D Plan Enrollees.
[2] Part D appeals that qualify for an expedited hearing are adjudicated within 10 days.
[3] https://www.hhs.gov/about/agencies/omha/about/current-workload/beneficiary-appeals-data/index.html.
[4] See Endnote 1.

March 7, 2019 – K. Holt

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