On December 17, 2019, Senate Finance Committee Chairman Chuck Grassley (R-Iowa) and Ranking Member Ron Wyden (D-Ore.) reintroduced legislation to address the backlog of Medicare appeals cases awaiting review before an Administrative Law Judge (ALJ) in the Office of Medicare Hearings and Appeals (OMHA) at HHS.
As previously reported, OMHA has struggled to keep up with sustained, significant growth in requests for an ALJ hearing. Although 42 U.S.C. § 1395ff requires ALJs to adjudicate appeals within a 90-day timeframe, HHS reports that the average processing time in FY 2019 was 1,372 days. As a result, providers often wait over three years for their appeals to be adjudicated.
The Audit & Appeals Fairness, Integrity, and Reforms in Medicare Act of 2019 (AFIRM Act), S. 3078, would grant HHS the power to create a new Medicare magistrate program within OMHA to handle less complex, lower-dollar appeals. ALJs would handle cases in which the amount in controversy is equal to or greater than $1,630, while magistrates would handle cases in which the amount in controversy is at least $160 but less than $1,630. Notably, the AFIRM Act would allow ALJs to issue expedited decisions on the record when there are no material issues of fact in dispute, and binding authority controls the decision in the matter under review.
The AFIRM Act also includes communication and transparency components. The Act would require HHS to create a Medicare Provider & Supplier Ombudsman, who would investigate and respond to complaints and questions. The Ombudsman would also evaluate trends that affect the audit and appeals process. Furthermore, HHS would be required to publish on its website key information regarding OMHA appeals, such as the percentage of appeals that received fully favorable, partially favorable, and unfavorable decisions. To make the audit practices and review methodologies of Medicare contractors more transparent, the AFIRM Act would require the Secretary’s approval of contractor audit review guidelines before their use by Medicare contractors. Additionally, the AFIRM Act would direct the Secretary of HHS, within six months of enactment, to report to Congress on recommendations to change the payment structure for Recovery Audit Contractors (RACs) from incentive-based to non-incentive based without additional financial burdens to providers.
A 2015 version of the Act, previously described here, was approved by the Senate Finance Committee by unanimous consent but failed to pass the Senate.
The new legislative text of the AFIRM Act is available here.
