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fee for service ffs final rule-changes to appeals policy

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fee for service ffs final rule-changes to appeals policy

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    1. Presenters: Liz Hosna David Danek Analysts, Division of Appeals Policy

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    3. Overview Published on December 9, 2009 Effective January 8, 2010 Responds to public comments on the March 8, 2005 interim final rule Changes are minor and predominantly technical in nature 3

    4. Timeframes for Filing and Issuing Decisions

    5. Technical Changes & Clarifications

    6. Definition of “Contractor” Added definition of Contractor: an entity that contracts with the federal government to review and/or adjudicate claims, determinations and/or decisions.  Encompasses existing contractors, including: Carriers and Intermediaries Medicare Administrative Contractors (MAC) Qualified Independent Contractors (QIC) Recovery Audit Contractors (RAC) Zone Program Integrity Contractors (ZPIC) Can cover other entities 6

    7. Filing Timeframes Added the word “calendar” in front of the word day or days Clarified calculation of filing timeframes when the deadlines close on weekends or holidays 7

    8. Polling Question- Filing Timeframe If the filing deadline for a redetermination falls on a Sunday, the contractor must receive the party’s request no later than ________ for the appeal to be considered timely. The Friday before the filing deadline The Saturday before the filing deadline The Monday after the filing deadline (provided it is not a federal holiday or non-work day) 8

    9. Polling Question- Filing TimeframeAnswer The Monday after the filing deadline (provided it is not a federal holiday or non-work day) Timeframes that end on a Saturday, Sunday, legal holiday, or any other federal non-work day rollover to the first working day after the Saturday, Sunday, legal holiday, or other federal non-work day. 9

    10. “Final” and “Binding” Clarified the meaning of the terms “final” and “binding” Final -- a decision where a party has exhausted administrative remedies and may seek judicial review as the next step in the appeals process Binding -- a decision where: A party chooses not to exercise further administrative appeal rights that are available, or There is no further recourse available to a party. Binding decisions are effectuated, when appropriate, by the Medicare Administrative Contractor (MAC) 10

    11. Dismissal Actions A qualified independent contractor’s (QIC’s) dismissal of a party’s request to review a redetermination dismissal action is binding and not subject to further appeal (§405.972(e)) An administrative law judge’s (ALJ’s) dismissal of a party’s request to review a reconsideration dismissal action is binding and not subject to further appeal (§405.1004(c)) 11

    12. Polling Question-Reopenings Is a RAC authorized to reopen an initial determination? Yes No What’s a reopening? What’s a RAC? 12

    13. Polling Question-Reopenings Yes – Recovery Audit Contractors (RACs) are considered contractors and thus are authorized to reopen initial determinations. 13

    14. Reopenings Two technical corrections to reopening process (§405.980(b)): Originally read: “A contractor may reopen and revise its initial determination or redetermination on its own motion— . . . ” Removed “and revise” from the introductory sentence Replaced “its” with “an” ZPICs and RACs may reopen initial determinations by MACs in order to carry out their post-payment review activities Currently reads: “A contractor may reopen an initial determination or redetermination on its own motion— . . . ” 14

    15. ALJ Procedures Specify that ALJs conduct de novo review at hearings (§405.1000(d)) Clarified that ALJs are responsible for sending the notice of hearing to all parties who have not waived their right to receive the notice of hearing (§405.1022(a) and §405.1020(c)) 15

    16. Medicare Appeals Council Procedures When filing a request for Appeals Council (AC) review the appellant must send notice to the parties that received a copy of the ALJ hearing decision or dismissal order (§ 405.1106(a)) CMS will notify the parties that received a copy of the ALJ hearing decision or dismissal order when referring an ALJ decision to the AC to consider for own motion review § 405.1110(b) 16

    17. Policy Changes & Clarifications

    18. ALJ Notice of Hearing ALJs will send the notice of hearing to the QIC (§405.1020(c)(1)) The QIC will notify the contractor that issued the initial determination of the impending hearing 18

    19. Timeframes for In-Person Hearings Eliminated the mandatory waiver of the ALJ’s 90-day adjudication timeframe when a party requests an in person hearing (§405.1020(i)) 19

    20. ALJ Remands Clarifies the conditions under which an ALJ may remand a case to the QIC for a new decision: An ALJ may remand a case when written record is missing information that is essential to resolving the issues on appeal, and that information can be provided only by CMS or its contractors (§405.1034(a)) 20

    21. Case Study – ALJ Remands A DME supplier files a request for ALJ hearing. In preparing for the hearing, the ALJ determines that the administrative record is missing certain medical records that are essential to the case. In it’s reconsideration notice, the QIC stated that the supplier did not submit medical records to support medical necessity. Is it appropriate for the ALJ to remand the case to the QIC to obtain the missing medical records and issue a new reconsideration? 21

    22. Case Study – ALJ Remands Answer: No, the ALJ should retain jurisdiction of the case and obtain the missing information from the supplier, or render a decision based on the administrative record. §405.1034(a); 74 FR 65325. 22

    23. Case Study – ALJ Remands ALJ remands are appropriate when the missing information can be provided only by CMS or its contractors. A case should not be remanded to the QIC when the missing information is: Publicly available, or Is in the possession of, or can be requested and obtained by, a party (§405.1034) 23

    24. Case Study – ALJ Remands Provider and supplier appellants (and beneficiaries represented by a provider/supplier) are required to submit all evidence prior to the issuance of the reconsideration Any evidence submitted after the reconsideration decision is issued may only be considered at the ALJ hearing if the appellant had good cause for not submitting the evidence earlier (§§405.966, 405.1018 and 405.1028) 24

    25. Subpoenas Neither an ALJ, nor the MAC (at the request of party or on their own initiative) may issue a subpoena to CMS or its contractors to compel an appearance, testimony, or the production of evidence (§§405.1036(f)(1) and 405.1122(d)(1)) 25

    26. Subpoenas Changed timeframe for submission of subpoena requests -- requests must be submitted prior to the end of the discovery period established by the ALJ in accordance with §405.1037 (was within 10 days of receipt of notice of ALJ hearing) 26

    27. Reference Guide FFS Appeals Web page: www.cms.gov/OrgMedFFSAppeals/ Mailbox for questions: FFS_Appeals@cms.hhs.gov Link to video of webinar: www.cms-cpcevents.org 27

    28. Questions 28

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