Long-Awaited Settlement Conference Facilitation Expansion Released by OMHA

OMHA also announced that the SCF expansion will include a “fast track” process, or “SCF Express.”

The Office of Medicare Hearings and Appeals (OMHA) hosted a Medicare Learning Network (MLN) conference call to release details regarding the long-awaited expansion to the Settlement Conference Facilitation (SCF) program on May 22, 2018.

OMHA indicated that appellants should expect the program to be implemented and released in early June 2018. OMHA first announced its plans to expand the SCF program in the fall of 2017. Since that time, appellants have been anxiously awaiting details of the expanded program. OMHA cautioned, however, that its website does not yet contain current information regarding the SCF program, and that its website will be updated in the coming days and weeks.

SCF is an alternative dispute resolution process which provides appellants and the Center for Medicare and Medicaid Services (CMS) an opportunity to discuss a mutually agreeable resolution for claims appealed to the Administrative Law Judge (ALJ) or Medicare Appeals Council (Council) levels of appeal. SCF is a one-day mediation, in which an OMHA senior attorney or program analyst acts a neutral facilitator to assist the appellant and CMS in negotiating a lump-sum settlement on eligible claims. During the call, OMHA cautioned listeners that the facilitator is not a claim adjudicator. In other words, the facilitator will not make official determinations of fact or law on the merits of the appeals. Rather, the facilitator’s role is to help the appellant and CMS see the relative strengths and weaknesses of their positions, and assist the parties in reaching a mutually agreeable resolution on the pending appeals. If a resolution is reached, a settlement agreement will be signed by the parties and the appeals covered by the settlement will be withdrawn and dismissed from the administrative appeals process.

OMHA has made a number of significant modifications to the program’s eligibility criteria under the expanded program. First, any Medicare Part A or Part B provider or supplier (with an assigned National Provider Identifier number) is eligible for participation, so long as that provider or supplier has not filed for bankruptcy and does not expect to file for bankruptcy in the future; does not have past or current Fast Claims Act litigation or investigations against them or other program integrity concerns such as civil, criminal, or administrative investigations; and has the requisite number of appeals to be eligible for participation.

More specifically, to be eligible an appellant must have either: (1) 25 or more eligible appeals pending at OMHA and the Council levels of appeal combined, or (2) less than 25 eligible appeals pending at OMHA or the Council levels of appeal combined and at least one appeal has more than $9,000 in billed charges. It is expected that many more appellants are eligible to participate in the expanded SCF program than what was originally anticipated. Under the initial, anticipated appellant eligibility criteria, OMHA indicated that eligible appellants were those that had 500 or more eligible appeals pending at OMHA and the Council levels of appeal combined, or with any number of appeals pending at OMHA and the Council levels of appeal combined so long as each appeal had more than $9,000 in billed charges.

Under the finalized appellant eligibility criteria, more appellants may be eligible to participate, as an appellant need only have 25, rather than 500, eligible appeals. If an appellant has fewer than 25 eligible appeals, an appellant can still participate in the expanded SCF so long as at least one appeal has billed charges in excess of $9,000.

During the conference call OMHA also provided details regarding claim eligibility criteria. To be eligible, appeals must meet the following criteria:

• Appeals must involve requests for ALJ hearing or Council review filed on or before November 3, 2017;
• The requests for ALJ hearing or Council review must arise from a Medicare Part A or Part B Qualified Independent Contractor (QIC) decision (i.e. dismissals are not eligible);
• All jurisdictional requirements for OMHA or Council review must be met for the eligible appeals (i.e. the appeal must have been timely filed and satisfy the amount in controversy requirement);
• Appeals must not be scheduled for an ALJ hearing and an ALJ hearing cannot have been conducted;
• The amount of each individual claim must be $100,000 or less;
• Appeals cannot be involved in OMHA’s statistical sampling initiative nor actively engaged in a CMS Medicare appeals initiative made available on or after November 3, 2017 (i.e. the Low Volume Appeals Settlement, the QIC Demonstration Project for Durable Medical Equipment claims);
• The beneficiary cannot have been found liable at the redetermination or reconsideration levels of appeal;
• Appeals cannot involve items, services, drugs, or biologicals billed under unlisted, unspecified, unclassified, or miscellaneous healthcare codes;
• Appeals must not involve payment disputes; and
• Appeals cannot be beneficiary-initiated or arise from Medicare Part C or D or appeals of Social Security Administration decisions regarding benefit
  entitlement, Part B late enrollment penalties and Part B or Part D income-related monthly adjustment amounts (IRMAA).

Unexpectedly, OMHA announced that the SCF expansion will include a “fast track” process, or “SCF Express,” through which CMS will provide an initial settlement offer to the appellant based on preliminary data available to CMS, not including a medical review of claims.

Under SCF Express, the appellant can either accept or reject the initial settlement offer, but there is no opportunity to negotiate with CMS. If the appellant rejects the initial settlement offer, the appellant can proceed to the settlement conference process.

Although OMHA emphasized that there is no guarantee an appellant would achieve a more favorable settlement at the facilitation compared to SCF Express, if an appellant has strong claims on the merits, it would be reasonable to anticipate an appellant may fare more favorably at the SCF conference. OMHA indicated that it anticipates the SCF Express track to achieve a faster resolution of the appeals by approximately four weeks, compared with the normal SCF process.

To initiate SCF under the expanded program, an appellant will need to submit an SCF Expression of Interest form to OMHA. CMS will then have 15 calendar days to accept or reject participation in the process. If CMS agrees to participate, OMHA will generate an initial spreadsheet identifying the eligible appeals and send the spreadsheet to the appellant for verification. An appellant will then have 20 calendar days to verify the spreadsheet and complete the SCF Agreement of Participation and return these items to OMHA, at which point OMHA will issue an SCF Confirmation Notice.

Within 30 calendar days of the SCF Confirmation Notice, an appellant will receive CMS’ SCF Express Settlement Offer. It is important to note that an Appellant will only have seven calendar days from the date of the SCF Express settlement offer to either accept or reject the offer. If an appellant fails to respond within seven calendar days, OMHA indicated that it will deem the appellant as having abandoned the program. If an appellant rejects the SCF Express Settlement Offer, OMHA will then coordinate a pre-settlement conference call between the appellant and CMS. At the pre-settlement conference, the OMHA facilitator will discuss the SCF process and set the date for the facilitation and schedule deadlines for the submission and exchange of any facilitation documents. Prior to the facilitation and likely after the pre-facilitation conference CMS will select a sample of claims. CMS will then review these claims and form an opinion on the strength of these claims prior to the facilitation.

Appellants should prepare a thorough evaluation of the sample claims through a comprehensive position paper with supporting documentary evidence and testimonial support. Appellants should also consider showcasing their major strengths, accolades, and any unique considerations for CMS’ review. Prior to the facilitation appellants should then submit their position paper and comprehensive work-ups to CMS for its consideration. A thorough and strong posturing of the case prior to the facilitation can have a substantial impact on the success of the facilitation.

Although at the facilitation there are no findings of fact or rulings of law, participants should be prepared to make an opening statement that highlights major issues and concepts for CMS’ consideration. Following opening statements, the facilitation then proceeds through private sessions with the OMHA facilitator, who acts as a neutral intermediary in facilitating a resolution between the appellant and CMS.

The voluntary and expedited nature of the SCF process should be attractive to Medicare appellants seeking a cost-effective and efficient resolution of their pending appeals. Further, there is no perceivable risk in participating in the process. If settlement is not reached, an appellant’s claims return to the ALJ appeals process in the order in which they were originally received. By participating in SCF, an appellant forfeits neither their place in line for hearing nor the time already invested in waiting for an ALJ hearing if SCF is unsuccessful. Appellants with eligible appeals pending in Medicare’s administrative appeals process should pay close attention to OMHA’s website in the coming days and weeks for additional details regarding this program.

Although the program will not be implemented until early June, it is not too early for providers and suppliers to begin reviewing their potentially eligible claims and consider participating in this initiative.

Program Note

Listen to Andrew Wachler report this developing story on Monitor Monday, June 4, 10-10:30 a.m. ET.

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