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Jessica C. Forster, Esq.

Kevin R. Miserez, Esq.

The Office of Medicare Hearings and Appeals (OMHA) held an open door teleconference yesterday to announce the expansion of the Settlement Conference Facilitation (SCF) Pilot. 

SCF was initially launched in June 2014 to provide an alternative dispute resolution process for eligible Medicare providers and claims. SCF provides an opportunity for the Centers for Medicare & Medicaid Services (CMS) and the provider to reach a mutually agreeable resolution.

Under the initial phase, participation in the SCF pilot was limited to claims that met narrow eligibility requirements (e.g. Part B claims in which the ALJ hearing request was submitted in 2013 and the claim was not assigned to an ALJ for a hearing). 

During yesterday’s conference, OMHA announced that Phase I of the pilot successfully resolved over 2,400 unassigned Administrative Law Judge (ALJ) appeals.  OMHA explained that this is the equivalent of two ALJ teams working for one full year. 

Due to the success of Phase I, OMHA expanded the SCF Pilot to Phase II beginning on Oct. 1, 2015.  Under Phase II, there is an extensive list of eligibility requirements.  Some of these eligibility requirements include ALJ hearing requests that were filed by Sept. 30, 2015, the amount of each individual claim must be $100,000.00 or less and if the appeals are subject to a statistical extrapolation, the extrapolated amount must be $100,000.00 or less. Only Part B claims, however, are eligible for Phase II.

Along with revisions to the eligibility requirements, Phase II also revised the process for requesting SCF.  Effective Oct. 1, 2015, an appellant must submit an SCF Expression of Interest form which will prompt OMHA to run a preliminary report of its pending appeals and initiate the SCF process.  OMHA will send the preliminary report to CMS for CMS’ review and opportunity to respond whether it will participate in SCF.  OMHA did not provide a timeframe in which CMS is required to respond.  After CMS’s response, OMHA will complete an SCF spreadsheet for the appellant.  The SCF spreadsheet will contain all OMHA appeals that OMHA believes are eligible for SCF.  OMHA will then send an SCF Preliminary Notification and the SCF spreadsheet to the appellant and the appellant will have 15 calendar days from receipt to submit a Request for SCF Package.  The package must include, on a flash drive or compact disc, a request for SCF form, an SCF Agreement of Participation form, and a complete SCF Request Spreadsheet.  OMHA emphasized that the appellant has the responsibility to ensure all claims meet SCF eligibility requirements. If the appellant objects to any of the claims on the SCF Spreadsheet, OMHA will work with the appellant to address any issues.  If the appellant fails to respond within 15 calendar days, the appeals will return to their place in the queue for ALJ hearing. 

If during the SCF an agreement is reached, OMHA facilitators will draft a settlement agreement and CMS and the appellant will sign the settlement agreement.  The appellant must sign the agreement on the date of the settlement conference.  The claims subject to the agreement will still be considered “denied” and the appellant will receive a notice of dismissal from OMHA regarding the claims.  CMS confirmed that new remittance advices would not be issued.  This may have implications for supplemental insurance. If an agreement is not reached during the SCF, then the appeals will return to their prior place in OMHA’s docket.  If the appeal was assigned to a judge it will return to the same judge and if it was not yet assigned to the judge, it will return to its original place in the queue.

Also during yesterday’s conference, OMHA announced that next year it would provide more information regarding Phase III.  OMHA said Phase III expansion will include some Part A appeals, but declined to elaborate any further.

The success of the first phase of the SCF process and OMHA’s decision to expand the SCF Pilot offers providers an alternative option to resolve claims through a process that is likely more efficient than waiting for an ALJ hearing. 

While the eligibility requirements remain restricted to Part B claims, the expansion may help alleviate the amount of claims in queue for ALJ hearing and therefore allow other claims pending for ALJ hearing to be heard more expeditiously. 

Furthermore, OMHA’s announcement that Phase III will include Part A claims is promising and will hopefully allow more providers access to the opportunity to engage in the alternative dispute process.

About the Authors

Jessica Forster is an associate at Wachler & Associates, P.C.  Ms. Forster dedicates a considerable portion of her practice to defending healthcare providers and suppliers in the defense of RAC, Medicare, Medicaid and third party payer audits.  Her practice also includes the representation of clients in Stark, anti-kickback, and fraud and abuse matters.

Kevin Miserez is an associate at Wachler & Associates, P.C.  Mr. Miserez dedicates a substantial portion of his practice to representing healthcare providers and suppliers in the defense of RAC, Medicare, Medicaid and third party payer audits.

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