Chief Administrative Law Judge on Monitor Monday

Monday Monitor

July 21, 2014

I want to address the settlement conference facilitation pilot and, briefly, the statistical sampling pilot. I’m not going to go into the details, but give you some impressions from the healthcare legal perspective working with appeals for a number of years. I think this is a very, very important pilot program. I urge all parties with eligible claims to consider participating. We are certainly encouraging all of our clients with eligible claims to participate. There is a relatively narrow eligibility requirement, but I think if this is a successful pilot, the opportunity to expand is significant.

The reason I think it is so important is, at least from my experience in the last 35 years, there has been no opportunity to settle any Medicare appeals, yet it is an absolutely integral and kind of standard of practice in all other healthcare disputes to include mediation and settlement and, particularly even in the audit world, it has become the standard of practice. We have it for Medicaid, we have it for commercials, the American Health Lawyers Association and the ABA Health Law Section has adopted alternative dispute resolution models that have been successful. Here, we have the opportunity either to appear in person or video teleconference or telephone in the facilitation. Even there are parts of it that we may think that are imperfect, we encourage people to participate and engage in the process and input the process because it is very effective and it is actually, in my opinion, something that is going to be necessary to deal with the volume of audits and appeals we have today. I will say in the past three months, if I’m looking in areas outside of Medicare where we have settled claims, we’ve probably had over $2.5 million dollars being returned to providers through similar processes for Medicaid and the commercials. So, again I would encourage everyone to participate.

The statistical sampling initiative is a little bit more challenging, specifically as it relates to Part A claims. We have again a very narrow window so it may be worth testing and it is for appeals from April to June, 2013, but I think these are the two risks that one has to consider. One is in order to avoid judge shopping, which I think is appropriate. If you have multiple judges, you’re going to get the next judge in line and we know that the likelihood of success can depend upon what judge you draw and I get concerned about putting all of our eggs in one basket. I’m less concerned with the time frame involved here. My biggest concern, and then I’ll turn it back to you, is that in the Part A world where you can still bill for Part B for all the pending appeals, unless that Part B payment is filtered into the statistical projection and you don’t identify which claims are paid or denied, unless we know how we can get that Part B payment, the provider may be giving that up to participate in this process. So that is my concern on statistical sampling.