In the face of growing scrutiny and now judicial pressure, the Centers for Medicare & Medicaid Services (CMS) published a final rule on January 17, 2017 implementing certain administrative and procedural actions in an effort to reduce the significant Medicare appeals backlog. The final rule comes on the heels of intense criticism from various branches of the federal government – including most recently a December 5, 2016 judicial order from the D.C. district court for the Department of Health and Human Services to achieve certain yearly reduction thresholds from the current backlog of cases pending at the ALJ level and file status reports to the district court every 90 days. While not specifically referencing the court order in the final rule, according to CMS, the Office of Medicare Hearings and Appeals (OMHA) had more than 650,000 pending appeals as of September 30, 2016, while it has only a maximum adjudication capacity of 92,000 appeals per year.
In the final rule, CMS finalized a majority of the administrative and procedural modifications it outlined in its July 5, 2016 proposed rule. Specifically, the final rule:
- Permits designation of certain Medicare Appeals Council Decisions as “precedential.”
- Expands OMHA’s available adjudicator pool by allowing “attorney adjudicators.”
- Simplifies proceedings when CMS or CMS contractors are involved by limiting hearing participants.
- Clarifies areas of regulation, including when new evidence may be submitted and rules for filing appeals related to challenging statistical sampling and extrapolation.