HHS today unveiled a final version of a rule proposed in July that will, the agency hopes, alleviate some of the huge backlog of Medicare appeals cases from which it presently suffers.
First, the rule authorized the chair of the HHS Departmental Appeals Board (DAB) to “designate a final decision of the Secretary issued by the Council as precedential.” That is, the chair would choose some decisions at the Medicare Appeals Council level -- the fourth level of appeal after redetermination, reconsideration and administrative law judge (ALJ), and before appeals may be allowed to go to judicial review – to be used as guidance for future, similar cases.
By “providing clear direction on repetitive legal and policy questions, and in limited circumstances, factual questions,” HHS hopes to provide future appellants “with a consistent body of final decisions of the Secretary upon which they could determine whether to seek appeals.”
The clear implication is that if a precedential decision suggests a case won’t win, appellants might decide to withdraw. (HHS would publish such cases in the Federal Register and otherwise see them “made available to the public.”) Among the types of case the chair will consider for precedential status:
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A decision that addresses “recurring legal issues" or "interpret[s] or clarif[ies] an existing law, CMS rule or policy.”
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A decision that “has general application to a broad number of cases.”
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A decision that “analyzes or interprets a legal issue of general public interest.”
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A decision reflecting “the state of the record developed at the lower levels of review.”
CMS also authorized “attorney adjudicators” who will step in for ALJs, who are currently swamped, in cases not requiring those judges’ special expertise.
They will be “well-trained attorneys [who] can perform a review of the administrative record and more efficiently draft the appropriate order for certain actions, such as issuing dismissals based on an appellant’s withdrawal of a request for an ALJ hearing, remanding appeals for information or at the direction of the Council, and conducting reviews of QIC (Qualified Independent Contractor) and IRE (Independent Review Entity) dismissals.”
More details on the 639-page rule to come in Part B News.