Preparing for an ALJ Hearing Process

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Erin McDaniel

By Erin McDaniel

It’s November in Pennsylvania.   Most people are looking forward to football, Thanksgiving turkeys, and the upcoming holiday season.  For those who work in Pennsylvania’s healthcare field, something decidedly less cheery lurks on the horizon:   the CMS Recovery Audit Contractor (“RAC”) process swinging into full gear.

By now, Pennsylvania’s hospital administrators are acquainted with the RAC process.  DCS Healthcare is the RAC with jurisdiction over Pennsylvania providers.  Since late 2009, DCS has posted numerous medical necessity and DRG validation issues it intends to review.  Your facility may already be in the midst of the administrative appeal process with DCS.  The opening stages of the appeal process are based largely on the facility’s appeal letters, and frequently, the CMS intermediaries’ denial letters.   The process culminates in a hearing before an administrative law judge (“ALJ”).   The ALJ hearing process, while burdensome, gives your facility the opportunity to challenge and hopefully overturn the RAC’s determinations.  Here are some helpful tips for the ALJ hearing process, based on my experience:

Participate in the ALJ hearing process

The ALJ hearing stage requires the most legwork, but also presents the best opportunity for your facility to present its case.  If you are new to the RAC appeal process, you may be worried that the ALJs will rubber-stamp the RAC’s determinations.  On the contrary, I have found the ALJs to be impartial and fair.  Even on the occasions when I disagree with their decisions, the ALJs have always given me and the hospitals I represent a fair hearing.  But don’t forget:  you can’t get to the ALJ hearing stage if you don’t first go through the earlier stages of the appeal process.

Clear your calls

The ALJs who decide appeals by Pennsylvania facilities will generally operate out of the Office of Medicare Hearings and Appeals in Cleveland, Ohio.  This does not mean you should start planning a road trip to Cleveland.  Instead, your ALJ hearings will be conducted by telephone.  Telephone hearings will certainly save plenty of miles on your car, but they also require organization.  The facility’s representative and witnesses will all need to be accessible by phone, and ready at the scheduled hearing time.  If a witness is unavailable at the appointed time, don’t expect much sympathy from the ALJ.

R-E-S-P-E-C-T

As you move into the hearing process, you will interact with both the ALJs and their court staff.  Treat both groups with the utmost respect.  The ALJs are not traditional federal or state court judges, but they are still judges with heavy caseloads and busy schedules.  If you participate competently in the process and don’t waste their time, it will make everyone’s life easier (including your own).  Be sure to refer to the ALJ as “your honor” or “judge.”  Further, grant the same degree of respect to the ALJ’s support staff, including their scheduling clerks and research attorneys.  These individuals keep the hearings running smoothly, and play an integral role in the appeal process.

Prepare your papers

One way to help minimize your headaches during the appeal process is to have template appeal documents ready.  Your lower-level appeal letters, your letters requesting ALJ hearings, and the briefs you submit to the ALJs will include much of the same language.  This is true even when you are addressing different issues and different patients.  Consider investing resources on the front end to develop good template documents that you can fine-tune to address specific situations.  There is no need to reinvent the wheel with each new appeal.  Also, make your documents clear and easy to follow for the ALJ.

Find a good representative

One of the main challenges of the hearing process is how to staff it cost-effectively.  The success of your hearing will depend heavily on the quality of your representative – the person who serves as your advocate at the hearing.  Notably, a person need not actually be an attorney to serve as a representative at a RAC hearing.  Law firms and consultants offer expertise, but at high hourly prices.  In-house staff offer institutional knowledge, but they may be overworked already.  Contract attorneys may be your best option, as they offer legal expertise at significantly lower rates than traditional law firms.

Good luck!

Erin McDaniel is an attorney with Counsel On Call in Nashville, Tennessee.  Ms. McDaniel has represented hospitals in dozens of RAC and inpatient rehabilitation appeals before ALJs in all four field offices of the Office of Medicare Hearings and Appeals.  You can contact Counsel On Call at (615) 467-2388 or online at www.CounselOnCall.com. .