Office of Medicare Hearings and Appeals To Hold Open Door Call on Upcoming Expansion of Settlement Conference Facilitation Program

In preparation for the upcoming expansion of its Settlement Conference Facilitation (SCF) program, the Office of Medicare Hearings and Appeals (OMHA) has directed interested providers and suppliers to review the SCF Expansion Frequently Asked Questions page on the agency’s website and to register for an Open Door Call scheduled for May 22, 2018. For providers and suppliers mired in the backlog of appeals at the Administrative Law Judge level, the SCF program is an alternative dispute resolution process which promises a potential payment resolution for those Medicare Part A and Part B claims, which were appealed to OMHA or the Medicare Appeals Council (Council) on or before November 3, 2017, as long as the ALJ hearing has not yet been scheduled or conducted.

For providers and suppliers whose primary focus is cash flow, settlement conferences are a viable alternative as the focus of discussion is limited to negotiation about payment. Providers and suppliers will not have the opportunity in SCF to make medical necessity arguments, policy arguments, or to argue the strength of the Medicare claims at issue. Similarly, the role of the OMHA-employed facilitator during the conference is to help the parties move towards resolution of the claims, and the facilitator does not play a role as a fact finder or make any determinations based on the merits of the claim. While neither party is required to settle the claim at issue, if the parties are able to reach a resolution, OMHA has explained that the settlement agreement will not specify an actual dollar amount, but a percentage of the Medicare approved amount at issue. In addition, unlike other settlement programs offered by the Centers for Medicare or Medicaid Services (CMS), SCF has no prescribed settlement percentage and OMHA has indicated that the agreement is unique to each appellant.

Historically, Phase I of the SCF pilot began in June 2014 and successfully settled over 2,000 Medicare Part B appeals. OMHA initiated Phase II in Fall 2015 and expanded the program to include most Part B provider and supplier appeals. Phase III of the program included certain Part A appeals and opened on February 25, 2016. In late 2017, around the same time that CMS announced its Low Volume Appeals Initiative, OMHA announced its plan for SCF expansion, and is currently involved in internal implementation of the program.

The SCF expansion will be an option for Medicare providers or suppliers who have not filed for bankruptcy and do not expect to file for bankruptcy in the future, and who have not had and do not currently have False Claims Act litigation or investigations pending against them or other program integrity issues. For an appeal to be eligible for the expanded SCF program, the appeals must meet several criteria, including the following: 

• Involve a request for Administrative Law Judge (ALJ) hearing or Council review filed on or before November 3, 2017;
• Involve a total or 500 or more appeals pending at OMHA and the Council combined, or involve any number of appeals pending at OMHA and the Council that each have more than $9,000 in billed charges;
• Arise from a Medicare Part A or Part B Qualified Independent Contractor (QIC) reconsideration decision;
• All pending OMHA and Council appeals associated with the NPI and Provider Transaction Access Number must be included in the SCF;
• The amount of each claim must be $100,000 or less (or for an extrapolated statistical sample, the overpayment amount extrapolated from the universe of claims must be $100,000 or less);
• The appeal must not be involved in the OMHA’s Statistical Sampling Initiative; and
• The appeal must not arise from a QIC or ALJ dismissal order.

A complete listing of the appeal eligibility criteria is posted on the OMHA website with links for registration for the Open Door Call on May 22, 2018, here.