Medicare
Concerns Regarding Plans to Transfer the Appeals Workload from SSA to HHS Remain
Gao ID: GAO-05-703R June 30, 2005
Medicare--the federal health insurance program that covers the nation's elderly and disabled--annually processes over 1 billion medical claims for services provided to beneficiaries. The Centers for Medicare & Medicaid Services (CMS), an agency within the Department of Health and Human Services (HHS), administers the Medicare program with the assistance of its claims administration contractors. These contractors are charged with processing and paying claims that are properly submitted and that are for medically necessary and covered services. The contractors also deny payment for claims considered invalid, incomplete, or otherwise improper. Medicare beneficiaries and providers have the right to appeal denied claims through a multilevel administrative process that includes a decision by an administrative law judge (ALJ). In fiscal year 2004, CMS's contractors denied over 158 million Medicare claims, about 5 million of which resulted in the initiation of appeals. In the same year, about 113,000 denied claims were appealed to ALJs. Two federal agencies--HHS and the Social Security Administration (SSA)--play a role in resolving Medicare appeals, but neither agency manages the entire process. In recent years, the Medicare appeals process has been the subject of widespread concern because of poor coordination between HHS and SSA and the time it takes to resolve appeals. In December 2000, the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA) was enacted. It mandated appeals reform, including stricter time frames for processing Medicare appeals. Additional changes were required 3 years later by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA). MMA mandated that SSA transfer its Medicare appeals workload to HHS, between July 1, 2005, and October 1, 2005--in effect, consolidating Medicare appeals within a single federal agency. In October 2004, we noted that transferring the Medicare appeals workload from SSA to HHS posed a complex challenge, requiring careful preparation and precise implementation of many interrelated tasks. We also reported that the plan that HHS and SSA jointly developed to transfer this workload lacked sufficient detail on how the transfer would be accomplished. We concluded that the absence of this information seriously jeopardized a successful and timely transition and threatened to compromise service to appellants. In light of our concerns, Congress asked us to monitor the transfer of the appeals workload from SSA to HHS. Specifically, our objectives were to (1) assess the agencies' progress in preparing to implement the transfer and (2) determine how HHS spent funds appropriated for transferring the appeals workload from SSA to HHS and related activities in fiscal year 2004 and the first half of fiscal year 2005.
In summary, we found that, although HHS and SSA have taken steps to prepare for the required transfer of the appeals function as required by MMA, some of the concerns we cited in our October 2004 report continue. With the July 1, 2005, implementation of the transfer plan quickly approaching, we identified three areas of concern. First, ensuring sufficient appellant access to hearings will be challenging. HHS has severely limited access to in-person hearings by establishing 4 hearing offices, in contrast to the 141 maintained by SSA. HHS will have to make special arrangements to obtain hearing space in other locations to ensure that appellants have adequate and timely access to in-person hearings. Despite its heavy reliance on videoconferencing (VTC) technology, HHS has not provided convincing evidence that appellants generally consider VTC hearings an adequate substitute for in-person hearings. HHS also faces a complex logistical task in arranging for thousands of VTC hearings, but has not estimated its needs based on SSA's recent hearing experience or another reasonable surrogate. Instead, HHS plans to tap these resources on an asneeded basis, providing little assurance that VTC hearings can be scheduled and completed within the stricter time frame. Second, HHS is facing tight time frames to hire and train ALJs to hear Medicare appeals. HHS has not yet hired its Chief ALJ, and, although 23 individuals have accepted offers to fill the 49 open positions for ALJs who are expected to hear appeals, HHS's hiring and training timetable is extremely ambitious and provides little margin for error. Third, HHS continues to face operational challenges that have not yet been resolved, such as implementing its new Medicare appeals case-tracking system at all levels of the appeals process. We are also concerned that, with such an enormous task still in front of it, HHS has not developed a specific contingency plan for processing appeals if for some reason it does not meet its October 1, 2005, deadline.
GAO-05-703R, Medicare: Concerns Regarding Plans to Transfer the Appeals Workload from SSA to HHS Remain
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June 30, 2005:
The Honorable Charles E. Grassley:
Chairman:
The Honorable Max Baucus:
Ranking Minority Member:
Committee on Finance:
United States Senate:
Subject: Medicare: Concerns Regarding Plans to Transfer the Appeals
Workload from SSA to HHS Remain:
Medicare--the federal health insurance program that covers the nation's
elderly and disabled--annually processes over 1 billion medical claims
for services provided to beneficiaries. The Centers for Medicare &
Medicaid Services (CMS), an agency within the Department of Health and
Human Services (HHS), administers the Medicare program with the
assistance of its claims administration contractors. These contractors
are charged with processing and paying claims that are properly
submitted and that are for medically necessary and covered services.
The contractors also deny payment for claims considered invalid,
incomplete, or otherwise improper. Medicare beneficiaries and providers
have the right to appeal denied claims through a multilevel
administrative process that includes a decision by an administrative
law judge (ALJ). In fiscal year 2004, CMS's contractors denied over 158
million Medicare claims, about 5 million of which resulted in the
initiation of appeals. In the same year, about 113,000 denied claims
were appealed to ALJs.
Two federal agencies--HHS and the Social Security Administration (SSA)-
-play a role in resolving Medicare appeals, but neither agency manages
the entire process. In recent years, the Medicare appeals process has
been the subject of widespread concern because of poor coordination
between HHS and SSA and the time it takes to resolve appeals. In
December 2000, the Medicare, Medicaid, and SCHIP Benefits Improvement
and Protection Act of 2000 (BIPA) was enacted. It mandated appeals
reform, including stricter time frames for processing Medicare appeals.
Additional changes were required 3 years later by the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003 (MMA).
MMA mandated that SSA transfer its Medicare appeals workload to HHS,
between July 1, 2005, and October 1, 2005--in effect, consolidating
Medicare appeals within a single federal agency.
In October 2004, we noted that transferring the Medicare appeals
workload from SSA to HHS posed a complex challenge, requiring careful
preparation and precise implementation of many interrelated
tasks.[Footnote 1] We also reported that the plan that HHS and SSA
jointly developed to transfer this workload lacked sufficient detail on
how the transfer would be accomplished. We concluded that the absence
of this information seriously jeopardized a successful and timely
transition and threatened to compromise service to appellants.
In light of our concerns, you asked us to monitor the transfer of the
appeals workload from SSA to HHS. Specifically, our objectives were to
(1) assess the agencies' progress in preparing to implement the
transfer and (2) determine how HHS spent funds appropriated for
transferring the appeals workload from SSA to HHS and related
activities in fiscal year 2004 and the first half of fiscal year 2005.
To address these matters, we followed up on the steps taken to address
weaknesses cited in our October 2004 report. We obtained documentation
on the transfer and discussed this information with HHS and SSA
officials. We also examined relevant laws, regulations, policies, and
procedures concerning the transfer of SSA's Medicare appeals workload
to HHS. In addition, we reviewed the budget assumptions and
documentation related to spending on transfer-related activities--
including reimbursements to SSA and CMS's implementation of BIPA
reforms--and interviewed HHS, CMS, and SSA budget officials on these
matters. We performed our work from October 2004 through June 2005, in
accordance with generally accepted government auditing standards.
We recognize that the implementation of the plan to transfer the
Medicare appeals function from SSA to HHS is at a critical and dynamic
stage. This report provides a snapshot of that progress as of May 26,
2005.
In summary, we found that, although HHS and SSA have taken steps to
prepare for the required transfer of the appeals function as required
by MMA, some of the concerns we cited in our October 2004 report
continue. With the July 1, 2005, implementation of the transfer plan
quickly approaching, we identified three areas of concern.
First, ensuring sufficient appellant access to hearings will be
challenging. HHS has severely limited access to in-person hearings by
establishing 4 hearing offices, in contrast to the 141 maintained by
SSA. HHS will have to make special arrangements to obtain hearing space
in other locations to ensure that appellants have adequate and timely
access to in-person hearings. Despite its heavy reliance on
videoconferencing (VTC) technology, HHS has not provided convincing
evidence that appellants generally consider VTC hearings an adequate
substitute for in-person hearings. HHS also faces a complex logistical
task in arranging for thousands of VTC hearings, but has not estimated
its needs based on SSA's recent hearing experience or another
reasonable surrogate. Instead, HHS plans to tap these resources on an
as-needed basis, providing little assurance that VTC hearings can be
scheduled and completed within the stricter time frame.
Second, HHS is facing tight time frames to hire and train ALJs to hear
Medicare appeals. HHS has not yet hired its Chief ALJ, and, although 23
individuals have accepted offers to fill the 49 open positions for ALJs
who are expected to hear appeals, HHS's hiring and training timetable
is extremely ambitious and provides little margin for error.
Third, HHS continues to face operational challenges that have not yet
been resolved, such as implementing its new Medicare appeals case-
tracking system at all levels of the appeals process.
We are also concerned that, with such an enormous task still in front
of it, HHS has not developed a specific contingency plan for processing
appeals if for some reason it does not meet its October 1, 2005,
deadline.
We also reviewed HHS's spending on the transfer of the appeals function
and related activities in fiscal year 2004 and the first half of fiscal
year 2005. We found that for fiscal year 2004, HHS spent less than it
had been appropriated for transfer-related activities and SSA appeals
processing. Furthermore, HHS spent slightly more than half of its
fiscal year 2005 appropriation during the first two quarters of the
fiscal year. Enclosure I contains briefing slides that elaborate on our
findings.
We provided SSA and HHS with a draft of this report for comment. In its
written comments, SSA did not indicate whether it agreed or disagreed
with the information we presented in our report. However, SSA stressed
its commitment to successfully transferring the appeals workload to
HHS, while maintaining service to appellants. SSA also updated the
information contained in our draft, most notably, that it submitted a
plan to the Office of Management and Budget on June 1, 2005, for
completing its pending Medicare appeals workload. SSA commented that it
would have between 3,000 to 5,000 Medicare claims pending on October 1,
2005--the date the transition is to be completed. Furthermore, SSA did
not provide written assurance as to when these appeals would be
completed.
HHS also provided written comments and stated that it generally agreed
with the report's contents and described its most recent progress in
preparing for the transfer of the appeals function. However, HHS
suggested that our report contained two inaccuracies. First, HHS took
issue with our statement that it had not provided convincing evidence
that appellants generally consider VTC hearings an adequate substitute
for in-person hearings and concluded that our statement was based on a
faulty premise. HHS said that the applicable statutory provision does
not include any specific requirements regarding the form that hearings
must take and that the only requirement is that they comport with due
process. However, our concern extends beyond legal requirements and
encompasses a variety of reasons why appellants may be uncomfortable
with VTC hearings. For example, beneficiary appellants may be
intimidated by the unfamiliar technology or may be concerned that a
lack of personal contact with the ALJ may put them at a disadvantage.
It is this type of information--the beneficiary appellants' perspective
on the use of VTCs as opposed to in-person hearings--that HHS has not
provided. Second, HHS said that our statement that those appealing to
the ALJ level have a right to an in-person hearing is inaccurate. We
recognize that the provision of the act governing hearings, which was
enacted in 1939, does not specify the form they must take,[Footnote 2]
but until 2003 the regulations did not contemplate VTC
hearings.[Footnote 3] When SSA amended these regulations in 2003 to
facilitate the use of VTC hearings, no changes were made to preclude or
significantly burden an appellant's choice of an in-person
hearing.[Footnote 4] We revised our wording to reflect that appellants
may choose an in-person hearing.
Both SSA and HHS provided technical comments, which we incorporated as
appropriate. (See enclosure II for a copy of SSA's comments and
enclosure III for a copy of HHS's comments.)
We provided your staff with the information contained in this report on
May 26, 2005. As discussed with your staff during that briefing, we
agreed to issue this report to you containing the information we
provided. As agreed with your office, unless you publicly announce its
contents earlier, we plan no further distribution of this report until
30 days after its issue date. At that time, we will send copies to the
Secretary of HHS, the Commissioner of SSA, and other interested
parties. We will also make copies available to others upon request. In
addition, this report will be available at no charge on GAO's Web site
at http://www.gao.gov.
If you or your staff have any questions about this report, please call
me at (312) 220-7600. Contact points for our Offices of Congressional
Relations and Public Affairs may be found on the last page of this
report. Geraldine Redican-Bigott, Enchelle Bolden, Helen Desaulniers,
Shirin Hormozi, Barbara Mulliken, and Craig Winslow made key
contributions to this report.
Signed by:
Leslie G. Aronovitz:
Director, Health Care:
Enclosures --3:
GAO Briefing:
MEDICARE: Concerns Regarding Plans to Transfer the Appeals Workload
from SSA to HHS Remain:
Briefing to the Staff of the Senate Committee on Finance:
May 26, 2005:
MEDICARE: Concerns Regarding Plans to Transfer the Appeals Workload
from SSA to HHS Remain:
* Introduction:
* Objectives:
* Scope and Methodology:
* Results in Brief:
* Background:
* GAO Findings:
Introduction:
The Medicare appeals process has been the subject of widespread concern
in recent years because of the time it takes to resolve appeals of
denied claims.
Two federal agencies play a role in deciding Medicare appeals, but
neither agency manages the entire four-level administrative appeals
process. The Department of Health and Human Services (HHS) is
responsible for overseeing the Medicare program, including managing
three levels of the appeals process. However, the Social Security
Administration (SSA), formerly an agency within HHS, has continued to
hear appeals at the third level in the process, despite the fact that
it became an independent agency in 1995.
To help expedite the adjudication of appealed claims, the Congress
passed two laws:
* The Medicare, Medicaid, and SCHIP Benefits Improvement and Protection
Act of 2000 (BIPA), which established stricter time frames for
processing Medicare appeals.
* The Medicare Prescription Drug, Improvement, and Modernization Act of
2003 (MMA) mandated transfer of SSA's Medicare appeals function to HHS.
As a result, all levels of the administrative appeals process will
reside within a single federal agency.
Our October 4, 2004, report, Medicare: Incomplete Plan to Transfer
Appeals Workload from SSA to HHS Threatens Service to Appellants (GAO-
05-45), noted that transferring the Medicare appeals function from SSA
to HHS posed a complex challenge, requiring careful preparation and
precise implementation of many interrelated tasks. We found that the
plan developed by SSA and HHS to transfer the Medicare appeals workload
lacked sufficient details. We concluded that the absence of specific
information on how the transfer would be implemented seriously
jeopardized a successful and timely transition and threatened to
compromise service to appellants.
Objectives:
We were asked to:
1. assess the progress in preparing to implement the transfer of the
Medicare appeals function from SSA to HHS and:
2. determine how HHS spent funds appropriated for transferring the
appeals workload from SSA to HHS and related activities in fiscal year
2004 and the first half of fiscal year 2005.
Scope and Methodology:
To perform our work, we:
* followed up on steps the agencies have taken to address weaknesses
cited in our October 2004 report, obtained documentation on transfer
activities, and discussed this information with HHS and SSA officials;
* examined laws, regulations, policies, and procedures relevant to the
transfer of the Medicare appeals workload; and:
* reviewed the budget assumptions and documentation related to the
allocation and spending of appeals transfer funds, and interviewed
budget officials from HHS and SSA.
We performed our work from October 2004 through June 2005, in
accordance with generally accepted government auditing standards.
Results in Brief:
HHS and SSA are taking steps to prepare for the transfer of the
Medicare appeals workload by October 1, 2005, as required by MMA.
However, we are concerned that HHS's approach for accomplishing the
remaining key tasks follows an ambitious schedule that leaves little
margin for error. Our concerns focus on HHS's ability to maintain
sufficient appellant access to hearings, meet critical resource needs,
and resolve operational issues.
In FY 2004, HHS spent $59.5 million of the $77 million appropriated for
the transfer of the appeals function and related activities. In FY
2005) HHS was appropriated $81 million for the transfer and related
activities and an additional $49.6 million to reimburse SSA for hearing
Medicare appeals. HHS spent slightly more than half of these funds
through the first two quarters of the fiscal year.
Background:
Medicare covers a variety of health care services including inpatient
hospital care, physician services, and diagnostic tests. In addition,
as a result of MMA, beneficiaries will be able to participate in
Medicare's new, voluntary prescription drug benefit, beginning in
January 2006. Like other denied claims, denied prescription drug claims
will also be subject to appeal.
The Centers for Medicare & Medicaid Services (CMS), an agency within
HHS, is responsible for administering the Medicare program, with
assistance from its claims administration contractors. These
contractors are charged with processing and paying claims that are
properly submitted and that are for medically necessary and covered
services.
Medicare's claims administration contractors are also charged with
identifying and denying claims that are invalid, incomplete, or
improper. For example, a claim may be denied if a beneficiary received
services that were medically unnecessary or not covered by Medicare, or
if the deadline for filing claims had been exceeded.
In FY 2004, over 158 million Medicare claims were denied and about 5
million were appealed to the first level in the process. That same
year, about 113,000 denied claims were appealed to the third level of
the process, where administrative law judges (ALJs) hear and decide
appeals. An appeal may consist of more than one denied claim.
The administrative appeals process consists of four levels:
* CMS's claims administration contractors resolve appeals at the first
two levels.
* ALJs from SSA hear and decide appeals at the third level of the
process. At this level, appellants may choose an in-person hearing.
* The Medicare Appeals Council, within HHS's Departmental Appeals
Board, resolves appeals at the fourth level.
* Appellants who are dissatisfied with decisions reached at one level
in the appeals process may submit their appeal to the next level.
Until FY 2004, the President's budget submission to Congress included a
request for SSA to be provided with funds to process Medicare appeals.
However, the FY 2004 submission requested that HHS be provided with
funds to process appeals, instead of SSA. SSA subsequently entered into
an agreement with HHS to hear appeals, and Congress appropriated funds
to HHS to pay SSA for its work.
HHS budgeted $50 million in both fiscal years 2004 and 2005 to
reimburse SSA for adjudicating Medicare appeals.
MMA specified that the ALJ function be transferred from SSA to HHS no
earlier than July 1, 2005, and no later October 1, 2005. MMA also
directed SSA and HHS to develop a plan detailing how the transfer would
take place and specified that certain elements be addressed. Among
other things, the plan was to:
* provide for an appropriate geographic distribution of ALJs throughout
the United States;
* identify steps for hiring ALJs and training them about Medicare law
and regulation;
* establish appropriate staffing levels, considering the current and
anticipated appeals workload;
* address the feasibility of conducting hearings using
videoconferencing (VTC) technologies; and:
* establish management tools, including specific regulations to govern
the appeals process, a timetable for accomplishing the transfer, and a
case-tracking system to facilitate the maintenance and transfer of data
across all levels of the appeals process.
In response to MMA's mandate, SSA and HHS jointly developed the
required transfer plan. The plan provides that, beginning July 1, 2005-
3 months before the mandatory transfer date established by MMA all
Medicare appeals that otherwise would have been sent to SSA will
instead be sent to HHS for adjudication, with one exception: Appeals
related to Medicare's managed care claims will be sent to HHS beginning
September 1, 2005. This approach was designed to enable SSA to
concentrate on completing its pending Medicare appeals workload from
July 1, 2005, through September 30, 2005. This strategy was also
intended to permit HHS to fully assume the Medicare appeals hearing
function on October 1, 2005, without inheriting a pending workload from
SSA.
CMS published procedures and guidance on implementing statutory changes
to the appeals process resulting from both BIPA and MMA in an Interim
Final Rule with Comment Period in March 2005. As a result, additional
changes to the appeals process will include:
* replacing the claims administration contractors who resolve the
appeals at the second level of the process with a new type of
contractor, called qualified independent contractors (QIC) and:
* meeting the requirements for faster resolution of appeals:
QICs will have to resolve appeals in 60 days, compared with the current
120-day requirement for the hearing officers at the claims
administration contractors.
HHS ALJs will have to resolve appeals within 90 days. SSA ALJs
currently have no time limit but, between October 2004 and March 2005,
took an average of 295 days to resolve appeals.
These changes were implemented for some QICs on May 1, 2005, and will
be fully implemented when the remaining QICs become operational on
January 1, 2006.
In our October 2004 report, we recommended that, to facilitate the
transfer of SSA's ALJ workload to HHS, the Secretary of HHS and the
Commissioner of SSA should, among other things,
* identify where staff and hearing facilities including VTC equipment
are needed;
* develop an approach to ensure that ALJs and support staff can be
hired and adequately trained; and:
* prepare a detailed project plan that includes key elements essential
to the transfer of the ALJ function from SSA to HHS, including
contingency plans for appeals to be decided, if the transfer is not
completed by October 1, 2005.
GAO Findings:
Objective 1: Preparations to Implement the AU Transfer Plan:
Since we issued our October 2004 report, HHS and SSA have made progress
in completing tasks necessary to facilitate the transfer of the ALJ
workload from one agency to the other. However, as of May 26, 2005,
some of the recommendations we made in that report had not been fully
addressed.
Specifically, since the issuance of our October 4, 2004, report, we
have identified three ongoing concerns related to the implementation of
the ALJ transfer plan:
1. Maintaining Sufficient Appellant Access to Hearings:
* reliance on widespread use of VTC hearings.
* in-person hearings result in waiver of the statutory 90-day deadline.
2. Meeting Critical Human Resource Needs:
3. Resolving Operational Issues:
* delay in fully implementing appeals case-tracking system:
* lack of contingency planning:
Objective 1: Preparations to Implement the ALJ Transfer Plan:
Maintaining Sufficient Appellant Access-Reliance on Widespread Use of
VTC Hearings Raises Concerns:
As of October 4, 2004:
* HHS reported it would locate the central office in the Baltimore/
Washington area and planned to develop a process to identify other
hearing office locations.
As of May 26, 2005:
* HHS will locate a central hearing office in Arlington, VA; and three
other hearing offices in Miami, FL; Cleveland, OH; and Irvine, CA. The
Arlington site will also function as a hearing office. HHS stated that
having a small number of offices is cost-effective and will enable it
to open them quickly. HHS noted it may later need to realign this
structure on the basis of workload experience. (See fig. 1.)
Objective 1: Reliance on Widespread Use of VTC Hearings Raises
Concerns:
Figure 1: Distribution of SSA's and HHS's Hearing Offices:
Distribution of SSA's 141 Hearing Offices New HHS Hearing Offices:
[See PDF for image]
Source: SSA. Source: GAO.
[A] The Arlington, VA office will be smaller than the other three
hearing offices. It will serve the Washington, DC metro area and also
assist in processing cases for other regions as needed.
[End of figure]
As of October 4, 2004:
HHS indicated it planned to relV heavily on VTCs but had not determined
the proportion of appellants willing to conduct hearinqs usin this
technology. Several ALJs~old us that beneficiaries are often
uncomfortable using VTC facilities and prefer in-person hearings. HHS
said it would study how best to employ VTCs in the hearing process.
As of May 26, 2005:
HHS expects most appellants to use VTCs. According to HHS, about 90
percent of appellants are providers, many of whom are familiar with
VTCs, and are represented by law firms with their own VTC equipment.
HHS stated that some ALJs and beneficiaries will still travel to
hearinq locations. CMS's rule does not address whether appellants would
be paid for travel,.but HHS said it will issue quidance on this by the
time its ALJs begin hearing appeals.
As of October 4, 2004:
HHS did not provide information on the number of hearings it expected
to conduct in-person and by VTC.
As of May 26, 2005:
HHS estimates that its ALJs will receive 42,000 Medicare appeals in FY
2006, excluding appeals resulting from the new prescription drug
benefit. HHS acknowledged that it does not have a reliable projection
of future appeals associated with this new benefit but believes that
the number will be small. HHS noted that not all appeals require
hearings. It estimates about three-quarters of appeals received will
result in hearings.
As of October 4, 2004:
HHS did not specify its VTC needs, including the number of sites needed
or the location of anticipated VTC sites.
As of May 26, 2005:
HHS said it cannot precisely specify its equipment needs but will have
31 VTC facilities in its 4 hearing offices. It may also use VTC
facilities in its 10 regional offices. HHS also told us it has access
to VTC facilities in 503 cities nationwide. This includes access to
sites operated by (1) private vendors that have existing federal
contracts and (2) SSA, which will give HHS access to VTC facilities i n
69 of its locations.
As of October 4, 2004:
CMS is testing a Web site for beneficiaries to access their claims
information. HHS planned to study the feasibility of using this Web
site for electronic filing of appeals.
As of May 26, 2005:
CMS is conducting its test for a limited population and may expand
participation over the next 2 years. There is no timetable, however,
for when it may be possible for appeals to be filed electronically.
GAO Observations:
While HHS provided a rationale for choosing its four locations that it
believes is cost-effective, the number of hearing sites dedicated to
HHS's use for in-person hearings will be greatly reduced. HHS will have
to make arrangements to schedule hearings elsewhere on an as-needed
basis to ensure that appellants granted in-person hearings have
reasonable and timely access to them.
In addition, although HHS told us that most providers and attorneys are
familiar with VTC technology, it has not shown that these appellants or
beneficiaries generally consider VTC hearings an adequate substitute
for in-person hearings.
HHS faces a complex logistical task in arranging for thousands of VTC
hearings that may be required to resolve appeals within the statutory
90-day deadline. However, HHS has indicated that it cannot determine
the number of hearings it will hold by VTC, and, as a result, it has
not calculated how many hearings it can conduct using its equipment and
VTC facilities available from private vendors and SSA. While it is
understandable that HHS cannot anticipate the locations where it will
need to conduct VTC hearings with great precision, it has not developed
estimates of its VTC needs based on SSA's recent hearing experience or
another reasonable surrogate to help it address this overwhelming task.
Instead, HHS plans to tap these resources as needed, providing little
assurance that VTC hearings can be scheduled and completed in a timely
manner.
While HHS is studying the feasibility of using CMS's beneficiary Web
site for electronic appeals submissions, it will not be available to
beneficiaries in the short-term.
Objective 1: Preparations to Implement the ALJ Transfer Plan:
Maintaining Sufficient Appellant Access-In-Person Hearings Result in
Waiver of the Statutory 90-day Deadline:
As of October 4, 2004:
HHS said that its regulations would also address the use of VTCs in
lieu of in-person hearings.
As of May 26, 2005:
Under CMS's rule, appellants who request and show good cause for in-
person hearings may, with management approval, be granted one. But such
requests will constitute waiver of the statutory 90-day requirement for
a decision. Although HHS said it will revise the rule to clarify that
there will be no waiver when requests are denied, appellants granted in-
person hearings will lose the benefit of any deadline.
Objective 1: In-Person Hearings Result in Waiver of the Statutory 90-
day Deadline:
GAO Observations:
The rule does not provide clear standards for appellants to show good
cause when requesting in-person hearings. It also does not include any
deadlines for scheduling such hearings or deciding these appeals. This
may most affect the 10 percent of appellants who are beneficiaries as
opposed to providers represented by law firms and who may not be
familiar with VTCs or have easy access to VTC facilities.
HHS Faces Challenges in Meeting Critical Human Resource Needs:
As of May 26, 2005:
HHS stated that it was working with the Office of Personnel Management
(OPM) to expedite the hiring of at least 50 ALJs.
As of October 4, 2004:
HHS plans to hire 54 ALJs a Chief ALJ, 4 managing ALJs, and 49 ALJs who
will hear appeals. Offers have been accepted for all 4 managing ALJ
positions. One of the managing ALJs is currently serving as the acting
Chief Judge. In addition, offers have been accepted for 23 of the 49
positions for ALJs who will hear Medicare appeals. HHS plans to hire
half of its ALJs by mid-June 2005 and the other half by late July 2005.
Objective 1: HHS Faces Challenges in Meeting Critical Human Resource
Needs:
As of October 4, 2004:
HHS said that, in addition to relying on workload and staffing data
from SSA, it would conduct its own additional analysis to develop its
workload forecasts and staffing needs.
As of May 26, 2005:
HHS maintains that 54 ALJs will be a sufficient number to manage the
anticipated appeals workload within its statutory 90-day deadline. It
based this on SSA's staffing data and discussions with SSA officials.
HHS said that it expects to be very efficient, which will enable it to
resolve appeals more quickly than SSA. HHS will also set aggressive
processing standards for hearing offices and plans to monitor their
performance.
As of October 4, 2004:
HHS had not determined how it would distribute its ALJ positions.
As of May 26, 2005:
HHS determined that it will place a Chief ALJ and 4 ALJs in its
Arlington office and 15 ALJs in each of the other 3 locations. I n
addition, each of HHS's 4 hearings offices will be headed by a managing
ALJ.
As of October 4, 2004:
In addition to working with OPM to obtain ALJs, HHS was also relying on
OPM for assistance in hiring support staff.
As of May 26, 2005:
According to HHS, offers have been accepted for each of the 4 hearing
office manager positions. HHS also plans to hire half of its support
staff-including 85 attorneys-by mid-June 2005 and the other half by
late July 2005. Seventeen attorneys have accepted positions, and 63
offers are outstanding. HHS noted that its appeals workload will not be
at full strength on July 1, 2005, and that more staff will be added
following the transfer.
As of October 4, 2004:
HHS stated it would consider Medicare expertise as a factor in hiring
its ALJs. However, OPM's registry of ALJ applicants does not indicate
whether they have Medicare expertise.
As of May 26, 2005:
HHS stated that many of the individuals who have accepted ALJ positions
are SSA employees with Medicare experience, but said it could not
supply precise information until a later date. HHS also emphasized that
MMA did not require that it hire ALJs with Medicare expertise only that
HHS consider this as a factor in the hiring process.
As of October 4, 2004:
HHS reported that it had contracted with HHS University its internal
training unit to analyze training needs, oversee the development of
training materials, and schedule classes.
As of May 26, 2005:
HHS plans to begin training the first group of newly hired ALJs and
support staff in mid-June 2005. Three weeks of training will be
provided, including 3 days devoted to Medicare law. In addition, those
beginning careers as ALJs will attend 2 weeks of training at the
National Judicial College in mid-July 2005. HHS stated that the
majority of training will be conducted before ALJs hear cases.
GAO Observations:
With about 5 weeks remaining before implementation of the transfer plan
is due to begin, HHS has not yet hired a Chief Judge. Although a
managing ALJ is currently acting as Chief Judge, and, according to HHS,
has authority to develop policies and make key human resource
decisions, we believe that the delay in hiring a permanent Chief Judge
is less than ideal. The uncertainty that inherently accompanies an
acting status, in our view, adds to the complexities associated with an
already challenging task and makes a smooth transition more difficult.
HHS has assured us that it will be ready to begin implementing the
transfer on July 1, 2005, as planned. However, we are concerned with
HHS's tight schedules for hiring and training staff. HHS's hiring and
training timetables are ambitious and provide little margin for error.
A delay in meeting either schedule could affect the agency's ability to
begin hearing appeals on time or resolving appeals within the required
statutory 90-day deadline.
While not an MMA requirement, the hiring of ALJs with Medicare
expertise would help facilitate a successful transition, as cases may
be resolved more expeditiously by ALJs already familiar with Medicare
law. However, it is unclear whether the majority of ALJs that HHS will
be able to ultimately hire will have such expertise. Other than
providing 3 days of initial Medicare training, HHS has not specified
how it plans to cultivate this expertise among its ALJs and other
professional staff who have little or no Medicare experience.
Although HHS expects to have a sufficient number of ALJs to manage its
workload and also plans to operate more efficiently than SSA, we remain
skeptical, given an anticipated workload of 42,000 appeals in FY 2006.
Assuming that one-quarter of these appeals do not require hearings, HHS
ALJs will still need to complete, on average, about 3 appeals a day in
order to manage this workload. Moreover, any administrative or
logistical difficulties such as the inability to arrange for VTC access
at key times or obtain necessary case files could hamper HHS's ability
to resolve appeals in a timely manner.
Resolving Operational Issues-Delays in Fully Implementing New Appeals
Case-Tracking System:
As of October 4, 2004:
HHS's incremental approach to implementing its newly developed appeals
case-tracking system intended to correct existing system
incompatibilities between all four levels of the process seemed
reasonable. However, initial plans to test the functionality of the
system with QICs did not occur in the summer of 2004, as planned.
As of May 26, 2005:
Full implementation of the new system is delayed. HHS tested the system
at the QIC and ALJ levels in April 2005 and said it is ready to be
implemented at those two levels. However, it was to be available at the
first level of the appeals process by June 2005. HHS reports that this
will not occur but stated that it will consider the feasibility of
expanding the system to the first level in FY 2006.
Objective 1: Delays in Fully Implementing New Appeals Case-Tracking
System:
GAO Observations:
HHS's appeals case-tracking system was intended to facilitate the
maintenance and transfer of case-specific data throughout the four
levels of the appeals process and to correct long-standing case
management problems. However, it is now scheduled to be implemented
only at the second and third levels. HHS is reconsidering its
implementation at the first level and also has not indicated when it
will be used to track appeals at the fourth level of the process.
Resolving Operational Issues Lack of Contingency Planning:
As of October 4, 2004:
HHS stated that it would address contingencies as needed but did not
provide details on the specific steps that might be taken.
As of May 26, 2005:
HHS stated that its plan to begin transferring the ALJ workload on July
1, 2005-3 months before MMA's deadline will allow the agency sufficient
time to address potential problems.
Objective 1: Lack of Contingency Planning:
As of October 4, 2004:
HHS reported having a mechanism to continue using SSA ALJs after the
mandatory transfer date, if necessary.
As of May 26, 2005:
HHS mentioned, among other things, the MMA and the Economy Act, as
possible bases for a mechanism to allow SSA ALJs to continue hearing
Medicare appeals if the transfer is not fully accomplished on time.
However, HHS and SSA have not developed plans for using a specific
mechanism or formalized an agreement for completing SSA's pending
workload.
Objective 1: Lack of Contingency Planning:
As of October 4, 2004:
SSA ended FY 2004 with about 28,700 pending Medicare appeals. SSA
estimated it would need to resolve about 74,900 Medicare appeals cases
by the end of FY 2005 to finish its Medicare appeals workload. This
includes the 28,700 cases pending at the end of FY 2004 and about
46,200 new cases it expected to receive in FY 2005.
As of May 26, 2005:
SSA's pending workload has increased. As of late April 2005, SSA had
30,918 pending appeals cases about 2,200 more than were pending when
the fiscal year began. While SSA is committed to completing this
workload, it acknowledged that it is unlikely that it will be able to
do so by the October 1, 2005, transfer deadline.
GAO Observations:
HHS indicates that it is on schedule for completing the transfer by
MMA's October 1, 2005, deadline and that beginning the transfer on July
1, 2005, will provide sufficient time to address potential problems.
However, if significant problems develop, HHS has not formulated a
specific contingency plan to resolve them.
SSA and HHS have not formalized an agreement that outlines SSA's
commitment to complete its pending Medicare workload after the transfer
date. As a result, there is little assurance that SSA will not
ultimately transfer this workload to HHS.
Without preparing for SSA to continue hearing Medicare appeals, HHS
provides little assurance that disruption to the process can be
avoided, should it be unable to begin hearing such appeals on time.
Objective 2: HHS Spending on the Appeals Transfer and Related
Activities:
* HHS spent a little over three-quarters of the funds appropriated for
the transfer of the appeals function and related activities in FY 2004.
HHS has spent slightly more than half of the funds appropriated for the
transfer and related activities in the first two quarters of FY 2005.
* HHS spent only $59.5 million of the $77 million appropriated for the
appeals transfer and related activities in FY 2004. This lower spending
was due to, among other things, HHS's reimbursing SSA $37.5 million for
hearing appeals substantially less than the $50 million HHS had
originally budgeted.
* In FY 2005, the appropriation for the appeals transfer and related
activities was increased to $81 million. In the first two quarters of
FY 2005, HHS spent $47.6 million on appeals activities. In addition,
another $49.6 million was appropriated to reimburse SSA for continuing
to adjudicate Medicare appeals. HHS paid SSA $24.8 million for
adjudicating appeals in the first two quarters of FY 2005. (See table
1.)
Table 1: FY 2004 and FY 2005 Budget Requests, Appropriations, and
Actual Spending (Dollars in millions):
[See PDF for image]
Source: HHS.
Notes: Amounts include funds spent by HHS and CMS, an agency within
HHS. N/A = not applicable.
[End of table]
[End of slide presentation]
[End of section]
Comments from the Social Security Administration:
SOCIAL SECURITY:
The Commissioner:
June 15, 2005:
Ms. Leslie G. Aronovitz:
Director, Health Care-Program Administration and Integrity Issues:
U.S. Government Accountability Office:
Room 5-A-14:
441 G Street NW:
Washington, D.C. 20548:
Dear Ms. Aronovitz:
Thank you for the opportunity to review and comment on the draft
Government Accountability Office (GAO) correspondence "MEDICARE:
Concerns Remain Regarding Plans to Transfer the Appeals Workload from
SSA to HHS" (GAO-05-703R).
First and foremost, I wish to reiterate my commitment to making the
Social Security Administration's (SSA) transfer successful and to
maintaining service to appellants throughout the process. The draft
correspondence correctly notes that the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003 (MMA) transfers authority
from SSA to the Department of Health and Human Services (HHS) for the
Medicare appeals hearings function, effective October 1, 2005. However,
in the event that it is necessary, SSA and HHS have identified a
mechanism for HHS to continue to use SSA Administrative Law Judges to
adjudicate Medicare appeals after the statutory date of transfer.
Enclosed are detailed comments and suggestions we have on the draft
correspondence. If you have any questions, please have your staff
contact Ms. Candace Skurnik at (410) 965-4636.
Sincerely,
Signed by:
Jo Anne B. Barnhart:
Enclosure:
SOCIAL SECURITY ADMINISTRATION:
BALTIMORE MD 21235-0001:
COMMENTS ON THE GOVERNMENT ACCOUNTABILITY OFFICE (GAO) DRAFT
CORRESPONDENCE "MEDICARE: CONCERNS REMAIN REGARDING PLANS TO TRANSFER
THE APPEALS WORKLOAD FROM SSA TO HHS" (GAO-05-703R):
We appreciate the opportunity to comment on the GAO draft
correspondence concerning the transfer of the Medicare appeals workload
from the Social Security Administration (SSA) to the Department of
Health and Human Services (HHS).
SSA recognizes there are considerable challenges remaining in the
effort to transfer the Medicare appeals workloads to HHS. While much of
the responsibility for addressing these challenges rests with HHS, SSA
will continue to work with them to accomplish an orderly transition of
this workload.
For example, SSA and HHS have jointly studied opportunities for sharing
video-teleconferencing (VTC) sites. SSA and HHS are developing options
that will allow HHS access to our VTC sites in a variety of locations
to help meet HHS' needs. SSA plans to permit the use of its VTC sites
to the extent that it will not interfere with SSA workloads, and in a
manner which will not inconvenience SSA claimants. SSA will continue to
provide data regarding its experience in processing Medicare appeals to
assist HHS in estimating their VTC and Medicare appeals hearing
workload needs.
As to the specific findings, we offer the following comments.
Page 50: As of May 26, 2005, SSA's pending workload has increased. As
of late April 2005, SSA had 30,918 pending appeals cases - about 2,200
more than were pending when the fiscal year began. While SSA is
committed to completing this workload, it acknowledged that it is
unlikely that it will be able to do so by the October 1, 2005, transfer
deadline.
We offer the following updated Medicare appeals workload information
for the month of May 2005:
Medicare pending: 30,879 cases;
Medicare receipts: 9,620 cases;
Medicare dispositions: 9,659 cases.
The pending Medicare workload in May continues to be higher than it was
at the beginning of the fiscal year. However, the total pending at the
end of May 2005 is more than 10,000 cases below the same time last year
and Medicare dispositions are far ahead of the pace issued in 2004
(more than 6,500 cases ahead of last year at this time). And as of June
2005, more than half of all of the pending Medicare cases at SSA (52
percent) are either scheduled for a hearing or ready to be scheduled
for a hearing.
We remain committed to processing all Medicare cases pending with SSA
as of September 30, 2005, including remanded cases issued by SSA that
are received through September 30, 2005. We anticipate that between
3,000 and 5,000 Medicare cases will be pending in SSA as of October 1,
2005, but we will be able to more precisely assess both the number and
when the pending workload will be completed after the flow of most new
receipts ends on June 30, 2005.
Page 51: SSA and HHS have not formalized an agreement that outlines
SSA's commitment to complete its pending Medicare workload after the
transfer date. As a result, there is little assurance that SSA will not
ultimately transfer this workload to HHS.
SSA submitted a contingency plan to OMB on June 1, 2005, under which
SSA has committed in writing to processing to completion all those Part
A and B appeals received by June 30, 2005, and all those Part C appeals
received by August 31, 2005. While we intend to execute an MOU which
will discuss any necessary details about this and other aspects of the
transfer, we believe that the plan submitted to OMB sufficiently
formalizes the commitment we gave in our response to GAO on this same
point on April 14, 2005. Also, we have recently agreed with HHS to
process remanded cases decided by SSA that are received in SSA through
September 30, 2005. Further, SSA will process remands on cases decided
by SSA that are received from October 1 through December 31, 2005, for
which a hearing is not required.
SSA is committed to complete the processing of Medicare cases for which
we have responsibility pursuant to these arrangements. Until the
pending Medicare workload is completed, the necessary infrastructure
will remain in place to ensure that the workload is completed. For
example, SSA will continue to operate the Medicare management workgroup
which is responsible for managing and monitoring the Medicare workload
in SSA. Also, SSA's Medicare screening unit will continue in operation
to provide assistance in processing the workload.
Page 51: Without preparing for SSA to continue hearing Medicare
appeals, HHS provides little assurance that disruption to the process
can be avoided, should it be unable to begin hearing such appeals on
time.
SSA is prepared to continue to hear new Medicare appeals, if necessary.
While we are processing the remaining Medicare cases pending in SSA, we
will continue to maintain the infrastructure needed to receive and
process new Medicare appeals, if needed.
Technical comments:
Page 13: Like other denied claims, denied prescription drug claims will
also be subject to appeal.
The right to appeal does not depend on the fact that the claim was
denied. The sentence should state that "Individuals who are
dissatisfied with the determination made on their claim may appeal the
determination." This change would make the language consistent with
that on the bottom of page 15 of the report.
Page 15: ALJs from SSA hear and decide appeals at the third level of
the process. At this level, appellants have the right to an in-person
hearing.
The phrase "in-person" should be deleted, since the statute does not
specify whether or not the hearing has to be "in-person." See, e.g.
section 1869(d) of the Act (referring to a hearing by an administrative
law judge).
Page 19: In response to MMA's mandate, SSA and HHS jointly developed
the required transfer plan. The plan provides that, beginning July 1,
2005 - 3 months before the mandatory transfer date established by MMA-
all Medicare appeals that otherwise would have been sent to SSA, will
instead be sent to HHS for adjudication.
The statement should be revised to reflect that the Transfer Plan
provides that all Medicare appeals will be sent to HHS beginning July
1, 2005, except Part C, which will be sent to HHS beginning September
1, 2005.
[End of section]
Comments from the Department of Health and Human Services:
DEPARTMENT OF HEALTH & HUMAN SERVICES:
Office of Inspector General:
JUN 16 2005:
Ms. Leslie G. Aronovitz:
Director, Health Care:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Ms. Aronovitz:
Enclosed are the Department's comments on the U.S. Government
Accountability Office's (GAO's) draft correspondence entitled,
"MEDICARE: Concerns Remain Regarding Plans to Transfer the Appeals
Workload from SSA to HHS" (GAO-05-703R). The comments represent the
tentative position of the Department and are subject to reevaluation
when the final version of this report is received.
The Department appreciates the opportunity to comment on this draft
report before its publication.
Sincerely,
Signed by:
Daniel R. Levinson:
Acting Inspector General:
Enclosure:
The Office of Inspector General (OIG) is transmitting the Department's
response to this draft correspondence in our capacity as the
Department's designated focal point and coordinator for U.S. Government
Accountability Office reports. OIG has not conducted an independent
assessment of these comments and therefore expresses no opinion on
them.
COMMENTS OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES ON THE U.S.
GOVERNMENT ACCOUNTABILITY OFFICE'S DRAFT CORRESPONDENCE ENTITLED
"MEDICARE: CONCERNS REMAIN REGARDING PLANS TO TRANSFER THE APPEALS
WORKLOAD FROM SSA TO HHS" (GAO-05-703R):
The Department of Health and Human Services (HHS) appreciates the
opportunity to review and comment on the U.S. Government Accountability
Office's (GAO's) draft correspondence, which was prepared as a follow
up to GAO's earlier report entitled, "MEDICARE-Incomplete Plan to
Transfer Appeals Workload from SSA to HHS Threatens Service to
Appellants" (GAO-05-45), published October 4, 2004.
Section 931 of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (MMA) mandated that responsibility for the
functions of administrative law judges (ALJs) who hear Medicare appeals
under Title XVIII of the Social Security Act (the Act) be transferred
from the Social Security Administration (SSA) to HHS not earlier than
July 1, 2005, and not later than October 1, 2005. It also required SSA
and HHS to submit a report to the Congress (the Transfer Plan) by April
1, 2004, providing a plan for the transfer of this responsibility. GAO
was mandated to evaluate that plan and report to the Congress, which it
did in GAO-05-45.
Following release of that report, GAO was asked to monitor the transfer
of the appeals workload and update the Congress. This draft
correspondence recognizes, on page 2, that "...the implementation of
the plan to transfer the Medicare appeals function from SSA to HHS is
at a critical and dynamic stage. This report provides a snapshot of
that progress as of May 26, 2005.
While HHS generally agrees with most of the statements made by GAO in
the slide presentation that constitutes the draft correspondence, there
are several issues that HHS would like to clarify or update, and would
also like to supply additional information regarding steps taken since
the snapshot was taken on May 26, 2005.
Video Teleconferencing:
The MMA mandated that the Transfer Plan explore the feasibility of
conducting ALJ hearings using teleconference or videoconference
technologies. HHS will fulfill this obligation by improving the
hearings process and expanding access to ALJs through the use of video
teleconference (VTC) hearings. The use of VTC hearings will allow
prompt hearings in order to ensure that decisions will be rendered
within the Medicare, Medicaid, and SCHIP Benefits Improvement and
Protection Act of 2000 (BIPA)-mandated timeframe, and create more
access points than SSA currently provides through its offices. HHS is
achieving these improvements in access through office locations
established as "coordinating hubs" or field offices, rather than
through Department-owned buildings to which appellants must travel.
This technology is now commonly used in the medical community with
patients (telemedicine), and in courtrooms throughout the country. SSA
has introduced VTC hearings successfully and has been expanding their
use each year. VTC equipment is widely available and used extensively
throughout the United States. It is prevalent not only in the legal
realm, but also in the healthcare arena and other areas where spanning
geographic distance to meet the needs of customers (e.g. appellants,
patients) is critical and time-sensitive. The very positive feedback
from SSA on their implementation of VTC supports user acceptance of VTC
for use in hearings.
In addition, VTC equipment is widely available in law firms. According
to the 1999 Report from the Office of Inspector General
(http://oi2.hhs.gov/oei/reports/oei-04-97-00160.pdf) the appeals
process is no longer a process predominately for individual
beneficiaries, but rather a provider/supplier dominated process. This
report states that in excess of 90 percent of all appellants are
providers, suppliers, or hospitals, many of whom use private law firms
that already have their own VTC equipment.
The VTC equipment for each of the HHS, Office of Medicare Hearings and
Appeals (OMHA) hearing rooms has been specified and ordered. Delivery
and installation is on time for hearings.
HHS has also identified VTC resources available from SSA, HHS Regional
Offices, other organizations, and private vendors and is establishing
relationships and procedures for using these VTC resources. HHS and SSA
are developing a Memorandum of Understanding giving HHS access to 69 of
SSA's VTC sites for an SSA estimate of approximately 9,000 hearings a
year. SSA has continued to assure HHS that they wish to cooperate in
supporting availability of their VTC equipment, in compliance with the
mandates of the MMA. In addition, HHS has conducted test-hearing
scheduling and is developing a database of all VTC sites for use in
scheduling hearings. HHS anticipates continuing to build the VTC
network of resources over the first year of operation, expanding access
to appellants even further.
HHS privacy officials were involved in the specifications for the VTC
equipment and the encryption for compliance with the Privacy Act.
Additionally, HHS' information technology and VTC experts were involved
in the preparation of the specifications for the equipment with privacy
as an essential criterion. HHS has been in contact with VTC providers
and has verified that VTC services are regularly used for depositions
and other confidential matters and that the VTC providers have private
rooms and secured networks to assure privacy.
The VTC equipment includes not only the capability to transmit the
picture and sound of the video teleconference, but also state-of-the-
art digital audio recording capability, with automatic back up
recordings of the hearings. This surpasses the past practice of audio
recordings, which were frequently not backed up and often lost or
misplaced, causing a significant remand and rework workload.
HHS believes that access to ALJ hearings for appellants will be as good
or better than the current access under SSA. Not only will access be
available via VTC at SSA VTC sites, OMHA offices, HHS regional offices,
and many other locations throughout the country, but also beneficiaries
will continue to be able to request, and in appropriate circumstances,
obtain in-person hearings.
Finally, HHS would like to take this opportunity to correct several
items that it believes to be factually or legally inaccurate, as
follows:
GAO mentions in two places in the draft correspondence (pages 3 and 31)
that "HHS has not provided convincing evidence that appellants
generally consider VTC hearings an adequate substitute for in person
hearings."
Although this statement is intended to convey GAO's opinion regarding
HHS' efforts to plan for the transition of the ALJ function, HHS
believes that this opinion is based on a faulty premise. Pursuant to
the Social Security Act (the Act) at section 1869(b)(1)(A), parties are
entitled to a hearing "to the same extent as is provided in section
205(b)." The Act does not include any specific requirements regarding
the form the hearing must take. Rather, the only requirement is that
the hearing process comport with due process. Thus, HHS is required
only to show that VTC hearings are consistent with the requirements of
due process. As HHS has previously advised, in many cases a hearing
conducted by telephone or VTC will comport fully with the requirements
of due process. Furthermore, ALJs, with the concurrence of the Managing
Field Office ALJ, are permitted to schedule an in-person hearing when
there are special or extraordinary circumstances that would make a VTC
hearing inappropriate, or when an appellant shows good cause to grant a
request for an in-person hearing. Thus, HHS believes that the use of
VTC hearings is consistent with the requirements of due process.
On page 15 of the draft correspondence, GAO includes the following
statement regarding the hearing procedures that are applied by the SSA
ALJs currently responsible for hearing Medicare appeals: "At this
level, appellants have the right to an in-person hearing."
HHS believes that this statement is legally inaccurate. Although all
appellants have the right to a hearing, the Act does not specify the
form that the hearing must take. Accordingly, as was previously noted,
HHS believes that it may be appropriate in many cases for hearings to
be held by telephone or VTC. HHS believes that the statement by GAO is
intended to indicate that under existing SSA regulations, all parties
may request an in-person hearing, and that such a request will
constitute good cause for scheduling an in-person hearing.
Waiver of 90-day Timeframe:
Although the Interim Final Rule with Comment Period (IFC) (70 FR 11420)
provided that appellants may request an in-person hearing, it
inadvertently indicated that the request would constitute a waiver of
the 90-day BIPA timeframe for conducting the hearing and rendering a
decision. A Correcting Amendment has been drafted and will be published
in the Federal Register prior to the opening of the HHS ALJ offices
clarifying that the mere request by a party for an in-person hearing
does not relieve the AU of the 90-day hearing and decision-making
timeframe requirement. Rather, waiver of the 90-day hearing and
decision-making timeframe requirement results only after the AU has
granted the request for an in-person hearing. Although the timeframe
will be waived, HHS will make every effort to process these appeals in
the most expeditious manner possible.
Hiring and Staffing:
Hiring is proceeding on a daily basis to staff the OMHA Field Offices.
The administrative staff and half of the ALJs and their direct reports
will be hired and training began on June 13, 2005. The remaining half
of the ALJs and their direct reports will be hired and will begin
training toward the end of July. This two-phased hiring plan is based
on the commitment from SSA that HHS will not inherit a pending workload
from SSA. The workload therefore will steadily increase from zero
percent of full workload the morning of July 1, 2005, to 100 percent of
the workload 90 days later (September 30, 2005), which is one full
cycle for processing cases. During the first half of the 90-day cycle
of case processing, only half of the staff are necessary to process the
cases received. Therefore, the second half of the staff will be trained
and begin hearing cases approximately half way through the 90-day
cycle. This two-phase hiring plan allows for staff to be trained, be
available to hear cases, and appropriately uses taxpayer dollars to
align the hiring of staff with the need to begin hearing cases.
The attached chart depicts the hiring results as of June 14, 2005.
Based on these staffing numbers, HHS is confident that it has a
sufficient number of ALJs to manage the Medicare hearings workload.
Based on the information provided by SSA in its Caseload Analysis
Report (CAR), in fiscal year (FY) 2003, SSA was able to dispose of
78,005 docketed items, of which 48,971 were Medicare hearings, using
46.18 ALJs. In FY 2004, SSA disposed of 64,082 docketed items, of which
31,223 were Medicare hearings, using 37.55 ALJs. Based on these
numbers, HHS clearly can accommodate the anticipated case receipts with
its workforce of ALJs.
As mentioned in an earlier submission, HHS has hired an Acting Chief
Judge to oversee the implementation of the Transfer Plan. Judge Perry
Rhew was appointed to be the Managing Administrative Law Judge for the
Cleveland OMHA in March 2005. On April 22, 2005, the Office of the
Assistant Secretary for Administration and Management appointed Judge
Rhew to be the Acting Chief Administrative Law Judge of the OMHA. This
appointment conveyed all the rights, authority, and responsibility of
the Chief Judge to Judge Rhew.
Since his appointment, Judge Rhew has led the selection and hiring of
the ALJs and other staff for OMHA, directed policy development for the
appeals process, and overseen the finalization of training plans and
facilities development. Prior to Judge Rhew joining HHS, he was the
Acting Chief Administrative Law Judge for the SSA Cleveland Office of
Hearings and Appeals, where he streamlined operations and made changes
that made the office more efficient, increased overall productivity,
and personally mentored six new judges.
Judge Rhew is a dynamic, experienced leader, and is a veteran of the
Medicare appeals process at SSA. He was selected to be the Acting Chief
ALJ because of his talent at hiring and leading judges and staff, his
passion for ensuring a fair and timely hearing process, and his
excitement about the opportunities for efficiencies in the Medicare
appeals system. Judge Rhew has the full confidence of Secretary Leavitt
and the entire HHS leadership.
Training:
The training has been designed as a 5-week program, with all staff,
including judges, receiving 3 weeks of training. New judges receive an
additional 2 weeks of training designed exclusively for HHS' new judges
by the National Judicial College. The first half of the staff will
receive 2 weeks of training from June 13 to June 24, 2005, and the
second half of the staff will receive the same 2 weeks of training from
July 24 to August 5, 2005. All staff will receive 1 week of training
from August 8 to August 12, 2005. In addition, new judges will receive
2 weeks of training at the National Judicial College from July 11 to
July 22, 2005.
Training specific to Medicare law will be provided for 3 days at both
sessions and will include the following topics:
Medicare entitlement and enrollment;
Medicare coverage process;
Payment of claims:
Overview of the appeals process - Parts A and B:
Limitations on judicial review in the Medicare program: Concepts of
exhaustion and "channeling"
The Medicare Advantage Program (Part C):
Part D:
In addition, other training is provided encompassing an entire week of
training specific to the Medicare appeals workload, including:
Appeal case flow walk-through:
Appeal field office workflow process:
Consolidation and aggregation:
Case management:
Procedural issues:
Amount in controversy:
Use of expert witnesses:
Substantive issues:
Death of the beneficiary:
Lessons from the SSA experience:
The merits - issues SSA commonly encountered:
Part A - hospital, skilled nursing facility, home health care, partial
hospitalization:
Part B - assignment, aggregation, Durable Medical Equipment, equipment,
overpayment:
Multiple beneficiary cases:
Medicare Advantage:
BIPA:
Conduct of Medicare hearing:
Medicare decision writing:
VTC tools and management:
In addition to the above training, new judges will receive 2 weeks of
training designed exclusively for Medicare ALJs, including mock
Medicare hearings using VTC.
The training curriculum is designed to be Medicare-specific and will
enable the Medicare ALJs to render fair, impartial, and informed
decisions. As is the case with any Federal judge, if an issue arises in
which the Medicare ALJ is not an expert, he or she will quickly acquire
the knowledge necessary to hear the case and render a decision, as
judges do by training and education.
Medicare Appeals System (MAS):
The Medicare Appeals System (MAS) as planned will eventually encompass
all five levels of appeals, beginning with the Affiliated Contractors
and ending at the Federal District Court level. However, for cost and
efficiency reasons, the MAS is being developed and deployed
incrementally. MAS testing took place from April 11 through April 22,
2005, prior to the Qualified Independent Contractor (QIC)
implementation. The MAS was fully functioning when the QICs began
processing cases on May 1, 2005, consistent with the requirement of the
BIPA statute.
The MAS will be available for appeals to the new HHS ALJ hearing
offices when they begin hearing appeals on July 1, 2005. Although there
has never been a commitment to implement the MAS at the 55 contractors
that conduct first level appeals, each of whom has its own data system,
as planned, CMS is looking into the feasibility and cost-effectiveness
of making the MAS available to these contractors under a future
increment, most likely in conjunction with implementation of the
Medicare contractor reform initiative.
Spending for FY 2004 and FY 2005:
There are two primary reasons why HHS spent only $59.9 million of the
$77 million appropriated in FY 2004 for the full Medicare appeals
process.
First, at the time of the appropriation, $11 million of the $77 million
was appropriated to CMS for QIC implementation (BIPA section 521). This
amount assumed phase-in of Part A and Part B QICs would begin in FY
2004. HHS and CMS subsequently made a business decision to align the
phase-in of QICs with the planned transfer of the appeals function from
SSA to HHS on July 1, 2005. Had both Part A and Part B QICs been in
place at the time OMHA become operational on July 1, the ability of the
new OMHA to hear cases forwarded from QICs within the BIPA time frames
would have been comprised. Thus, HHS and CMS made a business decision
to gradually phase-in QICs, with Part A QICs (the smaller workload)
becoming operational on May 1, 2005, and Part B QICs becoming
operational January 1, 2006. Since OMHA will be gradually ramping up to
full capacity from July 1 to October 1, 2005, this phased-in QIC
approach ensures that OMHA is positioned to accommodate the cases
forwarded by Part A QICs within the 90-day BIPA time frame. As a result
of this business decision, CMS only spent $2 million of the $11 million
for QIC implementation in FY 2004.
Second, at the time of the appropriation, $3 million of the $77 million
was appropriated to CMS for local coverage decision and national
coverage decision appeals, per section 522 of BIPA. This caseload has
yet to materialize at the levels originally assumed, and as such, the
appropriated money was not spent for this activity.
HHS would also like to clarify why in FY 2004 it only reimbursed SSA
$37.5 million of the $50 million appropriated for the ALJ-level of
Medicare appeals. In FY 2004, HHS and SSA operated under a Memorandum
of Understanding (MOU), whereby HHS would reimburse SSA $1,000 per unit
of service. Unit of Service was defined in the MOU as "the adjudication
of request(s) for hearing on one or more claims involving one or more
beneficiaries that are properly disposed of by a single decision or
dismissal. Request(s) for hearing may involve multiple units of service
and be assigned multiple docket numbers only when a beneficiary's claim
or claims require unique findings of fact and/or application of the law
to fact, e.g., individual medical necessity determinations." Through
its diligent enforcement of this unit of service reimbursement
methodology, HHS reimbursed SSA $12.5 million less than the $50 million
appropriated. A portion of this $12.5 million, $4.3 million, was used
to advance Medicare appeals activities within HHS, most notably,
critical start-up funding for the new OMHA. The remainder, $8.2
million, was used by CMS for one of its most mission-critical
functions, claims processing; actual claims in FY 2004 exceeded
estimates assumed in the appropriation by 32 million. It should be
emphasized that none of this $12.5 million lapsed.
Finally, HHS would like to make a clarification regarding the spending
table found on page 54 of the GAO draft correspondence. Nearly all of
the funding on this table is CMS spending (not HHS as the title
indicates), with the exception of the ALJ Appeals line. The ALJ Appeals
line -funds used to reimburse SSA for processing ALJ appeals prior to
the transfer-has different sources of funding for FY 2004 and FY 2005.
In FY 2004, the $50 million was appropriated to CMS, who then entered
into an MOU to reimburse SSA for this work. However, in FY 2005,
Congress appropriated $49.6 million (post-recission) for this same
purpose within HHS's General Departmental Management (GDM)
appropriation, not CMS's appropriation, as the table on page 54 would
imply.
Pending SSA Workload:
Consistent with the Transfer Plan, SSA has committed to completing all
appeals received by it prior to July 1, 2005, with no backlog.
Other Clarifications:
HHS would like to make the following clarifications to statements in
the draft correspondence:
On page 20 of the draft correspondence, GAO states that, "CMS published
procedures and guidance on implementing statutory changes to the
appeals process resulting from both BIPA and MM.4 in an Interim Final
Rule with Comment Period on March 8, 2005."
HHS would like to note that although the interim final rule with
comment period (IFC) appeared in the Federal Register on March 8, 2005,
the IFC was actually published on March 1, 2005.
Also on page 20 of the draft correspondence, the statement is made that
the IFC includes the following change: "Replacing the claims
administration contractors who resolve the appeals at the second level
of the process with a new type of contractor called qualified
independent contractors(QIC) ..."
At the present time, in the Part B appeals process, second level
appeals are handled by a carrier fair hearing officer. Currently, there
is no carrier fair hearing under Part A. The new QICs will be
responsible for resolving appeals at the second level of the process
under Part A and Part B.
On page 21 of the draft correspondence, GAO states that: "QICs will
have to resolve appeals in 60 days, compared to the 120-day
requirementfor the claims administration contractors."
HHS believes the reference to claims administration contractors is
inaccurate and potentially confusing. The current 120-day requirement
applies to carrier fair hearing officers under the existing Part B
appeals process.
Conclusion:
HHS appreciates GAO's thoughtful consideration of the progress made in
preparing to implement the transfer of the Medicare appeals function
from SSA to HHS and welcomes the opportunity to review and comment on
the resultant draft correspondence. As the slides noted, the
implementation of the Transfer Plan is at a critical and dynamic stage,
and HHS is pleased to be able to offer this additional information and
updates.
HHS Office of Medicare Hearings & Appeals (OMHA) Hiring Status as of
Tuesday evening, June 14:
Note: Hiring statistics are subject to change on a daily basis:
[See PDF for image]
[End of table]
[End of section]
(290423):
FOOTNOTES
[1] See GAO, Medicare: Incomplete Plan to Transfer Appeals Workload
from SSA to HHS Threatens Service to Appellants, GAO-05-45 (Washington,
D.C.: Oct. 4, 2004).
[2] Social Security Act Amendments of 1939, ch. 666, sec. 201, §
205(b), 53 Stat. 1360, 1368 (codified as amended at 42 U.S.C. § 405(b)
(2000).
[3] 20 C.F.R. §§ 404.929 and 404.936 (2002).
[4] 68 Fed. Reg. 5,210, 5,218 (codified at 20 C.F.R. §§ 404.929 and
404.936(d) and (e) (2004)).