[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]




   MEDICARE MISMANAGEMENT PART II: EXPLORING MEDICARE APPEALS REFORM

=======================================================================

                                HEARING

                               before the

                     SUBCOMMITTEE ON ENERGY POLICY,
                      HEALTH CARE AND ENTITLEMENTS

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 10, 2014

                               __________

                           Serial No. 113-148

                               __________

Printed for the use of the Committee on Oversight and Government Reform


         Available via the World Wide Web: http://www.fdsys.gov
                      http://www.house.gov/reform
                      
                      
   
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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee       CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona               GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania         JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee          MATTHEW A. CARTWRIGHT, 
TREY GOWDY, South Carolina               Pennsylvania
BLAKE FARENTHOLD, Texas              TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington             ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming           DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia                 PETER WELCH, Vermont
THOMAS MASSIE, Kentucky              TONY CARDENAS, California
DOUG COLLINS, Georgia                STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina         MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan        Vacancy
RON DeSANTIS, Florida

                   Lawrence J. Brady, Staff Director
                John D. Cuaderes, Deputy Staff Director
                    Stephen Castor, General Counsel
                       Linda A. Good, Chief Clerk
                 David Rapallo, Minority Staff Director

      Subcommittee on Energy Policy, Health Care and Entitlements

                   JAMES LANKFORD, Oklahoma, Chairman
PATRICK T. McHENRY, North Carolina   JACKIE SPEIER, California, Ranking 
PAUL GOSAR, Arizona                      Minority Member
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
JASON CHAFFETZ, Utah                     Columbia
TIM WALBERG, Michigan                JIM COOPER, Tennessee
PATRICK MEEHAN, Pennsylvania         MATTHEW CARTWRIGHT, Pennsylvania
SCOTT DesJARLAIS, Tennessee          TAMMY DUCKWORTH, Illinois
BLAKE FARENTHOLD, Texas              DANNY K. DAVIS, Illinois
DOC HASTINGS, Washington             TONY CARDENAS, California
ROB WOODALL, Georgia                 STEVEN A. HORSFORD, Nevada
THOMAS MASSIE, Kentucky              MICHELLE LUJAN GRISHAM, New Mexico


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 10, 2014....................................     1

                               WITNESSES

Ms. Nancy J. Griswold, Chief Administrative Law Judge, Office of 
  Medicare Hearings and Appeals, U.S. Department of Health and 
  Human Services
    Oral Statement...............................................     4
    Written Statement............................................     7

                                APPENDIX

Office of Medicare hearings and appeals chart, submitted by 
  Chairman Lankford..............................................    38
Questions for the record answered by Judge Griswold..............    40
Oct. 28, 2014 letter to Rep. Maloney from Judge Griswold.........    41
July 9, 2014 letter to Rep. Lankford from Proper Payments........    42
Statement for the record by OIG of HHS...........................    45

 
   MEDICARE MISMANAGEMENT PART II: EXPLORING MEDICARE APPEALS REFORM

                              ----------                              


                        Thursday, July 10, 2014

                  House of Representatives,
   Subcommittee on Energy Policy, Health Care, and 
                                      Entitlements,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 2:13 p.m., in 
Room 2154, Rayburn House Office Building, Hon. James Lankford 
[chairman of the subcommittee] presiding.
    Present: Representatives Lankford, Gosar, Woodall, Massie, 
Meadows, Speier, Norton, Duckworth and Lujan Grisham.
    Staff Present: Molly Boyl, Deputy General Counsel and 
Parliamentarian; Katelyn E. Christ, Professional Staff Member; 
Linda Good, Chief Clerk; Meinan Goto, Professional Staff 
Member; Mark D. Marin, Deputy Staff Director for Oversight; 
Emily Martin, Counsel; Laura L. Rush, Deputy Chief Clerk; 
Andrew Shult, Deputy Digital Director; Sarah Vance, Assistant 
Clerk; Jaron Bourke, Minority Director of Administration; 
Aryele Bradford, Minority Press Secretary; Una Lee, Minority 
Counsel; and Michael Wilkins, Minority Staff Assistant.
    Mr. Lankford. Good afternoon. We apologize for a little bit 
of delay. We'll have additional delays in the moments ahead. 
Ms. Speier and I both were on the floor doing some debate on 
the current bill that's on the floor, appropriations bill. The 
votes, we understand, will be called for that in the next 15 to 
20 minutes. So what I'm going to try to accomplish is an 
opportunity for us to be able to go through some of our opening 
statements, get us established. When votes are called, we'll 
recess for a short period of time, then we'll come back and 
finish up with questions.
    This is the Energy Policy, Health Care and Entitlements 
hearing on Medicare and Mismanagement Part II: Exploring 
Medicare Appeals Reform. The chair is authorized to declare a 
recess of the committee at any time.
    I'd like to begin this hearing by stating the Oversight 
Committee mission statement. We exist to secure two fundamental 
principles: First, that Americans have the right to know that 
the money Washington takes from them is well spent; second, 
Americans deserve an efficient, effective government that works 
for them. Our duty on the Oversight and Government Reform 
Committee is to protect these rights.
    Our solemn responsibility is to hold government accountable 
to taxpayers, because taxpayers have the right to know what 
they get from their government. We will work tirelessly in 
partnership with citizen watchdogs to deliver the facts to the 
American people and bring genuine reform to the Federal 
bureaucracy. This is the mission of the Oversight and 
Government Reform Committee.
    This conversation is, as I mentioned already, the second 
part of a two-part conversation about how things are going. We 
have multiple different entities that have a significant 
backup. They're waiting through the appeals process, some of 
them for years in the appeals process, healthcare providers, 
hospitals, individuals that do not have a large cash flow and 
individuals and businesses that do.
    So the issue today is why does that exist, how do we 
actually resolve this, what are the fixes that are needed 
legislatively, and what can we take care of right now?
    I'd like to yield additional time to Mr. Meadows from North 
Carolina, who has been very, very involved in this process as 
well.
    Mr. Meadows. Thank you, Mr. Chairman, and thank you for 
your leadership on this particular issue. And really this comes 
down and boils down to people, and what we have to do is make 
sure that as government agencies that we do the very best we 
can to go after waste, fraud and abuse, which the chairman has 
so eloquently articulated, yet at the same time make sure that 
the rule of law, in fairness to everyone, is upheld.
    And right now I think that there is great question--and not 
singling you out, Ms. Griswold, because I've had some great 
conversations with really folks within the ALJ. There seems to 
be a very compassionate desire to fix the problem, and so 
that's what we're looking for here today.
    My other concern, though, and I think the concern of the 
American people, is this whole process in terms of when we go 
after waste, fraud and abuse, if we cast such a wide net, then 
we're taking the decisionmaking away from doctors, healthcare 
providers, hospitals, many people who make their decisions who 
are trained, who go to years of training to do that, and we're 
transferring that decisionmaking capability because of 
reimbursements to--actually to a bureaucrat.
    For me, I have a lot more trust in the nurse or the doctor 
that cares for me than I do somebody that works here in 
Washington, D.C. I think that polls would show that to be the 
fact as well. So what I'm looking for specifically, and it will 
be difficult, I know, because you're all part of an agency, but 
there's this wall of separation that somehow goes up that the 
American people don't understand, that they all see you part of 
HHS or part of CMS, and yet you have a wall, CMS has a wall.
    What I need to do is have as much finger pointing as 
possible to say this is what will solve it, knowing that I'm 
not asking you to throw anybody under the bus. As the chairman 
pointed out, we're looking for legislative fix, for 
appropriations that need to be done so that we can help this to 
quit being a problem, and so we can obey the law the way that 
it is written.
    And so I thank the chairman, and I yield back.
    Mr. Lankford. Thank you, Mr. Meadows.
    I would like to ask unanimous consent to conserve for the 
record a chart giving disposition outcome rates that was given 
to us by the Office of Medicare Hearings and Appeals just last 
night. I'd like to be able to add this to the record and be 
able to share with all individuals that are here as well.
    I'd like to now recognize the distinguished ranking member, 
the gentlelady from California Ms. Speier, for her opening 
statement.
    Ms. Speier. Mr. Chairman, thank you for holding the 
hearing, and I want to thank the Chief Judge Griswold for 
appearing before us today on this important issue.
    You know, I think we can all agree that Medicare providers 
are entitled to have their claims administered fairly, 
efficiently and without undue delay so that they can focus on 
their core mission of providing care to our Nation's seniors. 
If they are billing incorrectly, they deserve to know sooner 
than later. Unfortunately, that is not the situation facing 
providers today.
    Medicare providers appealing payment decisions made by 
contractors are waiting on average 387 days to have their 
claims adjudicated by the Office of Medicare Hearings and 
Appeals. For providers submitting new claims, the wait could be 
as long as 28 months just to have an appeal assigned to an ALJ. 
The current claims backlog at OMHA is unacceptable and 
unsustainable. OMHA must make significant changes in how it 
does business. I look forward to hearing from the chief judge 
about the initiatives that OMHA is implementing to approve 
efficiency and alleviate the backlog.
    But I also want to remind my colleagues that the claims 
backlog is a problem that Congress created. Congress has 
required CMS appropriately to be increasingly vigilant in 
detecting and reducing the amount of waste, fraud and abuse in 
the $600 billion Medicare program that covers 51 million 
beneficiaries. This emphasis on program integrity is critical 
both to the health of our Nation's seniors and to the 
protection of our taxpayer dollars, but this increased scrutiny 
has not been coupled with additional funds to address the 
influx of claims and appeals that have resulted.
    With the Medicare Prescription Drug Act, Congress created 
the Medicare Administrative Contractors, the Zone Program 
Integrity Contractors, and the Recovery Auditor Contractors 
pilot program. In 2010, the RAC program was made permanent and 
expanded nationwide. All of these contractors conduct audits of 
Medicare providers. Each of these contractors have increased 
the number of claims being audited for payment accuracy in 
recent years. According to a 2013 GAO study, the volume of 
contractor postpayment claims reviews increased by 55 percent 
between 2011 and 2012.
    More audits means, obviously, more appeals. That is an 
inevitable result of the additional program integrity functions 
that we here in Congress have asked CMS to implement. Yet 
Congress has not provided OMHA with more funding for more 
judges to adjudicate claims, so when we wring our hands about 
the number of days that these providers have to wait, we have 
to wring our hands and look directly at ourselves.
    Despite the sixfold increase in the number of appeals since 
2006, the number of ALJs at OMHA has remained relatively 
constant. In 2007, OMHA received 20,000 RAC claims. In 2013, 
OMHA received 192,000 RAC claims, yet received no additional 
funding to handle this workload. I joined a number of my 
colleagues on both sides of the aisle in sending a letter to 
the Secretary of HHS citing concerns about the RAC program and 
expressing the need for reform.
    But it's also important to note that RACs have led to the 
exposure of many questionable billing practices, such as 
billing for hospital readmissions on the same day with the same 
diagnosis; durable medical equipment items delivered, but never 
ordered by a physician; hospital claims coded with illness a 
patient did not possess; and excessive units of medication 
ordered, especially where the billed dose would be harmful or 
lethal to the patient who received it.
    We may need to consider reforms to the RAC program that 
reduces the administrative burden of RAC audits on providers, 
but we must also ensure that we preserve the central program 
integrity functions of the RACs who performed the critically 
important, congressionally mandated function of reducing 
improper payments in the Medicare program.
    Finally, an important part of reducing the burden on 
providers is ensuring that appeals from adverse RAC 
determinations are adjudicated in a timely manner. Congress 
must do its part by ensuring that OMHA's budget request is 
fully funded. We have to give OMHA the resources commensurate 
with the workload that we have asked them to perform.
    And with that, I yield back.
    Mr. Lankford. Members will have a requisite 7 days to 
submit additional statements if they choose to add statements 
for the record.
    Ms. Griswold, you are the sole individual in this hearing 
today, and we are grateful that you are here. Pursuant to all 
committee rules, all witnesses are sworn in before they 
testify. If you'd please stand, raise your right hand.
    Do you solemnly swear or affirm the testimony you are about 
to give will be the truth, the whole truth and nothing but the 
truth, so help you God?
    Ms. Griswold. I do.
    Mr. Lankford. Thank you.
    Let the record reflect the witness answered in the 
affirmative.
    You, of course, may be seated.
    Ms. Griswold is the Chief Administrative Judge at the 
Department of Health and Human Services Office of Medicare 
Hearings and Appeals, and we are very grateful that you are 
here to be able to have this conversation. To allow time for 
discussion, we'd ask you to limit your oral testimony to 5 
minutes. Of course, your written testimony we've already 
received will be a part of the permanent record as well. We 
have not called votes yet, so we're not in a hurry at this 
point, so I'm grateful to be able to receive your testimony. 
You may begin.

STATEMENT OF NANCY J. GRISWOLD, CHIEF ADMINISTRATIVE LAW JUDGE, 
  OFFICE OF MEDICARE HEARINGS AND APPEALS, U.S. DEPARTMENT OF 
                   HEALTH AND HUMAN SERVICES

    Ms. Griswold. Chairman Lankford, Ranking Member Speier and 
members of the subcommittee, I want to thank you for the 
invitation to discuss the workloads of the Office of Medicare 
Hearings and Appeals, or what we call OMHA. OMHA administers 
the nationwide Medicare administrative law judge hearing 
program and is responsible for conducting the third level of 
review of Medicare appeals. In order to ensure that OMHA's 
adjudicators have decisional independence from CMS, OMHA was 
established as a separate agency within the Department of 
Health and Human Services and reports directly to the 
Secretary. Accordingly, we operate under a separate 
appropriation, and we are both functionally and physically 
separate from CMS.
    Between fiscal years '11 and '13, what had previously been 
a gradual upward trend in appeal receipt levels took an 
unexpectedly sharp turn, and OMHA experienced an overall 545 
percent increase in our appeals. The rise in the number of 
appeals resulted both from increases in the number of 
beneficiaries utilizing covered services, and also from the 
expansion of OMHA's responsibility to include the adjudication 
of appeals resulting from new audit workloads undertaken by 
CMS, including the nationwide implementation of the Recovery 
Audit Program. There have also been increases in Medicaid State 
agency appeals.
    We are pleased that OMHA's 2014 enacted funding level has 
allowed for the hiring of 7 additional teams, bringing OMHA's 
adjudication capacity to 72,000 appeals per year; however, this 
capacity pales in comparison to the adjudication workload. In 
fiscal year '13 alone, OMHA received 384,151 appeals; and in 
fiscal year '14, receipt levels through July 1 are 
approximately 509,124 appeals.
    As a result, OMHA had over 800,000 appeals pending on July 
1 of 2014. Although ALJ team productivity has more than doubled 
from fiscal year '09 through '13, OMHA has been receiving 
approximately 1 year's worth of appeals every 4 to 6 weeks, 
driving adjudication time frames to their current high of 387 
days.
    OMHA recognizes the need to adjudicate appeals with greater 
efficiency. By the end of the fiscal year, we will release a 
manual which utilizes best practices to standardize our 
business process. We are using information technology to 
convert our process from paper to electronic, an effort which 
will culminate in its first release in the summer of 2015.
    We have also developed a template system which simplifies 
the work of our staff by providing standardized fillable 
formats for routine word processing. OMHA also proposed and 
former Secretary Sebelius established a departmental 
interagency work group, which conducted a thorough review of 
the appeals process and developed additional initiatives that 
both OMHA and CMS are currently implementing.
    On June 30, OMHA posted on its Web site two new options for 
appellants. The first allows appellants to have their claims 
adjudicated using statistical sampling and extrapolation 
methods. The second option for appellants uses alternative 
dispute resolution techniques during a facilitated settlement 
conference.
    Finally, OMHA has redirected the efforts of its senior 
attorneys to assist in the prioritization of beneficiary 
appeals. Any beneficiary who believes their case is not 
receiving priority consideration at OMHA may contact us 
directly at [email protected] or at our toll-free 
number, 855-556-8475.
    Although OMHA is functionally and organizationally 
separate, I can provide a general outline of initiatives that 
are being undertaken at CMS. These include beginning global 
settlement discussions involving similarly situated appellants, 
requiring the new recovery auditors to offer providers and 
suppliers a 30-day discussion period, allowing for recovery 
audit payment only after a qualified independent contractor has 
determined that an overpayment exists, issuing a proposed rule 
requiring prior authorization for certain durable medical 
equipment, and requiring prior authorization for two particular 
Part B services under CMS' demonstration authority.
    Although the Department is working to address the backlog 
and the number of prospective appeals within current resources 
and authorities, the initiatives that I've discussed today will 
be insufficient to close the gap between workload and resources 
at OMHA. Although all workloads at OMHA have experienced rapid 
growth, a significant portion of the increase is a consequence 
of the Department's effort to implement legislation designed to 
combat Medicare fraud and to reduce improper payments.
    The Department is committed to crafting solutions which 
will bring these efforts and the resulting appeal workload into 
balance. We look forward to working with this committee and 
with our stakeholders to develop and implement these solutions.
    I thank you for your time and concern.
    
    [Prepared statement of Ms. Griswold follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Mr. Lankford. The chair recognizes Dr. Gosar for 
questioning.
    Mr. Gosar. Thank you, Mr. Chairman.
    Ms. Griswold, can you walk us through the five levels of 
Medicare appeals process?
    Ms. Griswold. Yes. The first two levels are conducted at 
CMS. They are administered by CMS and CMS' contractors. The 
third level is at the Office of Medicare Hearings and Appeals 
and is conducted by administrative law judges. The fourth level 
is at the Medicare Appeals Council, which is part of the 
Departmental Appeals Board and is also a separate agency within 
Health and Human Services. And the final level is with the 
Federal district courts.
    Mr. Gosar. Gotcha.
    Can you describe the different types of appeals heard by 
the ALJs?
    Ms. Griswold. Yes. We hear both Part A and Part B appeals 
under Medicare, and we also hear the Part D appeals. This was 
part of our original charge, the prescription drug appeals. We 
hear IRMAA appeals. We hear appeals on entitlements. We also 
hear the Part C Medicare Advantage appeals.
    Mr. Gosar. In percentages of those, what do you hear more 
often, most often in those appeals for ALJs?
    Ms. Griswold. Well, it varies. In recent years we have 
heard a significant number of appeals under Part A, which are 
the acute care hospital--the acute hospital appeals.
    Mr. Gosar. And does that happen, would you say, 30, 40, 50 
percent of the time in the ALJ workload?
    Ms. Griswold. I can get you that number. Hold on just 1 
minute.
    Mr. Gosar. I mean, trends really help you out trying to 
figure out what the problem--you know, being a healthcare 
provider, I mean, you always look at trends about what's 
happening, so that gives you kind of a workload basis of which 
to delegate resources to.
    Ms. Griswold. Most of our recovery audit appeals have been 
Part A, and so you can kind of use that as a gauge. In 2014, 
41.2 percent--oh, I'm sorry. I have the wrong number there; 
54.2 percent to date were recovery audit appeals, and those are 
predominantly those Part A appeals.
    Mr. Gosar. Part A.
    So according to HHS Office of Inspector General, in 2010, 
56 percent of the appeals were decided as fully favorable to 
the appellants, a reverse previous lower-level decision. What 
is the current rate?
    Ms. Griswold. All right. And are you asking about the RAC 
decisions, the RAC appeals, or just overall----
    Mr. Gosar. Just overall.
    Ms. Griswold. --overall OTRs? All right.
    In 2014, the fully-favorable OTR rate for the fiscal year 
to date is 19.3 percent.
    Mr. Gosar. Gotcha.
    Now, has OMHA conducted an analysis on what factors are 
really driving this backlog? I mean, you made mentions of three 
of them, but I'd like to be a little bit more specific.
    Ms. Griswold. Yeah. There are a number of things. All of 
our workloads are going up. We attract what we call our 
traditional workload, which is, you know, the Part A/B 
workload. We also have been tracking the RAC workload, and 
we've tracked the dual-eligible or Medicaid and Medicare 
beneficiary workload. All three of those have been going up. 
The traditional workload has been driven largely partly by 
demographics. I mean, there are just more beneficiaries on the 
rolls who are utilizing more services.
    It has also been driven by increases in CMS' audit efforts, 
Zone Program Integrity Contractors' identification of improper 
payments. Anything that results in more denials at lower levels 
is going to result in more appeals at the ALJ level.
    Of course, the Recovery Audit Program is the one that gets 
a lot of attention. It was a new program in 2010, so it was a 
startup, and the increase in receipts in that program was, of 
course, dramatic. That occurred primarily at our level between 
2011 and 2013 is when we saw the largest spikes in that 
workload. We've also seen increases in this dual-eligible 
workload, beneficiaries that are eligible for both Medicare and 
Medicaid, and those workloads have gone up as well.
    Mr. Gosar. I thank you.
    I yield back, Mr. Chairman.
    Mr. Lankford. Ms. Speier and I are going to reserve our 
questions until after the voting time, so the chair would like 
to recognize Mr. Meadows for his questioning.
    Mr. Meadows. Thank you, Mr. Chairman.
    Ms. Griswold, is it not true that the efficiency of your 
adjudicators has actually increased? You're handling more cases 
per adjudicator on an annual basis; is that not true?
    Ms. Griswold. It is true, yes. We're very proud of our----
    Mr. Meadows. All right. So you're actually more efficient 
by 20 percent if you really look at the real numbers, that 
you're adjudicators are actually being a lot more efficient 
than they've ever been before?
    Ms. Griswold. Well, and since 2009, our adjudicators have 
actually doubled their productivity.
    Mr. Meadows. Right. And so if we look at that, this is not 
a problem of an administrative law judge just sitting back 
eating bonbons?
    Ms. Griswold. No.
    Mr. Meadows. Okay. All right.
    Ms. Griswold. We have a very dedicated workforce.
    Mr. Meadows. I think we can both agree on that.
    At this particular point, and you've done your homework, 
you've looked at the previous hearings, would you say an 
estimate under our current rates right now based on the 
estimates of potential backlog of 1 million cases, I guess, was 
in the budget assessment that we got, that that is an 8- to 10-
year backlog to adjudicate them based on current staffing and 
workload efficiency?
    Ms. Griswold. I think if you do the simple math, which is, 
you know----
    Mr. Meadows. I'm a simple guy, so simple math, you know.
    Ms. Griswold. --workforce divided by adjudicators, you 
know, of course that is the number you come up with. It does 
not, however, take into account the efficiencies that we are 
putting in place, the initiatives both at CMS and within our 
pilot programs.
    Mr. Meadows. So granted, you've got the--I saw the guy 
smiling, so he's part of your efficiency thing there. And I see 
that, and so I'm encouraged by that.
    You are familiar with the fact that the law says that 
you're required to have a 90-day turnaround. That's the law. 
That is the law.
    Ms. Griswold. Yes, that is--the statute envisions a 90-day 
processing time.
    Mr. Meadows. Yeah. And you're also familiar with the fact 
that the intent of Congress was to have that 90-day turnaround?
    Ms. Griswold. Yes. I----
    Mr. Meadows. Okay. Because--go ahead.
    Ms. Griswold. No, I was just going to say, I think that's 
part of why OMHA--if you look back at the legislative history, 
that's part of why we were established in the first place was 
to deal with processing delays in Medicare cases that existed 
at Social Security.
    Mr. Meadows. And you are familiar with the fact that you--
because the intent of Congress is that, that there is a law out 
there that authorizes you to take moneys from other trust funds 
to do three things: hire additional administrative law judges, 
provide additional training, and increase the staff of the 
Department Appeals Board, those three things. You are familiar 
with that?
    Ms. Griswold. I think you're talking about the 
reprogramming authority.
    Mr. Meadows. Well, it's Public Law 108-173, subtitle D, if 
your counsel would like to look at it. I mean, I've got a copy 
of it. But with that, even the budget requirement or request 
that you guys have made, I guess, require for additional seven 
units; is that correct?
    Ms. Griswold. Our fiscal year '14 enacted level allows for 
seven additional ALJs.
    Mr. Meadows. So what are we doing on 2015?
    Ms. Griswold. The President's budget----
    Mr. Meadows. Yeah.
    Ms. Griswold. --for 2015 would give us an additional 17 
teams.
    Mr. Meadows. Right. So I've done the simple math based on 
the President's budget and based on where we are, and does that 
get you to 90 days?
    Ms. Griswold. No.
    Mr. Meadows. Okay. Does it get you to less than 3 years? 
The answer is no.
    Ms. Griswold. Well, the initiatives--I want to qualify 
that. If we're talking about given current authorities and 
current funding, then the answer is no.
    Mr. Meadows. Well, your request. It's the President's 
request. So your request, at this particular point how many 
years would somebody have to wait for justice?
    Ms. Griswold. I think it is----
    Mr. Meadows. 5.3 years?
    Ms. Griswold. I think it is impossible at this point to 
really pin down how long they will have to wait.
    Mr. Meadows. Okay.
    Ms. Griswold. We are--you know, we do the math as, I think, 
an outside limit.
    Mr. Meadows. All right. Well, let me close with this, then: 
How many businesses have to go out of business before we start 
abiding by the law?
    Ms. Griswold. The 90-day timeframe that's envisioned by 
Congress----
    Mr. Meadows. Ninety-day law. It is law. I can give you a 
copy. Ninety-day law.
    Ms. Griswold. I also have to point out, and it is in the 
statute, we recognize that, there is, however, a safety valve 
in that statute as well, which I need to point out, which is 
the right to escalate claims. And I think that also 
envisioned----
    Mr. Meadows. So we just moved the 10-year backlog up to 
number four or number five? That won't work either. I mean, 
I've looked at their budgets.
    Ms. Griswold. That is what the statute envisions.
    Mr. Meadows. Okay.
    Ms. Griswold. The interesting thing in this, though, is 
that people have chosen not to escalate. This year we had 152 
requests to date, which I believe indicates that providers and 
suppliers are still finding value in our ALJ hearing process 
and choose to remain in the queue.
    Mr. Meadows. So your recommendation is for all those that 
are watching here today to escalate their claims if they're in 
this 10-year backlog? I can't imagine you would say that.
    Ms. Griswold. No, it is an option for them.
    Mr. Meadows. Okay. All right.
    I yield back. I thank the patience of the chair.
    Mr. Lankford. Ms. Griswold, we're going to take a recess. 
The votes have been called, and so we're headed that direction, 
and we will recess until the conclusion of the votes. The 
votes, I would estimate, are going to take somewhere around 30 
minutes, maybe a little bit longer to be able to go through, 
and then we will reconvene at that time.
    Ms. Griswold. Great.
    [recess]
    Mr. Lankford. I apologize for the delay there with the 
votes. We do not expect votes to interrupt us. Since we're 
voting about--9 o'clock is our next vote series. If we're still 
meeting in our hearing at that time, this would be not a good 
sign. So we don't anticipate that as well. But I do apologize, 
that 30-minute delay ended up being about an hour and 20 or so 
before it was all said and done.
    We will go back and forth here to be able to process 
through questions. Ms. Speier, if you're okay with the number 
that's here, I'm okay if we just start opening up questions, 
and we'll just start to formally go through this.
    Ms. Duckworth, is that all right with you?
    So we'll kind of turn clocks off. We'll start addressing 
questions, and I have no particular order on that. That way, if 
you want to be able to interrupt during the questioning time, 
you're free to be able to do that to be able to get a follow-up 
question to any statement that's made.
    Ms. Griswold, what that will do is that changes our format 
some. It won't change yours. We typically do a very structured 
5-minute time during our first round; our second round of 
questioning, it's a more open process where any Member can ask 
a question at any time. Just so if you make a statement, the 
Member that asked you the question is not limited to the one 
that does the follow-up. Is that fair enough?
    Ms. Griswold. Absolutely.
    Mr. Lankford. And so we'll just open this up to more 
conversational style.
    Ms. Griswold. I'm just answering questions, so----
    Mr. Lankford. Great. It doesn't change, I guess, what's 
happening on your side of the dais very much at all. It just 
changed a little bit on our process.
    I do have a question on the numbers that you submitted to 
us on the recovery audit appeals work, percent increase in the 
nonrecovery, I should say. I want to be able to go through a 
couple of these with you.
    You list out on the disposition outcome rates fully 
favorable, partially favorable, unfavorable, remanded, dismiss 
and other. Can you give us a quick definition on what that 
means to the provider for each of those in the process that 
happens?
    Fully favorable, obviously they've overturned the previous 
two, it comes back to them; partially favorable, there's a 
little bit of a change, and I'd like some definition there; 
unfavorable, basically they lost entirely the previous two. 
They're going to appeal, then, to the fourth level at that 
point.
    Ms. Griswold. Right.
    Mr. Lankford. Give us partially favorable, what that means, 
remanded, dismiss and other.
    Ms. Griswold. Yeah. Partially favorable, our appeals 
consist generally of a number of claims that will be submitted 
with each appeal, and so a partially favorable decision would 
say that some of these claims are payable, and some of these 
claims are not payable. And so that would be what that is.
    Mr. Lankford. So fully favorable, if a provider comes in, 
and they've got 10 different cases in front of you, they want 
all 10 of those. It may be another one that's another provider 
comes in, they bring in 10 cases, they want 7 of them or 2 of 
them or whatever it may be. So we don't know if they want 1 of 
those or 10 of those in that case, correct?
    Ms. Griswold. Exactly.
    Mr. Lankford. Okay. So unfavorable, they lost all of them?
    Ms. Griswold. Right.
    Mr. Lankford. And tell us about remanded and dismissed.
    Ms. Griswold. The remanded, we do have some authority to 
send cases back to the lower level or to the QIC if there is 
information that we need from them and that information is only 
available to--you know, from CMS and its contractors. And so we 
can do some limited remands.
    Mr. Lankford. Okay. With Part A, that seems to be a very 
high percentage that's actually being remanded and coming back. 
Do we know what happens then? Once they go back down to the 
second level, what occurs?
    Ms. Griswold. Well, actually, with most of these, they have 
come back to us, and this large number was related to the Part 
A/B policy issue, which was resolved by CMS through rulemaking, 
and so those are coming back to us.
    Mr. Lankford. Okay. So help us understand the order there. 
When you're talking about it's coming back to us, that meant it 
went to the fourth level, it came back to you?
    Ms. Griswold. Yes.
    Mr. Lankford. What does that mean? So talk us through how 
that happens.
    Ms. Griswold. Well----
    Mr. Lankford. Because this is a very high number here. 
You're talking about as many are remanded as are found fully 
favorable, partially favorable and unfavorable combined.
    Ms. Griswold. Yes. And in these cases, many of the judges 
decided to remand them. You know, they're basically questions 
about whether or not claims would be paid as inpatient claims 
under Part A, or whether they would be paid as outpatient 
claims under Part B. That was, you know, the basic issue. And 
so in order to get--many of the judges felt they needed 
additional information in order to make that decision, and they 
sent these claims back to the lower level to get that 
information.
    What has happened as a result of CMS' rulemaking and--these 
cases are actually going to be coming back to us. And I think 
they have come back to us.
    Mr. Lankford. Okay. So they're remanded, you got the 
additional detail, it's now coming back to you. How does that 
show up in our statistics here of what we're trying to see? 
What we're trying to evaluate is what's really happening in 
these cases. When a very high percentage of remand and dismiss, 
it's hard to be able to tell what's really going on.
    Ms. Griswold. Well, and we don't double count them. I think 
that's the important thing. They don't recount into our receipt 
levels when they do come back to us, you know, because they're 
not fully disposed of. The cases are still--still need an 
adjudication at our level. And so when they come back to us, we 
adjudicate them within the process, and then we would send them 
on. They either get paid, or, you know, they don't get paid, 
and many of them will get appealed.
    Mr. Lankford. Okay. So I'm still trying to track this. 
They've gone through the first two levels with CMS.
    Ms. Griswold. Yes.
    Mr. Lankford. They come to you?
    Ms. Griswold. Yes.
    Mr. Lankford. There's not the information you need to deal 
with inpatient, outpatient, whatever that may be. You're 
remanding it back to CMS?
    Ms. Griswold. Yes.
    Mr. Lankford. They're getting additional information, and 
then it comes back to you again?
    Ms. Griswold. Yes, that's right.
    Mr. Lankford. Okay. So there's now, one, two, three, four, 
five levels so far. Excuse me, five different events within the 
first three levels.
    Ms. Griswold. Five hand-offs.
    Mr. Lankford. Right. They're come back to you again?
    Ms. Griswold. Yes.
    Mr. Lankford. And then I should look at this remand that is 
sent back, it would be basically this same percentage between 
fully favorable, partially favorable and unfavorable, then? You 
would expect that, because you're saying it's not double 
counted.
    Ms. Griswold. No, it's not a double count.
    Mr. Lankford. Right. That's what I'm saying. But when it 
comes back to you again, I should expect it to be something 
similar to this percentage that's coming back? I'm trying to 
find out what happens when it's remanded. Are they more likely 
to be found favorable or unfavorable when it comes back after 
being remanded?
    Ms. Griswold. I don't think that--the remand doesn't 
predispose it to any sort of disposition when it comes back. 
When it comes back to us, we adjudicate it as all other claims, 
and, you know, we'll have a hearing on it and make a decision.
    Mr. Lankford. So this is somewhere around 60 percent--just 
Part A--around 60 percent, 65 percent being found fully 
favorable when they're coming to you. I should expect if 
they're remanded, it's about the same percentage coming back 
again.
    Ms. Griswold. Yeah.
    Mr. Lankford. That once they're remanded, and they get 
through that--so basically if they are very, very persistent in 
Part A at least, pretty good chance they're going to be found 
fully favorable.
    Ms. Griswold. I think if the percentages hold true, then 
you can use those percentages to say what will happen with the 
remands when they come back.
    Mr. Lankford. Okay. And that's approximately how long? 
Because, again, getting to you the first time, they have 
consumed 3 years in the process. Then it gets remanded, it goes 
back to CMS, they handle it in 3 months, whatever it may be, 
and then they're waiting back in line again. That may be 
another 3 or 4 years to get back in line to get to you. So a 
remand is an incredible amount of time.
    Ms. Griswold. It's my understanding that these cases are 
really already back with us, that they were sent back in bulk, 
and so these are already back in the hearing queue. So, but as 
far as how long that took, that's a number I'll need to get 
back with you on.
    Mr. Lankford. That's what we're trying to figure out, 
because the remand is a new number that we're trying to track 
based on what we got last night on this. I'm trying to figure 
out if it's 3 years to get to you and get a decision; it gets 
remanded, goes back, and they're back in the queue again, so 
now we're up to 6 years minimum to get fully through all five 
of those steps.
    Ms. Griswold. I believe--I will check on this for you and 
clarify it, but I believe that they retain their spot in the 
hearing queue when they are remanded.
    Mr. Lankford. Okay. So once CMS makes the decision, they're 
right back to you again quickly?
    Ms. Griswold. And they're right back into the queue where 
they were when they left us, because we haven't given up 
jurisdiction of the claim, you know. We've sent it back for 
some more information, but it's still with us. And generally it 
would come back to the same judge who had it when it was sent, 
when it was remanded.
    Mr. Lankford. Okay.
    Ms. Griswold. This was--this year was an aberration. You 
can--you know, it was a very, very high number.
    Mr. Lankford. Right.
    Ms. Griswold. And we're not seeing that in subsequent 
years, and we didn't see it in previous years.
    Mr. Lankford. Okay. And you feel that's because of the 
whole issue about inpatient, what's inpatient, what's 
outpatient, that was unique to this year?
    Ms. Griswold. Correct. Correct.
    Mr. Lankford. Is it still with the two-midnights rule and 
all of that?
    Ms. Griswold. Yes. Yes.
    Mr. Lankford. What a fun rule. That's gone really, really 
well. The hospitals love it.
    Ms. Griswold. Well, we're waiting to see what impact it 
will have at our level. We have not seen the impacts of that 
rule at our level yet.
    Mr. Lankford. I have yet to find a fan of that rule, by the 
way, anywhere. And that seems to be one of those issues that 
doctors in hospitals raise consistently saying, this affects 
our decisionmaking. That wasn't your decision. I'm not blaming 
you. But I would expect there would be quite a bit coming at 
you because there's a tremendous amount of frustration around 
that particular rule, and----
    Ms. Griswold. Well, and I think this is something that we 
are watching and need to watch. We need to continue to see what 
the appeal rates are in this Part A and Part B inpatient/
outpatient arena.
    Mr. Lankford. Let me ask two more quick questions on this, 
then I want to be able to share this time, as well. The 
``dismissed'' and ``other.''
    Ms. Griswold. Yeah, the dismissals are cases where, for one 
reason or another, usually it's because the appellant hasn't 
properly filed their request for hearing, or perhaps they have 
abandoned their request for hearing in the process by not 
showing up for hearing and that sort of thing, and so the cases 
are dismissed at our level. That is a final disposition of 
those unless they appeal that dismissal to the Medicare Appeals 
Council.
    Mr. Lankford. So that is an unfavorable sitting out there, 
but it's basically an unfavorable based on the individual 
didn't show up, didn't file, didn't complete their process. 
They started the process, but didn't complete it.
    Ms. Griswold. Correct.
    Mr. Lankford. But the previous decision would still stand, 
which was unfavorable?
    Ms. Griswold. That's correct. The QIC decision becomes the 
final decision.
    Mr. Lankford. Okay. What is an ``other''? This sounds like 
``present'' on our dais.
    Ms. Griswold. The other, I will actually--oh, okay. 
Escalations. It would include escalations to the Medicare 
Appeals Council. As I mentioned, we have about 152 of those. 
Occasionally we have an expedited access to judicial review, 
but those are very, very rare.
    Mr. Lankford. Okay. Thank you.
    Ms. Speier. Thank you.
    I'm still a little flummoxed by this remanded number. I 
just added up the fully favorable, the partially favorable and 
the unfavorable and came up with the number 21,846, which is 9 
from this 21,855. So this remanded number that you say get back 
in the queue, are they getting back in the queue in FY '13, or 
are they getting back in the queue in FY '14?
    Ms. Griswold. I believe that they came back in FY '13 or 
early fiscal year '14 right about the time that CMS 
Administrator Tavenner issued, you know, her rulings on this.
    Ms. Speier. But since the number is so close, and maybe 
that's just part of the aberration, that would mean that 
virtually every one of these cases was remanded because there 
was inadequate information?
    Ms. Griswold. No, these are not--it's not a cumulative 
number. I understand that they are close to the same amount, 
but the remands are exclusive of this fully favorable, 
partially favorable and unfavorable. It's a separate category.
    Ms. Speier. Okay. So it's a separate category, which would 
mean that we're not talking--we're talking about close to 
50,000 just in Part A if you take all of these numbers and add 
them together, give or take?
    Ms. Griswold. Yes.
    Ms. Speier. Okay. All right. Let me ask you this: ALJs 
don't have medical training, correct?
    Ms. Griswold. No, as a general rule, they don't. I don't 
know whether there are any who actually have dual 
certifications, medical and legal, but they are attorneys who 
have been selected off an OPM register.
    Ms. Speier. Now, because they don't have medical training, 
they are somehow trying to determine whether or not a procedure 
was appropriate or not appropriate, correct?
    Ms. Griswold. Reasonably--medically reasonable and 
necessary, yes.
    Ms. Speier. So is that system flawed just at the outset?
    Ms. Griswold. Well, we have some extensive training for 
them that is conducted. When they come onboard, we do a 
training session for them that goes over very much of this, but 
lawyers are involved in medical/legal issues in many, many 
areas.
    Ms. Speier. But they're advocating typically for one side 
or another and not judging whether something is appropriate 
medical procedure or not, whether someone really needed this 
procedure. It's more of a philosophical question. I don't--I 
mean, we obviously have engaged in this for a long period of 
time. I just find it somewhat odd that in the end there are 
attorneys like you and me who have been trained a certain way, 
but don't know whether this was an appropriate urology 
procedure or not.
    Ms. Griswold. Well, but in essence, what they're doing is 
making a judicial decision that is based on the evidence that's 
presented to them. And, you know, in our setting, that includes 
the written record, the documentary evidence, and generally 
during the course of a hearing also some explanation of medical 
necessity from either a provider or supplier of the services. 
And so that is--you know, that's kind of the way this system is 
set up for us to be able to rely on the opinions of----
    Ms. Speier. I'll let you read your note so you can respond.
    Ms. Griswold. Yeah. Essentially it's the same thing that 
I've been saying, you know, that we look at the record to 
determine whether the standards for coverage have been met.
    Ms. Speier. So I think we're all troubled by the fact that 
54 percent, at least that's the record that we have heard, of 
the appeals in Part A are sustained. Now, you said earlier that 
the figure for the first part of this year is less than half 
that that are fully favorable, but fully and partially, to me, 
need to be lumped together. What is the figure for 2014 for 
fully and partially favorable?
    Ms. Griswold. I don't have a percentage for that.
    Ms. Speier. Could you get that for us, though?
    Ms. Griswold. I certainly can.
    Ms. Speier. Okay. So here is the dilemma I see. Fifty-four 
percent of the appeals are sustained. So in the medical 
profession, if you've got a better than 50/50 chance of being 
sustained, you're going to appeal. So your volume is going to 
continue to increase as more and more providers recognize that, 
hey, this is a pretty good--your odds are really good here. And 
when you have an ALJ who is looking at a set of circumstances, 
is not a physician, but is trained, and is looking at, well, 
you know, from my perspective as someone who is, you know, not 
in the profession, it could be a close call. The procedure has 
been performed. It's not like there hasn't been a service that 
has been actually provided in most of these circumstances. So 
you're going to err in favor of saying, okay, we're going to 
sustain this appeal.
    Ms. Griswold. Yes.
    Ms. Speier. So at some point I wonder whether we're going 
to have diminishing returns here. That's more of a provocative 
question, rhetorical question at this point. But I do think 
that the construct probably should urge us to think about 
whether it's the way we should be doing these appeals.
    Ms. Griswold. Uh-huh.
    I would like to clarify one thing here, which is that the 
percentages you're looking at are on the recovery audit 
appeals. And the reversal rates on those appeals have been 
higher than the general reversal rate for the agency, which--
you know, if it includes all appeals. So for 2014, and, again, 
the numbers I have are fully favorable decisions, but it was 
just 19.3 percent.
    The numbers have been--I'm sorry, that was fully favorable 
OTRs, and I keep going to that number. I will get you a number 
on the reversal.
    Ms. Speier. Now, the other thing I've been told is that 
when CMS actually is present at these hearings, that the 
decisions are not sustained, but the CMS representative is 
oftentimes not present. So that suggests to me, again, that we 
have a system that isn't properly--isn't operating properly, 
because we want fairness across the entire spectrum.
    So if one provider shows up, has their appeal, and the CMS 
person shows up and it's not sustained, but another provider 
shows up, same sort of circumstance, but the CMS person is not 
there and it is sustained, we're not providing equal protection 
under the laws.
    Ms. Griswold. Uh-huh. Let me--the CMS, what we have found, 
and there is very limited data on this, and it does come from 
CMS, but when there is CMS participation at the hearing, the 
reversal rate does go down. And----
    Ms. Speier. By how much; do we know?
    Ms. Griswold. I think it was about 6 percent, if I remember 
correctly. It was from about 46 percent. It was only over a few 
months of data that we have. I'll get you the exact numbers, 
but from about 46 percent down to 40 percent. Yeah, 40 percent.
    And as far as the reversal rates go, if I could, I've got 
that number now which is on the dispositions, the overall 
favorable rate in '14 is 35.2 percent. We have been doing a 
number of things which have been designed to bring our policy 
interpretations in line across all levels and to develop some 
consistency in adjudication. Part of that is training, and we 
have had--approximately 20 training sessions have been 
delivered by CMS, their doctors and their policy experts to the 
administrative law judges since 2010.
    And so what you will see if you look at the historical data 
is that the reversal rates have actually been going down. They 
were at a high in 2010, 55.5 percent fully favorable, and that 
is now down to 35.2 percent.
    Mr. Lankford. Why?
    Ms. Griswold. I think that the training efforts have--you 
know, have a lot to do with that.
    Mr. Lankford. So you have a better quality of decision? 
Because they're dealing with every case in front of them having 
to make a decision.
    Ms. Griswold. Yes.
    Mr. Lankford. So the question is the cases coming to you, 
they either made better decisions at a lower level, or there's 
something that's happened at the ALJ level with better training 
that you're making better decisions, and the decisions earlier 
you were finding people fully favorable more often than what 
would be consistent with policy.
    Ms. Griswold. Or that joint training leads to better 
consistency among adjudication levels.
    Mr. Lankford. Well, that still would mean that at some 
point you've got some people making fully favorable decisions 
that should have been partially or unfavorable. If you're 
saying better training has fixed that, that would say there was 
an issue at some point that we were doing too many fully 
favorable or partially favorable.
    Ms. Griswold. I don't think I would go so far as to say it 
has fixed it, you know, but I would say that it has improved 
it.
    Mr. Lankford. Has changed.
    Ms. Griswold. And I think the goal is, you know, as 
Congresswoman Speier points out, the goal is to have the case 
paid; if it is a validly payable claim----
    Mr. Lankford. Yes.
    Ms. Griswold. --to have it paid at early as possible and 
keep them from reaching the ALJ level.
    Ms. Duckworth. Mr. Chairman, may I add a little to this?
    Mr. Lankford. Sure you can.
    Ms. Duckworth. I just want to touch on this. Is there 
training coming from you, the ALJ, back down to CMS, feedback 
back to CMS? And is CMS accepting that at the RAC audit? And 
I'm going to use an example that's happening in the orthotics 
and prosthetics industry where after an artificial limb is made 
and delivered to the patient, the claim is being denied by RAC 
audits because the actual words ``patient is an amputee'' does 
not appear in the physician's notes. But the words ``patient 
requires artificial limb or prosthesis'' appear, and the 
Medicare history includes payment for the surgeon to conduct a 
limb amputation.
    Ms. Griswold. Uh-huh.
    Ms. Duckworth. And so many of these denials could be 
eliminated if when they get to--and then these are, you know, 
getting reversed at ALJ.
    Is there feedback going back down to the CMS saying, look, 
just because the exact words does not appear in the surgeon's 
note that the patient is an amputee doesn't mean that you deny 
these, because if you look, it says that the physician is 
saying they need a prosthetic, and we paid them to amputate a 
limb.
    And so are you in CMS and the RAC audits looking at 
different records? Are you--because, you know--I----
    Ms. Griswold. No. I mean, as a general--as a general rule, 
we review the same record. Now, there are some exceptions to 
that. There's a good cause exception which allows additional 
evidence to be presented at the ALJ level. But we are supposed 
to be deciding things on the same record.
    What does change significantly is the fact that we do have 
a hearing. And so at our level we are able to, you know, 
question the provider/supplier, receive some explanation, and 
then make a decision. That becomes part of the evidence that's 
in front of us.
    Ms. Duckworth. But my understanding is that the auditors 
are not allowed to consider the O&P professional's notes, but 
those notes are considered part of the physician's record, and 
they show up under the physician's record. So the O&P, the 
person who makes the artificial leg, his notes--the RAC 
auditors are not allowed to look at his notes. They only look 
at the physician's note. But when you look at the physician's 
note, you look at the entirety, which includes the person--the 
prosthetist's notes.
    Is there feedback coming from you to CMS to allow their RAC 
auditors and the lower levels to say you need to look at the 
prosthetist's notes, because you're pushing these people into 
the system? And it's ridiculous when someone is being--you 
know, something as simple as ``patient is an amputee'' is 
missing from a record from a guy that we paid already to have 
his leg amputated.
    Ms. Griswold. Yes. And we do have regular meetings with CMS 
and with their appeals group within CMS. I think those happen 
on a weekly basis? Weekly basis. And when we identify a trend, 
we would bring that up at those meetings, or if it was 
significant trend, I would bring it up with Marilyn Tavenner. 
I'm not aware of the specific instance that you are describing.
    Ms. Duckworth. Oh, it's more than one. We have 100 
orthotists and prosthetists in this country who have gone out 
of business waiting to be reimbursed and have gone out of 
business, and so it's more than one. And I am sure that we can 
get you a lot of those examples.
    Mr. Meadows. Yes.
    Ms. Griswold. You know, as we become aware of them, I think 
that's part of the, you know, part of the issue. Our judges are 
individual adjudicators, and so we have to become aware that 
there is a trend. And when we do, we have those feedback loops 
in place, and we have--we are able to do that.
    Ms. Duckworth. How do you spot a trend? Do you have a 
system in place at the ALJ level to figure out, to find those 
trends? And I think Mr. Meadows, my colleague from----
    Mr. Meadows. Well, I just want to reiterate what the 
gentlewoman from Illinois was talking about. She's exactly 
right, and this is not just unique to her particular group that 
is--told her. I mean, we've got physicians--we've got 
physicians who literally go through step one and step two that 
have complete records.
    And it has to go to you before you look and say, oh, gosh, 
it's a complete record, and they've waited how many months or 
years to find it. And it's crazy stuff, Ms. Griswold. I mean, 
you know, she's given that. I got examples. I mean, after this 
last hearing, we started hearing from all over the country from 
claims that were denied because the date instead of being at 
the top was at the bottom. Or the physician, you know, had 
signed his name in this spot, and they weren't taking--I know 
we can't fix stupid, but it seems like that that's what we've 
got to do here, because it's just, I mean, a reasonable person 
would do this.
    And you talk about trends. I don't know how you define 
trends, because you've got adjudicators that are adjudicating 
across the OMHA system. So what one adjudicator is seeing as a 
trend in his or her jurisdiction, it doesn't work. And so I 
just--I appreciate the gentlewoman yielding. I'll yield back.
    Mr. Lankford. Go ahead.
    Ms. Duckworth. I just have one final thing, and that is as 
you go to meet with the newly confirmed Secretary Burwell, I 
was hoping that you would consider having a conversation with 
her about granting the same kind of relief from RAC audits that 
was being granted to hospitals under Part A, through the work 
under the two-midnight rule, to Part B providers like those in 
orthotics and prosthetics. If we're going to grant it to 
hospitals under Part A, I think that we need to consider 
granting it under Part B, especially since there is a halt to 
the hearings at this point.
    Thank you, Mr. Chairman.
    Ms. Griswold. I'll certainly convey that.
    Mr. Lankford. Ms. Lujan Grisham, would you want to jump in? 
Go ahead.
    Ms. Lujan Grisham. Thank you, Mr. Chairman.
    And at the risk of piling on now in the last couple of 
comments and statements, I have the same concern. I applaud 
that you've introduced new initiatives so that your 
productivity is better, but now we're minimizing; my 
information says that, you know, the average hearing is now 2 
hours, and given the complexities--although we haven't talked 
about the complexities, we've talked about the easy stuff--I'm 
not sure gets addressed. And while I know that given that we 
now have an incredible backlog, and we are struggling with 
this, it's time to do more than just sort of figure out the 
steps, how we're touching these cases, how we're cross-
communicating, what the training looks like. We have to maybe 
do something up front, and the up front is nobody on this 
committee, and I daresay no one in Congress, is willing to 
tolerate waste, abuse and fraud. We want you, everyone in the 
system, to do everything you can not just to minimize it; 
eradicate it.
    But these are clearly administrative issues. And while I 
do, I expect providers to be as administratively competent as 
they can, I can't with consistency, and I'm a lawyer, even read 
a Medicare EOB. Given that, the likelihood that you make 
mistakes, simple; the form says put the date at the bottom, but 
that form was updated this year, I've got 200,000 forms from 
last year, and instead of throwing those away, we're just going 
to--and no one pays attention to that.
    And the fact that we are doing this under a waste, fraud 
and abuse context, and I think that's important, but we're 
closing these businesses who aren't getting paid, and there's a 
lot of small providers. And again, I know that you've heard all 
this, and we appreciate it, and I agree with my colleagues, I 
want fairness. I--just because you're a big provider, I don't 
think that a big hospital system should have to wait and be 
penalized in this fashion.
    But what's critical in a rural and frontier State like mine 
in New Mexico, that means that an entire community in a place 
like Gallup, where in one of--in my district in Torrance 
County, there aren't any providers, there aren't any durable 
medical equipment providers, there aren't any small oncology 
providers. There are none. You have zero access. And we don't 
even have the right tools or strategies to recreate these 
practices.
    So I'm really interested as a result of understanding now 
the situation between how they're adjudicated, what your 
initiatives are, how you're trying to manage these cases, I 
feel--I appreciate the weekly meetings, but I would encourage 
you to go back to Ms. Tavenner and the Secretary and be really 
clear, at least some of these comments--and I think it seems to 
me like we're all on the same page on the subcommittee--that 
we've got a problem on the front end.
    So we do want updates, I do, I want information about what 
you're doing on the back end. And I want to be careful that 
people feel like because it's cumbersome, that they can win on 
an appeal even when there might be a material problem. But I 
think the bulk of these cases and the reason that you now have 
half a million cases coming to you on appeal is because they 
are administrative issues that don't come anywhere close to 
fraud, waste and abuse, and we need to deal with that issue 
sooner than later.
    And I don't know that you--is a comment to make back except 
that my expectation is that you'll take this urgency back, 
because we are--with all the work we've done to maximize 
access, this effort is minimizing it to the highest degree, and 
it has a chilling effect on our patient populations.
    Ms. Griswold. I would certainly take that back. And, you 
know, if there is a positive that is coming out of this 
situation, I think it is that the Department is viewing this 
workload more holistically. Although there are three separate 
agencies, CMS, OMHA, and the Departmental Appeals Board and 
Medicare Appeals Council, that work with these workloads, the 
Department is taking an active role in trying to resolve 
things. And so I will take your concerns back. I certainly 
share them.
    I would also say I was very pleased when I came here to 
OMHA to be part of an agency that had for the most part met its 
90-day time frames. You know, as an administrator myself, I 
find the delays very troubling and unacceptable. You basically 
have here, though, a workload and capacity problem at our----
    Ms. Speier. And can we get to that for a moment, because, I 
mean, we can sit here and complain for hours, and nothing's 
going to change, because the addition of 17 new ALJs, talk 
about the simple math that my good friend Mr. Meadows had 
referenced. There's 500,000 appeals that will be backlogged by 
the end of this year. You divide that by 1,220, and you're 
working at optimal levels, and I don't know that you can do any 
more than that, and, frankly, I don't know that we would want 
you to do more than that, because giving less than 2 hours to 
every case is probably unfair and would be slipshod. That would 
suggest that we would need 410 new ALJs if we wanted to get rid 
of that backlog in a year, 410, and you have asked for 17, or 
you have been given 17.
    So we're basically saying to all the providers out there, 
suck it up. Excuse my language, but that's basically what we're 
saying to them. We're saying that we don't--we're not willing 
to deal with this backlog in the reality that it--we're putting 
blinders on, we're going to add a few more, and cross our 
fingers and hope that with a few new reforms that you put in 
place, that it's going to--but it's not going to reduce it to 
the extent that we're not going to be back here next year with 
the same discussion.
    So how would you comment to that?
    Ms. Griswold. Well, there are several things. One----
    Mr. Lankford. Ms. Griswold, I'm sorry to interrupt. Can you 
pull your microphone a little bit closer to you?
    Ms. Griswold. Sure.
    Mr. Lankford. Thank you.
    Ms. Griswold. You know, there are several funding issues 
here, and, in my mind, one of the primary ones has to do with 
the Recovery Audit Program and the recovery audit legislation. 
I think when Congress passed the legislation for the program, 
it was envisioned that that program would be self-funding out 
of recoveries, but the legislation actually provides that the 
administrative costs of CMS will be covered. That does not 
include the administrative costs or the--of OMHA or the 
administrative costs of the Departmental Appeals Board. So what 
we have basically had in that regard is a workload that came in 
on us that was basically unfunded.
    So I think that's part of the problem, and it's a part of 
the problem that I think does have a solution. And so if I were 
queen for a day----
    Ms. Speier. Yes. What would you----
    Ms. Griswold. --you know, that would be one of the simple 
fixes that I think would be possible.
    Ms. Speier. Meaning what? Fix the----
    Ms. Griswold. To in some way be able to----
    Ms. Speier. Properly fund.
    Ms. Griswold. --properly fund the--fund OMHA, and I'll put 
in a plug for my sister agency, the Departmental Appeals Board, 
so that the recovery audit appeals that come to the last two 
levels are funded at--the administrative costs are funded out 
of the program as they are at the lower two levels.
    Ms. Speier. So is there enough money that is recovered by 
the RACs to pay for all of the levels of appeal?
    Ms. Griswold. Yes. I think that there is, yes. And, you 
know, this is based on CMS' reports on the recoveries that are 
coming from that program. So that is one part, I think, of the 
solution.
    There's some other things as well. We're doing these two 
pilots. One involves alternative adjudication models, you know, 
using a settlement conference facilitation. If that pilot is 
successful, I think we need to look at some things like that as 
well.
    Mr. Lankford. Is that being piloted in a geographic 
location or with a certain type of file?
    Ms. Griswold. It's being piloted at the Office of Medicare 
Hearings and Appeals. There's no geographic location. It's 
being done with Part B, I believe--yeah, Part B claims right 
now. And there's a certain time period where we are offering 
these facilitated settlement conferences. CMS has agreed----
    Mr. Lankford. Give us an example of what that means.
    Ms. Griswold. Well----
    Mr. Lankford. Real-life terms.
    Ms. Griswold. Well, real-life terms, it is just--it was put 
on our Web site on June 30th, so it's a very new program, and 
we're waiting to see how appellants respond to it. But the 
theory is that an appellant will be able to come in and ask for 
a settlement conference with an attorney who is at OMHA. CMS 
would provide someone there with settlement authority who would 
be able to discuss the merits of the claim and possibly resolve 
them short of them having to stay in the queue and go to 
hearing. That is the theory.
    While that is going on, they do not lose their place in the 
hearing queue, so they would still remain there, but we're 
hopeful that this will allow us to resolve some of the pending 
claims.
    You know, this is a two-part problem. There are the pending 
claims that we have; there are also the receipts that are 
coming in. This piece of the solution is designed to deal with 
the pending cases that are already with us.
    Mr. Lankford. So is it your assumption it's the slam-dunk 
cases that are going to come at that settlement process? Go 
back to Mr. Meadows' statement about a signature's in the wrong 
spot, and they walk in and say, it's not at the top, it's at 
the bottom, it's right here. Is it your assumption it's going 
to be that kind of stuff coming at you, or what is your 
assumption coming at you with the settlements? And are the 
settlements for a lesser amount than fully paid, or is it fully 
paid so they're at a faster process to full payment?
    Ms. Griswold. Well, you know, I think it depends. Like most 
settlement conferences, it's going to be probably a little bit 
of give and take. That would be my anticipation. But if it's 
something that we can, in that--the course of what's really a 
prehearing conference with an attorney, point out a simple 
error, a technical error or something like that in these 
claims, then, you know, it is potential, it is possible that 
they would be fully paid. We just--we have to wait and see how 
that would work.
    Ms. Speier. So this alternative dispute resolution would be 
valuable to providers in particular if it was a decision that 
was going to be made swiftly.
    Ms. Griswold. Yes. We are----
    Ms. Speier. So that becomes the appeal.
    Ms. Griswold. We're trying to find ways----
    Ms. Speier. No pun intended.
    Ms. Griswold. --of resolving claims within our pending 
workload more quickly than we can get them to an ALJ. And we're 
trying to do that given our current authorities.
    Right now the way the statutory scheme is structured, an 
appeal cannot get out of step three, it cannot leave OMHA 
without action by an ALJ. So what this would do, there would be 
this agreed-upon settlement, both parties would sign, and the 
judge would then dismiss the appeal. So the agreement becomes 
the resolution of the claims.
    Mr. Lankford. So is that listed in the chart that you gave 
us as a dismissal, long term----
    Ms. Griswold. It would end up being----
    Mr. Lankford. --or is that--it ends up being favorable or 
fully favorable or----
    Ms. Griswold. It would be a--it would probably be a 
dismissal, but right now we're just tracking them separately as 
a settlement resolution.
    Mr. Lankford. Okay.
    Ms. Speier. How about the other alternative is this global 
settlement discussion concept, which claimants that have very 
similar kinds of cases would all be invited to come in and 
participate in a global settlement, but they could choose not 
to, I gather; is that correct?
    Ms. Griswold. This is an initiative that is one of CMS' 
initiatives, and I have to admit that my knowledge on this is 
limited, but, you know, it's my understanding that it would be 
a global settlement.
    Ms. Speier. So that would happen before it even got to you?
    Ms. Griswold. I think it also contemplates--they're also 
looking at claims that are pending at all levels of the 
process.
    Ms. Speier. So we really haven't seen it operational yet?
    Ms. Griswold. No, we have not. It's an initiative that is 
still pending.
    Ms. Speier. Okay.
    Mr. Lankford. Okay. So I know you're communicating back and 
forth with CMS, and CMS is part of the issue, and I get that, 
that's not you, that you're in these regular conversations. 
When we're getting to an attorney, helping them to try to do a 
type of presettlement, what you're talking about, before it 
gets to an ALJ, that's really something that they would have 
rather had with CMS and to get this done a long time ago, to 
face-to-face with someone there, resolve this, or to be able to 
get on the phone and everybody looks at the same document and 
tries to resolve this. If they're simple, straightforward 
cases, they just want this resolved. If they are a physical 
therapist that is trying to take care of his practice as well 
as trying to do all the paperwork, he does not need one more 
thing to do to try to chase all this stuff down. Just to be 
able to leave and go do a hearing and to be in that process, or 
to hire outside counsel is well beyond what they want to be 
able to do. They just want resolution of simple things.
    How could a process like what you're experimenting with 
work in a CMS so it never gets to you? We're still trying to 
figure out how do we prevent the backlog.
    Ms. Griswold. Right. And I think among CMS' initiatives, 
you will see mention of a discussion period, particularly with 
regard to recovery audit, and I think that that could be 
helpful in resolving these claims at the lower level.
    Mr. Lankford. But that's not something----
    Ms. Griswold. I don't know----
    Mr. Lankford. --you're aware that they do? That's something 
they're discussing, but that's not something that they do 
currently?
    Ms. Griswold. I really can't speak to that. I don't know to 
what extent they have a discussion period right now.
    Okay. I am informed that it's optional right now in the RAC 
cases, recovery audit cases.
    Mr. Lankford. But at the CMS level, they can do some sort 
of discussion as well?
    Ms. Griswold. I think so, but I'll have to check on that. 
I'd rather get back or have CMS get back to you on that.
    Mr. Lankford. I understand. I understand. I don't want to 
push you outside and try to answer for them. We're just trying 
to do some fact gathering as well.
    Ms. Griswold. I understand.
    Mr. Lankford. Because, again, we come down to the issue of 
they just want resolution.
    Ms. Griswold. Absolutely.
    Mr. Lankford. And once the RAC contractor grabs it, files 
it, lays it out there, they lose contact with them, and now 
they're fighting with someone else. And really their fight is 
first with the RAC folks they can't get to anymore because it's 
too late. They've made their decision, and they've filed it. 
And then the RAC auditor is trying to figure out--playing the 
percentages, literally, that if they grab 10 or 15, they know 
they're going to get 3 or 4 of these at least get paid, and 
they get paid a percentage of each of them. So it's a whole 
different game for them.
    But for the provider, our issue all along is if it's fraud, 
it's fraud, and we ought to bust them. If it's a good provider, 
this should not be harder. These are the folks we need on our 
team and that the American people need rather than hurt.
    Ms. Griswold. I fully agree, and I think that identifying 
not just Medicare fraud, but also improper payments is an 
important piece of this puzzle. But what we have done, I guess, 
in the zealous efforts to implement Congress' intent in that 
regard, it's gotten out of balance, and what we need to do is 
restore that balance at this point between the fraud efforts 
and the appeal rights. And so I'm--you know, I have spoken with 
the Secretary on these issues, and I know she's committed to 
restoring that balance.
    Ms. Speier. You know, I had a RAC in my district that was 
creating a great deal of discomfort for one of the hospital 
providers in my district, and it was also a hospital that was 
under a lot of financial pressure to just keep its doors open. 
And my experience with that particular situation suggests that 
more than anything else, the provider wants to know what's 
going to be approved.
    Now, they could have, in fact, have been unbundling 
services that, you know, would allow for more reimbursement. I 
don't remember the elements of it. Sometimes, you know, the 
providers are in a bind and are looking for ways to upcode or 
to unbundle services. So we need to be smart about this and not 
appear to be taking one side or another. Everyone should be 
treated the same. But it's so important for there to be some 
certainty, and some finality, and some timeliness to these 
decisions.
    And this backlog, I keep coming back to this backlog, 
because we're not getting anywhere near addressing that even 
with all of these new proposals that haven't even been tested 
really. So I still think that we've got to do--whether we hire 
temporary ALJs for a period of 1 year and deal with this 
backlog, otherwise we haven't really accomplished much.
    Ms. Griswold. And just to address that, there are very, 
very limited authorities for hiring temporary ALJs, and this is 
statutory under the Administrative Procedures Act. Really, 
there are two ways. You can try and get a loan--a judge on loan 
from another agency. Most agencies have their own backlogs.
    Ms. Speier. It's true.
    Ms. Griswold. And when we went forward requesting loaner 
judges in April, we did not get any. So the other way is to 
hire judges who have retired, and they're called rehired 
annuitants, senior ALJs. Those individuals are also on a list 
that's maintained by OPM. They can be hired for a couple of 
years and then let go. Beyond that, an ALJ appointment is, you 
know, essentially a life appointment except for removal for 
good cause after a hearing before the MSPB.
    Ms. Speier. So how large is this list of retired ALJs?
    Ms. Griswold. How many were there? Nine--it's probably 
around 100. It's not a tremendously long list, you know, but we 
do have that. We requested it in April, because we do think 
that temporary capacity is a part of this solution to deal with 
the backlog.
    Now, when you get to--when you're talking about projected 
receipt levels, I do think we need to be appropriately staffed 
for what we anticipate to be coming in, you know. So I don't 
know if that's helpful, but ALJs are nonprobationary. When you 
hire them under the APA, there's no probationary period, there 
are no performance reviews, and they can't receive awards. So 
those are kind of the things that make them different from 
other government employees.
    Mr. Meadows. If the gentlewoman would yield, I want to 
follow up, because they're hitting on precisely the point and 
why it's so incredibly important that you're here today, but it 
really is about what's coming to you and how do we address 
that.
    The bigger concern that I have is is even if you hired your 
hundred, it would still be shy, based on my simple math, of 
what's going to happen, because this doesn't stop today. It's 
growing exponentially every day. I think it's 1,500 appeals, at 
least, a week. Is that correct?
    Ms. Griswold. It has been as high as 16,000 appeals a week.
    Mr. Meadows. A week, yeah.
    Ms. Griswold. But it has been down slightly at the 
beginning of this year to 11,000. We're trying to figure out 
where the plateau is going to be.
    Mr. Meadows. Well, I guess--I was told by Jonathan Blum 
before he left that there was a policy change within CMS that 
was initiated--and maybe numerous policy changes--but there was 
a policy change between 2011 and 2012 that dealt with the way 
that they start to refer these to you. Part of it's RAC, but 
part of it was--and that he needed a legislative fix. Now, my 
question to him was, if it was a policy change, why do you need 
a legislative fix?
    But what I'm concerned about is is what changed in 2011 or 
2012 to make this number grow that you're getting when we're 
not seeing payments, miss--the payments, improper payments, 
actually go down? So we've seen no progress in terms of 
improper payments, and yet we've got this huge problem on our 
hands, and we're not saving any money.
    Ms. Griswold. Uh-huh.
    Mr. Meadows. So what changed in 2011 or 2012? And I'll 
yield back to the chairman, let you answer.
    Ms. Griswold. Okay. Well, the big thing was the recovery 
audit, of course. You know, we've talked about that. That was 
initially a pilot program in 2009-ish. You know, we saw I think 
it was four States. And that----
    Mr. Meadows. But that was an act of Congress. He indicated 
it was a policy within their agency that--I don't know if----
    Ms. Griswold. It's probably--I mean, there was--and it was 
probably around that time period where there was a focus on 
identifying improper payments. That's not tracked as part of 
our--you know, we track the recovery audit separately.
    Mr. Meadows. Right.
    Ms. Griswold. But CMS' efforts to identify improper 
payments, the ZPICs, Zone Program Integrity Contractors, and 
the others, you know, Zone Program, who are really looking at 
fraud issues, and there was also a coding initiative and some 
other things like that, but any time there are efforts at CMS' 
level that result in a denial of more claims, then at our level 
there is going to be an increase in appeals.
    Mr. Meadows. But that's my point. It didn't change the 
improper payments. I mean, they may have done that, and it may 
have been well intentioned, but we are still--actually, they 
increased, if you look at the numbers. You can go on there. We 
had a hearing yesterday, and so that's fresh in my mind.
    But I'll yield back. I want to thank the ranking member and 
the chair for their leadership on this and their graciousness 
to allow me to be included.
    Ms. Griswold. And if I could----
    Mr. Lankford. Right.
    Ms. Griswold. Could I go back to one issue that you raised 
earlier, which I think I have finally kind of grasped what the 
question may have been, and that has to do with our 
appropriation and how that is handled? And, of course, as you 
pointed out, the Medicare Modernization Act did contain 
language which would authorize to be appropriated funds that 
would, you know, cover an increase in adjudicators as needed.
    Having said that, though, that appropriation still has to 
be approved, and it does have to go through our Department's 
appropriation process. So I just wanted to point that out.
    I would also say with regard to our general appropriation 
that, you know, we do know we've been living in challenging 
budgetary times. And in the past 5 years, the President's 
budget has actually only been approved for us in 1 of the 5 
years. So requests that we have gone forward with, even though 
they'd be somewhat modest, have really only been approved this 
year, and so we appreciate that, and we're trying to do what we 
can with the money that's been appropriated to us.
    Ms. Speier. So--and that was approved because it was part 
of the omnibus bill?
    Ms. Griswold. Oh, was it part of the omnibus bill?
    Ms. Speier. Why was it approved this year and----
    Ms. Griswold. I don't know whether it was part of an 
omnibus bill or what it was part of, but I do know that we 
received President's budget this year. I'm sorry.
    Ms. Speier. So is there any other statutory authority you 
think you need or could use?
    Mr. Lankford. Or solutions that you would propose?
    Ms. Griswold. Yeah. You know, I think that there are a 
number of things that are going to be coming through the 
appropriate legislative process that we're looking at. I think 
the two that I've highlighted from our perspective will provide 
us with the greatest ability to handle our workloads and to 
expand the way that we adjudicate claims at OMHA.
    There are some additional things that are being considered 
that--you know, through the Departmental Work Group that I know 
will be coming up through the proper legislative channels.
    Mr. Lankford. When will you evaluate the settlement 
process? It obviously just started June the 30th, so it's just 
starting. When is the target date for your initial evaluation? 
Is it a year? Is it 6 months?
    Ms. Griswold. No. We're looking at a 6-month evaluation.
    Mr. Lankford. Okay. Can you put us on a calendar reminder 
and 6 months from now send it to this committee as well----
    Ms. Griswold. Certainly.
    Mr. Lankford. --so we get a feel for that also?
    Ms. Griswold. And we're tracking a number of metrics with 
that from which we'll judge the success of the program. We'd be 
happy to include you in that.
    Mr. Lankford. Okay. Please do. This committee is obviously 
very interested in that.
    Ms. Speier. Mr. Chairman, I don't have any further 
questions. I just want to thank Ms. Griswold for being so 
attentive to our questions and for sitting around for an hour 
and a half while we went and voted. And thank you for your 
service to----
    Ms. Griswold. Thank you.
    Ms. Speier. --our country.
    Ms. Griswold. I thank you for your interest in this issue. 
It's certainly one near and dear to our hearts as well.
    Mr. Lankford. Well, it's near and dear to a lot of people 
in our district that not only want to deal with the fraud and 
waste, and the loss, and the improper payments, which is 
important to everyone, including everyone on this dais, but 
also to providers that absolutely firmly, intensely hate the 
RAC audit process. And when they go through it, and there is a 
signature in the wrong place or a date in the wrong spot, and 
they just want to get it resolved, it now takes 3 years to get 
it resolved at times. So it goes from their frustration about 
RAC to the frustration about getting an obvious solution that 
doesn't help any of us. So finding alternative solutions like 
what you're proposing on the settlement process, that they 
could go through that process, if they don't like it--is what 
it sounds like to me, if they don't like what happens in the 
settlement, they still are in the queue to be able to resolve. 
Is that correct, or do they leave?
    Ms. Griswold. No. They are absolutely in the queue.
    Mr. Lankford. Okay.
    Ms. Griswold. And there's nothing mandatory about that----
    Mr. Lankford. Right.
    Ms. Griswold. --settlement process. You know, at any point, 
they can exit the process.
    Mr. Lankford. They just want an answer. So that's very 
important----
    Ms. Griswold. And they're entitled to an answer.
    Mr. Lankford. They are.
    Ms. Griswold. I realize that.
    Mr. Lankford. They are. So that's a key thing, so if you're 
working on processes to do that, thank you. Continue to press, 
and if there are ways that we can help in the process, because, 
as Mrs. Speier has mentioned, bringing on more ALJs is not 
going to solve this. There's no way you're going to get 400 
more ALJs, so there has to be another solution into this to be 
able to determine how do they get answers.
    Part of this, we understand well, is on CMS. You should not 
have the number get to you that is getting to you. So if you 
have a--and I'm looking at these percentages, and I know we've 
kicked around numbers on it, but let me just mention this one 
other number on it. When I look at the percentages, I pull out 
the remanded, because those are coming back; that's a different 
number. I pull out dismissed, because they're not even getting 
to you, that's not there. And the other I can pull out.
    When I look at that fully favorable and partially favorable 
just for Part A, and I'm aware of the other numbers, that's 
showing a 65 percent either a fully favorable or partially 
favorable resolution for them if they get to you. That's 
telling me the job is not getting done on the CMS side.
    You should not have that high of a percentage of overturn 
getting to you. There's something being missed. So part of the 
issue is we've got to press on CMS to get some of these things 
resolved before they ever get to you so you don't have a 
backlog this high. Just statistically you shouldn't have a 65 
percent overturn rate to be able to get to you. So that's not 
on you, but I'm just saying publicly there are issues on the 
previous two that we've got to get resolved in the days ahead.
    Any other comments?
    Thank you as well for spending the day, and we apologize 
for the long delay in the middle of a recess.
    With that, we are dismissed.
    Ms. Griswold. Thank you.
    [Whereupon, at 5:05 p.m., the subcommittee was adjourned.]


                                APPENDIX

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               Material Submitted for the Hearing Record
               
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