[Federal Register Volume 85, Number 3 (Monday, January 6, 2020)]
[Notices]
[Pages 510-512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28504]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
[OMHA-1903-N]
Medicare Program; Administrative Law Judge Hearing Program for
Medicare Claim and Entitlement Appeals; Quarterly Listing of Program
Issuances--July Through September 2019
AGENCY: Office of Medicare Hearings and Appeals (OMHA), HHS.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This quarterly notice lists the OMHA Case Processing Manual
(OCPM) instructions that were published from July through September
2019. This manual standardizes the day-to-day procedures for carrying
out adjudicative functions, in accordance with applicable statutes,
regulations, and OMHA directives, and gives OMHA staff direction for
processing appeals at the OMHA level of adjudication.
FOR FURTHER INFORMATION CONTACT: Jon Dorman, by telephone at (571) 457-
7220, or by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Office of Medicare Hearings and Appeals (OMHA), a staff
division within the Office of the Secretary within the U.S. Department
of Health and Human Services (HHS), administers the nationwide
Administrative Law Judge hearing program for Medicare claim;
organization, coverage, and at-risk determination; and entitlement
appeals under sections 1869, 1155, 1876(c)(5)(B), 1852(g)(5), and
1860D-4(h) of the Social Security Act (the Act). OMHA ensures that
Medicare beneficiaries and the providers and suppliers that furnish
items or services to Medicare beneficiaries, as well as Medicare
Advantage organizations (MAOs), Medicaid State agencies, and applicable
plans, have a fair and impartial forum to address disagreements with
Medicare coverage and payment determinations made by Medicare
contractors, MAOs, or Part D plan sponsors (PDPSs), and determinations
related to Medicare eligibility and entitlement, Part B late enrollment
penalty, and income-related monthly adjustment amounts (IRMAA) made by
the Social Security Administration (SSA).
The Medicare claim, organization determination, coverage
determination, and at-risk determination appeals processes consist of
four levels of administrative review, and a fifth level of review with
the Federal district courts after administrative remedies under HHS
regulations have been exhausted. The first two levels of review are
administered by the Centers for Medicare & Medicaid Services (CMS) and
conducted by Medicare contractors for claim appeals, by MAOs and an
Independent Review Entity (IRE) for Part C organization determination
appeals, or by PDPSs and an IRE for Part D coverage determination and
at-risk determination appeals. The third level of review is
administered by OMHA and conducted by Administrative Law Judges and
attorney adjudicators. The fourth level of review is administered by
the HHS Departmental Appeals Board (DAB) and conducted by the Medicare
Appeals Council (Council). In addition, OMHA and the DAB administer the
second and third levels of appeal, respectively, for Medicare
eligibility, entitlement, Part B late enrollment penalty, and IRMAA
reconsiderations made by SSA; a fourth level of review with the Federal
district courts is available after administrative remedies within SSA
and HHS have been exhausted.
Sections 1869, 1155, 1876(c)(5)(B), 1852(g)(5), and 1860D-4(h) of
the Act
[[Page 511]]
are implemented through the regulations at 42 CFR part 405 subparts I
and J; part 417, subpart Q; part 422, subpart M; part 423, subparts M
and U; and part 478, subpart B. As noted above, OMHA administers the
nationwide Administrative Law Judge hearing program in accordance with
these statutes and applicable regulations. To help ensure nationwide
consistency in that effort, OMHA established a manual, the OCPM.
Through the OCPM, the OMHA Chief Administrative Law Judge establishes
the day-to-day procedures for carrying out adjudicative functions, in
accordance with applicable statutes, regulations, and OMHA directives.
The OCPM provides direction for processing appeals at the OMHA level of
adjudication for Medicare Part A and B claims; Part C organization
determinations; Part D coverage determinations and at-risk
determinations; and SSA eligibility and entitlement, Part B late
enrollment penalty, and IRMAA determinations.
Section 1871(c) of the Act requires that the Secretary publish a
list of all Medicare manual instructions, interpretive rules,
statements of policy, and guidelines of general applicability not
issued as regulations at least every three months in the Federal
Register.
II. Format for the Quarterly Issuance Notices
This quarterly notice provides the specific updates to the OCPM
that have occurred in the three-month period of July through September
2019. A hyperlink to the available chapters on the OMHA website is
provided below. The OMHA website contains the most current, up-to-date
chapters and revisions to chapters, and will be available earlier than
we publish our quarterly notice. We believe the OMHA website provides
more timely access to the current OCPM chapters for those involved in
the Medicare claim; organization, coverage, and at-risk determination;
and entitlement appeals processes. We also believe the website offers
the public a more convenient tool for real time access to current OCPM
provisions. In addition, OMHA has a listserv to which the public can
subscribe to receive notification of certain updates to the OMHA
website, including when new or revised OCPM chapters are posted. If
accessing the OMHA website proves to be difficult, the contact person
listed above can provide the information.
III. How To Use the Notice
This notice lists the OCPM chapters and subjects published during
the quarter covered by the notice so the reader may determine whether
any are of particular interest. The OCPM can be accessed at https://www.hhs.gov/about/agencies/omha/the-appeals-process/case-processing-manual/index.html.
IV. OCPM Releases for July Through September 2019
The OCPM is used by OMHA adjudicators and staff to administer the
OMHA program. It offers day-to-day operating instructions, policies,
and procedures based on statutes and regulations, and OMHA directives.
The following is a list and description of OCPM provisions that
were issued or revised in the three-month period of July through
September 2019. This information is available on our website at https://www.hhs.gov/about/agencies/omha/the-appeals-process/case-processing-manual/index.html.
General OCPM Updates
OMHA reorganized its Program Evaluation and Policy Division and
Field Operations Division into two branches of a new Appeals Policy and
Operations Division. References to the prior division names in OCPM
chapters 6, 7, 11, 18, and 20 were updated to reflect the change in
OMHA's organizational structure.
CMS's final rule entitled ``Medicare Program; Changes to the
Medicare Claims and Medicare Prescription Drug Coverage Determination
Appeals Procedures'' was published in the May 7, 2019 Federal Register
(84 FR 19855) with an effective date of July 8, 2019. This final rule
made a number of changes to help streamline the appeals process and
reduce administrative burden, and to help ensure the regulations are
clearly arranged and written to give stakeholders a better
understanding of the appeals process. Among other things, these
regulations corrected and clarified cross references, definitions, and
terminology. To implement these changes, revisions were made to
footnotes and citations in OCPM 9.3.6.1, 11.3.6.3, 17.1.5, 17.1.5.3 and
17.2.2.
OCPM Chapter 4: Parties--Section 4.4.1.1
This chapter was initially released on March 29, 2019, and was
included in a quarterly notice published in the May 3, 2019 Federal
Register (84 FR 19086). Section 4.4.1.1 of this chapter states that a
Unified Program Integrity Contractor (UPIC) cannot elect party status
in an appeal, and may only participate as a non-party. As initially
published, this section cited to CMS's Medicare Program Integrity
Manual (MPIM), internet-only manual publication 100-08, chapter 4,
section 4.8.2, which previously stated that a Zone Program Integrity
Contractor (ZPIC) could not elect party status in an appeal, and
section 4.1, which stated that all references to ZPICs shall also apply
to UPICs, unless otherwise specified in the UPIC Statement of Work
(SOW). Effective October 22, 2018, CMS revised the MPIM to directly
state that a UPIC cannot invoke party status, and can only participate
in OMHA proceedings as a non-party. This revision to OCPM 4.4.1.1
updates a footnote in this section to reflect the CMS manual's revised
language. This revision does not change the way that OMHA interprets or
implements the underlying policy that a UPIC cannot elect party status.
OCPM Chapter 5: Representatives--Section 5.2.1.2
This chapter was initially released on July 27, 2018, and was
included in a quarterly notice published in the November 14, 2018
Federal Register (83 FR 56859). Section 5.2.1.2 of this chapter lists
the required elements for a valid appointment of representative. This
revision updates the required elements in accordance with revisions to
42 CFR 405.910(c) that became effective on July 8, 2019 (84 FR 19857
through 19858), and corresponding updates to CMS's Medicare Claims
Processing Manual (MCPM), internet-only manual publication 100-04,
chapter 29, section 270.1.2.
OCPM Chapter 6: CMS, CMS Contractor, and Plan Roles--Sections 6.5.3.1,
6.5.4.1, 6.5.10, 6.7.3.1, 6.7.3.3, 6.7.4
This chapter was initially released on July 27, 2018, and was
included in a quarterly notice published in the November 14, 2018
Federal Register (83 FR 56859). Section 6.5.3.1 of this chapter
previously stated that in a Part A, Part B, or Part C appeal, CMS or a
CMS contractor may elect to be a party or non-party participant no
later than 10 calendar days after ``receiving the notice of hearing.''
This revision implements changes to 42 CFR 405.1010(b)(3)(ii) and
405.1012(a)(1) (84 FR 19862), and clarifies that the notice of hearing
may be received by the Qualified Independent Contractor (QIC) or
another contractor designated by CMS to receive the notice of hearing.
Section 6.5.4.1 of this chapter is revised to clarify that CMS has
designated the Administrative Qualified Independent Contractor (AdQIC)
to receive notices of hearing. Sections 6.5.10 and 6.7.4 of this
chapter previously stated written CMS or contractor elections and
requests and evidentiary submissions must be sent to the parties who
were sent a copy of the
[[Page 512]]
reconsideration, if no hearing has been scheduled; or the parties who
were sent a copy of the notice of hearing, if a hearing has been
scheduled. This revision implements changes to 42 CFR 405.1010(b)(1)
(84 FR19862), and identifies the copy requirement for appeals where an
appeal has been escalated to OMHA, but has not been scheduled. Sections
6.7.3.1 and 6.7.3.3 of this chapter are revised to clarify that an
attorney adjudicator may also grant additional time for submissions.
OCPM Chapter 9: Request and Correspondence Intake, Docketing, and
Assignment--Section 9.3.4
This chapter was initially released on February 1, 2019, and was
included in a quarterly notice published in the May 3, 2019 Federal
Register (84 FR 19086). Section 9.3.4 of this chapter describes how
OMHA appeal numbers are assigned for new appeals. This revision adds a
note clarifying that if a single request for hearing or review
identifies more than one reconsideration number, OMHA will process each
reconsideration number as a separate request for purposes of assigning
appeal numbers, but will assign the appeals to the same adjudicator to
the extent possible for administrative efficiency.
OCPM Chapter 14: Scheduling and Noticing for Prehearing Conferences and
Hearings--Sections 14.5.4, 14.6.7.4
This chapter was initially released on September 28, 2018, and was
included in a quarterly notice published in the November 14, 2018
Federal Register (83 FR 56859). Section 14.5.4 is revised to clarify
that CMS has designated the AdQIC to receive notices of hearing.
Section 14.6.7.4 of this chapter describes when the hearing format may
be changed. Previously, this section stated that if a party other than
an unrepresented beneficiary who filed a request for hearing requests a
VTC hearing or in-person hearing, concurrence of the Associate Chief
ALJ was necessary to grant the request. This revision clarifies that
the concurrence of the Associate Chief ALJ is only required to grant a
request for an in-person hearing.
OCPM Chapter 18: Requests for Information and Remands--Sections
18.1.1.2, 18.1.5, 18.1.7.2, 18.2.2, 18.4.3
This chapter was initially released on November 30, 2018, and was
included in a quarterly notice published in the January 31, 2019
Federal Register (84 FR 763). Sections 18.1.1.2 and 18.1.5 of this
chapter describe how an OMHA adjudicator may issue a request for
information if he or she believes that the written record is missing
information essential to resolving the issues on appeal. This revision
clarifies that a request for information may be made for an official
copy of a dismissal of a request for redetermination or
reconsideration. Section 18.1.7.2 of this chapter lists actions an OMHA
adjudicator may take if the missing information is not submitted within
the applicable time frame. This revision added a note that a remand is
authorized when the entity that conducted the reconsideration does not
respond to a request for a case file, or does respond but is unable to
furnish the requested case file. This note further states that case
file requests are not requests for information made under 42 CFR
405.1034(a) or 423.2034(a). Rather, as discussed at 84 FR 19866, they
are made in accordance with joint operating procedures between OMHA and
the entity that conducted the reconsideration. Section 18.2.2 of this
chapter explains that if the missing information is not provided, an
OMHA adjudicator may remand the appeal. This revision clarifies that if
an official copy of a dismissal of a request for redetermination or
reconsideration is not received, an OMHA adjudicator may issue a remand
to the entity that conducted the reconsideration, or its successor, to
reconstruct the record or, if unable to do so, initiate a new appeal
adjudication. Section 18.4.3 of this chapter explains the circumstances
under which a remand may be reviewed. This revision clarifies that a
remand issued because an official copy of a dismissal of a request for
redetermination or reconsideration or case file cannot be obtained from
the QIC may be subject to review by the Chief ALJ or designee in
accordance with revisions to 42 CFR 405.1056(g) and 423.2056(g) that
became effective on July 8, 2019 (84 FR 19866).
OCPM Chapter 20: Post-Adjudication Actions--Sections 20.7.1.3,
20.7.5.6, 20.7.7.3, 20.8.4, 20.8.5.6, 20.8.6.1, 20.8.7.2, 20.11.4
This chapter was initially released on May 25, 2018, and was
included in a quarterly notice published in the August 7, 2018 Federal
Register (83 FR 38700). Sections 20.7.1.3 and 20.7.5.6 of this chapter
previously stated a dismissal may be vacated within 6 months of the
date of the notice of dismissal. This revision updates the time frame
from 6 months to 180 calendar days in accordance with revisions to 42
CFR 405.1052(e) and 423.2052(e) that became effective on July 8, 2019
(84 FR 19857). Section 20.7.7.3 of this chapter updates the form number
for the Order Vacating Dismissal from OMHA-180 to OMHA-181. Section
20.8.4 of this chapter is revised to clarify that a request for review
of a remand may only be filed with OMHA Central Operations. Section
20.8.5.6 of this chapter is revised to clarify that requests for a copy
of administrative records are made directly through OMHA Central
Operations. Section 20.8.6.1 of this chapter removed an incorrect
statement that an OMHA adjudicator must make a request for information
before issuing a remand for a missing case file. The remand order is
authorized under 42 CFR 405.1056(a)(2). Chapter 20.8.7.2 of this
chapter is revised to clarify that the re-established appeal number is
used with the Notice of Vacated Remand and Order Vacating Remand.
Chapter 20.11.4 of this chapter describes how an adjudicator responds
to a Council remand order for missing evidence or information.
Previously, this section stated that if the adjudicator is able to
furnish the requested evidence or information, the complete
administrative record was returned to the Council at the address
specified in the Council's remand order. This revision states the
records shall be returned to the Council at the address specified in
OCPM 19.1.2.
Dated: December 31, 2019.
Karen W. Ames,
Executive Director, Office of Medicare Hearings and Appeals.
[FR Doc. 2019-28504 Filed 1-3-20; 8:45 am]
BILLING CODE 4150-46-P