[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]


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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.

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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

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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

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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