Administrative law judges (ALJ’S) at the Office of Medicare Hearings and Appeals conduct most of their hearings by telephone conference. All too often an appellant would answer, saying “I forgot about the hearing” or “No one told me the hearing was today.” You can start on the right foot by beginning your hearing preparation the day you treat your patient, or – if you are the representative – the day you get the first denial notice from the Medicare (CMS) contractor.
Preparation includes knowing the regulations governing ALJ Medicare hearings, which start at Part 42 of the Code of Federal Regulations (CFR) section 405.1000. The regulations specify what the ALJ must do, what evidence comes in (42 CFR sections 405.1018 and 405.1028), and most important for appellants, what a CMS contractor must do to participate (42 CFR sections 405.1010 and 405.1012).
Why do you need to know what a contractor has to do to participate? Recall what Tom Skerrit’s Top Gun character Viper told the Navy Officers: “This school is about combat. There are no points for second place.” The decision depends on what’s in the record and what happens at your hearing. If you let CMS participate when it didn’t give proper notice, or allow a nonparty to offer opinion testimony, you might be setting yourself up for a second place finish.
Appellants who have read the regulations know what to do if they plan to offer new evidence, and when they need to do it (42 CFR 405.1028). Preparation includes reading any Local Coverage Determination (LCD) that applies to your case. The denial notice almost always recites the LCD, and you can look it up on the Internet.
The prepared appellant knows that ALJ’s who hear Medicare cases conduct de novo (from the beginning, afresh) hearings, 70 Fed. Reg. 36386 (June 23, 2005). This means the appellant has the burden of proof and must establish that the medical records / patient notes support payment. Savvy appellants and representatives understand that ALJ’s hearing Medicare cases do not sit in appellate jurisdiction and therefore do not “overturn” or “uphold” the Qualified Independent Contractor (QIC) or Recovery Audit Contractor’s (RAC) decision.
Preparation includes reading the contractor’s decision and the QIC’s denial, and reading the entire Notice of Hearing, including any Standing Order the ALJ’s assistant enclosed with the hearing notice. Because OMHA policy prohibits ALJ’s from changing the notice, many added a Standing Order and Addendum to the Notice of Hearing that tells how long your hearing might last, when to submit your pre-hearing brief, etc. The ALJ hearing your case will expect you to have read the notice and be prepared to discuss the issues recited in the Notice of Hearing.
Your preparation begins the day you get the denial notice. In his book Outrage[1], and during a 1995 CLE presentation to the San Diego County Bar Association that I had the privilege of attending, former prosecutor Vincent Bugliosi criticized what he described as the prosecution’s late preparation for its closing argument in the O.J. Simpson trial[2].
How do you start preparing for your hearing? Think about what you want to tell the ALJ. Begin with a one-minute “elevator pitch” that concisely says how the record shows you met the requirements of the regulation or LCD. Then rehearse your presentation. Practice makes perfect. Be better. Be prepared.
