Finally, Time to Have Our Case Heard by an Administrative Law Judge. What Should I Expect?

(February 1, 2010):  Over the years, our attorneys have argued cases before Administrative Law Judges (ALJs) working out of each of the Office of Medicare Hearings and Appeals field offices around the country.  Based on our collective experience, we believe that this level of appeal is a health care provider’s best opportunity to present its arguments in support of payment in an administrative overpayment cases.  While each ALJ operates his / her hearing in a slightly different fashion, we have found each of  the Judges we have practiced before to be highly experienced, fair and more than willing to hear our Client’s side of the story.  That’s the good news.

The bad news is that it can take years before a case is finally heard.  That’s not the fault of the Judge – it’s just the way the system is structured. In order to meet the jurisdictional requirements, at least $130 (this is a new jurisdictional amount starting  in 2010) must remains in controversy following the Qualified Independent Contractor’s (QIC’s) decision.  A health care provider (or their representative) must request an ALJ hearing within 60 days of receipt of the QIC’s reconsideration decision. Appellants must send notice of the ALJ hearing request to all parties to the QIC for reconsideration.  Always keep in mind that the Court will be conducting a “de novo” review.  Moreover, the Court isn’t bound by lower decisions, even if they were in your favor.

It is essential that requests for ALJ hearing be filed in a timely fashion.  It is extraordinarily difficult to show “good cause” for a late filing.  While the ALJ will assume that the QIC decision was received 5 days after the date of the date decision (effectively giving an appellant 65 days from the date of the QIC decision letter), it is prudent to ignore the 5 day mailing allowance and ensure that a request for ALJ hearing is received within 60 days of the QIC decision letter.  Moreover, requests for ALJ hearing should only be sent by mail that can be tracked so that timely receipt can be verified.  Don’t forget, FedEx and UPS do not typically deliver to a P.O. Box address.  Be prepared to use U.S. Postal Service’s overnight express.

ALJ hearings are generally held by video-teleconference or by telephone. Depending on the size of the case and other factors (such as the ability of your Client to fully explain medical or scientific evidence by teleconference), you may desire to request an in-person hearing.  In order to justify the need for an in-person hearing, you will be required to show “good cause.”  The decision of whether or not to grant an in-person hearing rests with the ALJ.  Whenever possible, we typically present our Client’s arguments in support of payment by teleconference.  We have found this approach to be both cost-effective and convenient for our clients and the Court.

In some cases (where no live testimony is needed, the record is well documented and the amount in controversy is low – typically less than $1,000), we have asked the Court to conduct its review on the record, without conducting a hearing.

In the last few years, we have seen a dramatic increase in the number of hearings attended by representatives of the Program SafeGuard Contractor and / or the QIC.  More often than not, they identify themselves as “participants” rather than as a “party.”  This typically occurs in cases involving the statistical extrapolation of alleged damages.

The Court will usually issue its decision within 90 days, although this time period is often waived in order to give the Court ample time to consider the issues presented.

Should you disagree with the ALJ’s decision, you may appeal it to the Medicare Appeals Counsel.

Should you have any questions regarding these issues, don’t hesitate to contact us.  Liles Parker attorneys have represented a wide variety of health care providers around the country in ALJ appeals and hearings.  We have the knowledge, skills and abilities to persuasively present your case.  For a complementary consultation, you may call us  at: 1 (800) 475-1906.