By Christi LeBlanc, MBA, RHIA, and Tina Bruce, MSHIM, MHI, RHIA, CCS, CDIP
Many health information (HI) professionals are faced with the appeal burdens placed on their healthcare organizations. This article will provide you with an overview of the administrative law judge (ALJ) hearing process, provide details that can guide industry professionals through this rigorous appeal process, and offer tips to help overturn lower level appeal decisions.
ALJs are autonomous judges who distribute conclusions below many federal rulings. Precisely, under the Administrative Procedure Act (APA), the ALJ is responsible for leading public hearings like typical court cases in the courts of law. ALJ tasks include setting deadlines; holding hearings; gathering written statements, reports, and affidavits; scheduling conferences; issuing subpoenas; ruling on party motions; and announcing decisions. Healthcare organizations, physician practices, and many acute care facilities are faced with denials without the additional employees or manpower to work through the appeals and reconsideration process. However, the hearing process isn’t difficult if the appropriate steps are taken and followed during the appeals process. Many appeals specialists are familiar with working through the appeals process, but more times than not, they do not have the opportunity to see the process through to the ALJ hearing final decision, which may include reconsideration and payment.
Deciding a Case Without a Hearing
The ALJ hearing is a process where a hearing can be requested before an administrative law judge when the appeals expert disagrees with the reconsideration decision. Under 20 CFR § 416.1448, deciding a case without an oral hearing before an administrative law judge, there are three basic circumstances where an ALJ can decide without holding a hearing. The first context arises when the decision is “fully favorable.” In other words, if the documentation provided in the hearing record supports the case submission on every issue, the ALJ could issue their verdict based on a majority of the indication without holding a hearing. In these cases, the notice of the result will still elucidate that healthcare organizations have the right to a verbal hearing and the right to examine the evidence that the ALJ based their decision upon.
The next option or type of request is where both parties elect not to appear. This segment can be relied upon when either: 1) all the parties specify in writing that they do not request to appear before the ALJ at an oral hearing or 2) live outside the United States, do not advise the ALJ that representative wishes to appear at the hearing, and none of the other parties wish to appear. The decision of the ALJ in these cases is based on the record of the material evidence presented by the parties in writing.
The final option or type of request by which an ALJ can deliver a verdict without holding a hearing transpires when the case is returned for a revised determination. For instance, the ALJ could return the case submission if they have motive to believe that such modification would be favorable to the healthcare organization (unless any objections are made by which the ALJ must then rule upon).
Pursuing an ALJ Appeal
There are certain things to consider when deciding to pursue an ALJ appeal. In many cases, it is important to pursue an ALJ appeal because it could equate to a win for the healthcare organization you are representing. First, the timeline to request an appeal is 60 days from the date of the Qualified Independent Contractor (QIC) reconsideration or decision letter. For appeals filed in calendar year 2021 and 2022, the minimum Amount in Controversy (AIC) requirement for review by an ALJ hearing or review of a dismissal is $180. For reconsiderations issued by the Quality Improvement Organization (QIO), the minimum amount of controversy is $200. The AIC requirement is recalculated and published each year and is identified in the reconsideration or redetermination letter. Once the AIC has been determined or identified, it’s important to consider the resources, time, production hours, and process management involved to follow through with the appeal to determine if appeal should be pursued. In many cases, it is worth the additional efforts to pursue because the healthcare organization tends to have a favorable decision provided that all supporting evidence is submitted for review during this process.
Submit a Request
Once you have decided to pursue the ALJ level of appeal, you will need to prepare and submit a Request for ALJ Hearing or Review of Dismissal Form. You will note on this form whether you are requesting a hearing or an on-the-record decision. An on-the-record decision means that you will submit some sort of documentation such as a brief, declaration, or position paper for the judge to read in lieu of testifying in a hearing. If you decide to ask for an on-the-record decision, you will need to submit your documentation along with the request form and include the information outlined in the next section regarding preparation for testimony/paper.
Prepare for Testimony
The next step is to prepare for testimony, either verbally for a hearing or in writing via a brief, declaration or position paper. Review all the lower level contractor documents—initial review results letter, any discussion period correspondence, level 1 decision, and level 2 decision—to ensure you appropriately understand the issue(s) and address those during ALJ appeal.
Thoroughly review the record and note all of the documentation that supports the code(s)/ diagnosis-related group (DRG) in controversy. It is important to note that no new information may be added at this level of appeal without a good cause argument. All portions of the record, previously written queries with physician responses, and any other supporting documents that you will use in you brief or testimony must have been submitted no later than level 2 (reconsideration).
After you have noted all the supporting documentation in the record, you will want to cite all applicable official resources that support the code(s) and/or sequencing in question. This would include AHA Coding Clinic® for ICD-10-CM and ICD-10-PCS, ICD-10-CM Official Guidelines for Coding and Reporting, CPT® Assistant, and AHA Coding Clinic® for HCPCS pertinent to the case at hand. Do not use any internal facility policies/procedures/processes to support your code decisions, as these are not official sources.
If you opted to provide testimony in a hearing, you will receive a Notice of Hearing usually within 20 days of the hearing date. This will provide you with the name of the ALJ who will be hearing the case, the date and time of the hearing, and the call-in information. You should also receive a copy of the Notice of Appearance from any contractors who are opting to appear, or a position paper of some sort they may write to defend their stance in lieu of attending the hearing. This allows you the opportunity to review and include additional information to address their argument during the hearing.
Now it’s time to attend the hearing and provide testimony, here are some tips on what to expect during a hearing. The judge will usually ask all parties to say and spell their name and provide their job title. Then they will start the formal portion of the hearing by beginning the recording and providing some brief legal information regarding the case at hand. This will include a list of exhibits, which would include the medical record and all correspondence from the lower levels of appeal. The judge will then ask you to introduce yourself for the record and swear you in. After the formalities, typically you will be given the opportunity to provide your testimony. You may want to give a brief history of your coding background to establish, on the record, your qualifications for being an expert witness. Include the number of years in the coding field, types of coding jobs you have held, credentials, and any other pertinent education or qualifications that you may have related to coding.
Next, you can plead your case. Be thorough and explain why the coding was correct. Walk through the documentation in the record that supports the code(s) in controversy—give the document name, the date it was written, etc.; discuss any coding guidelines and coding conventions that pertain to the condition/procedure in question; and include any relevant information from the ICD-10-CM/PCS Tabular List or Alphabetic Index that may also illustrate your points.
After your testimony, the judge may or may not have specific questions for you about the record or coding guidelines. Be prepared to answer those and even describe what the documentation in the medical record may look like if they are having trouble finding the appropriate pages. If someone from the Centers for Medicare and Medicaid Services contractor also appears for the hearing, they will have the opportunity to provide testimony on their stance and/or ask you questions related to the case. You will also be given an opportunity for rebuttal after the contractor’s testimony if you need to refute anything that they stated. Sometimes the judge may ask you to send copies of coding guidelines or pages of coding books after the hearing in order for them to have the actual copies for reference when rendering their decision. If this occurs, they will typically leave the record open for a few days to allow time to fax to their office. The judge will then adjourn the hearing.
After the hearing, you can expect to receive the judge’s decision in writing. This could take weeks, months, or even a year or more, depending on the judge. It is recommended that you keep a log of some sort on the cases that you take to level 3 appeals so that you can follow up on the status of the decisions. The Office of Medicare Hearings and Appeals (OMHA) has a website that you can utilize to pull up cases to see the status. You will need either the OMHA Appeal Number or the Medicare Appeal Number from the Reconsideration level of appeal. This number is written in the format of either 1-############## or 3-##############.
A Worthwhile Process
In any instance, the process can seem daunting to industry appeals specialists because it involves working through an administrative judicial type process. However, breaking down the different steps, reviewing the reconsideration or denial letter, locating and providing supporting evidence, and ensuring the representative clearly demonstrates and submits supporting evidence ensures an opportunity to overturn a case in the healthcare organization’s favor. In today’s healthcare industry, organizations should pursue this level of appeal when the medical record documentation supports a favorable decision.
Christi LeBlanc is a senior coding compliance consultant with HCA Healthcare.
Tina Bruce is a coding educator with Ensemble Health Partners.
By Christi LeBlanc, MBA, RHIA, and Tina Bruce, MSHIM, MHI, RHIA, CCS, CDIP