OMHA Releases Details on Long-Awaited Settlement Conference Facilitation Expansion

Settlement Conference Facilitation (SCF) is an alternative dispute resolution process which provides appellants and the Center for Medicare and Medicaid Services (CMS) an opportunity to discuss a mutually agreeable resolution for claims appealed to the Administrative Law Judge (ALJ) or Medicare Appeals Council (Council) levels of appeal. SCF is a one-day mediation, in which an OMHA facilitator assists the appellant and CMS in negotiating a lump-sum settlement on eligible claims, without making official determinations of fact or law.

OMHA has modified the program’s eligibility criteria for appellants and appeals under the new expanded program, which was officially released June 15, 2018. For appellants, any Medicare Part A or Part B provider or supplier (with an assigned National Provider Identifier number) is eligible for participation, so long as that provider or supplier has not filed for bankruptcy or expects to file for bankruptcy in the future; does not have past or current False Claims Act litigation or investigations against them or other program integrity concerns such as civil, criminal or administrative investigations; and has either: (1) 25 or more eligible appeals pending at OMHA and the Council combined, or (2) less than 25 eligible appeals pending at OMHA or the Council and at least one appeal has more than $9,000 in billed charges.

The updated appeals eligibility criteria are as follows:

Appeals must involve requests for ALJ hearing or Council review filed on or before November 3, 2017;
The request(s) for ALJ hearing or Council review must arise from a Medicare Part A or Part B Qualified Independent Contractor (QIC) reconsideration decision;
All jurisdictional requirements for OMHA or Council review must be met for the eligible appeals;
All pending OMHA and Council appeals associated with a single NPI and corresponding Provider Transaction Access Number (PTAN) must be included in SCF;
Appeals must not be scheduled for an ALJ hearing and an ALJ hearing must not have been conducted;
The billed amount of each individual claim must be $1,000,000 or less. For the purposes of a statistical sample, the extrapolated overpayment amount stated in the initial demand notice must be $1,000,000 or less.
- Settlement agreements with individual claims, or extrapolated overpayments, of $100,000 or less will be fully executed when CMS and the appellant sign the settlement agreement.
- Settlement agreements with any individual claims, or extrapolated overpayments, in excess of $100,000 (and up to $1,000,000) will be subject to U.S. Department of Justice (DOJ) approval prior to full execution by CMS and the appellant.
Appeals must not be involved in OMHA’s Statistical Sampling Initiative;
Appeals must not be actively engaged in a CMS Medicare appeals initiative made available on or after November 3, 2017 (i.e. the Low Volume Appeals Settlement, the QIC Demonstration Project, or the CMS Serial Claims Initiative);
The beneficiary must not have been found liable for the amount in controversy after the initial determination or participated in the reconsideration;
Appeals must not involve items, services, drugs or biologicals billed under unlisted, unspecified, unclassified or miscellaneous healthcare codes;
Appeals must not involve payment disputes;
- Appeals arising from down coding of claims are eligible for SCF.
Appeals must not arise from a QIC or ALJ dismissal order; and
Appeals must not be beneficiary-initiated appeals of QIC reconsiderations or any appeals arising from Medicare Part C, Part D or appeals of Social Security Administration decisions regarding entitlement, Part B late enrollment penalties, and Part B and Part D income-related monthly adjustment amounts (IRMAA).

All appeals eligible for SCF must be included. Appellants may not select some SCF eligible appeals for settlement and others for ALJ hearing or Council review.

Under the expanded SCF program, appellants with appealed claims that have billed amounts of $100,000 or less or appeals of an extrapolated overpayment that is $100,000 or less will be offered an “SCF Express” settlement offer. The SCF Express offer is non-negotiable and will not be based on a medical review of an appellant’s eligible appeals. If an appellant rejects the SCF Express settlement offer, the appellant can proceed to the SCF facilitation, through which CMS and the appellant can negotiate a mutually agreeable settlement of the eligible appeals.

For over 30 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters. Wachler & Associates has participated in many successful settlement negotiations on behalf of health care providers under the SCF program. If you or your health care entity needs assistance in pursuing the expanded SCF program or appealing Medicare claim denials, or you have any questions relating to the expanded SCF program or Medicare appeals process generally, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.