at omha. although i'll workload the omha have experienced rapid growth, a significant portion of the increase is a consequence to the departments efforts to implement legislation assigned to combat medicare fraud and reduce improper payments. the department is committed to crafting solutions which will bring the doctor and the resulting appeal were quoted resulting appeal workload into balance. we look forward to working with this committee and with their stakeholders to develop and implement the solutions. thank you for your time and can turn. >> chair recognizes dr. gosar. >> thank you, mr. chairman. this is griswold, can you walk us through the bible both of the appeal process? >> yes. the first two levels are conducted at cms. they are administered by cms and cms's contractors. the third level is at the office of medicare hearings and appeals and is conducted by

administrative law judges. the fourth level is that the medicare appeals council, which is part of the departmental appeals board and is also a separate agency within health and human services. the final level is with the federal district court. >> can you describe the different types of appeals held by the alj? >> yes, we hear both part a and part be appeals under medicare and we also hear the part he appeals as part of our original charge. the prescription drug appeals. we hear appeals on entitlement. we also hear the part b medicare advantage appeals. >> in percentage of those, which you hear most often those appeals for aljs? >> well come in various. in recent years a pretty significant number of appeals in part a, which is the acute care

hospital appeals. >> and those that have been -- would you say 30, 40, 50% of the time with the alj workload? >> i can get you that number. hold on just one minute. >> trends help you out, being a health care provider you always look at trends about what is happening. so it gives you a workload basis of which two delegate resources two. >> most of our recovery audit appeals have been part part a and you can kind of use that as a gauge. in 2014, 41.2% -- and sorry. at the wrong number in there. 54.2% to date for recovery audit appeals and those are predominantly part a appeals.

>> so, according to hhs, office of inspector general 2010, 56% of the appeals were fully favorable to the appellate or reverse previous lower-level decision. what is the current rate by >> are you at in about a rac decisions, the rac appeals are just overall ocrs? all right. in 2014, the fully favorable otr rates for the fiscal year to date is 19.3%. >> not yet. back now, has omha conducted an analysis on what factors are driving this club? you made mentions of a few of them, but i would like to be a little more specific.

>> there a number of things. all the workloads are growing up. we track are traditional workload, which is the part abie workload. we've also been tracking the rac workload and attract the dual eligible workload. all three of those have been going on for. the traditional workload has been driven largely partly with demographics. they are more beneficiaries who are utilizing more services. it has also been driven by increases in cms audit efforts. they are improper payments. anything that results in more denials at lower levels is going to result in more appeals at the alj level. of course the recovery audit program is the one that gets a

lot of attention. it is a new program in 2010, so is a start up in the increase in receipts was of course i'm not it. that occurred primarily at our level between 2011 and 2013 when we saw the largest spikes in network workload. we've also seen increases in men's dual eligible workload, beneficiaries eligible for medicare and medicaid and those who are close have gone up as well. >> thank you. i yield back, mr. chairman. >> we're going to reserve or question so after voting. the chair would like to recognize mr. meadows for his question. >> thank you, mr. chairman. is it not true the initiator of your adjudicator on an annual basis, is that not true? >> it is true.

>> so you're actually more efficient by 20% if you really look at the real numbers that you're adjudicators are actually been a lot more efficient than they've ever been before. >> well, since 2009 are adjudicators have doubled productivity. >> right. >> so what we look it back, this is not a problem of administrative law judge just sitting back eating bonbons. >> now. >> all right. i think we can both agree on that. at this particular point, you've done your homework. he looked at previous hearings. would you say an estimate under our current rates right now based on the estimates potential backlog of a million cases within the budget assessment that we've got, that that is in eight to 10 year backlog to adjudicate them based on current

staffing and current workload. efficiency. >> i think it be to do simple math -- >> on a simple guy. >> divided by adjudicators, of course that is the number you come up with. it does not however take into account the efficiencies that we are putting in place the initiatives both at cms and within our pilot program. >> so granted, i saw a guy smiling face for your efficiency there. i see that in so i am encouraged by that. you are familiar with the fact the law says you are required to have a 90 day turnaround. that's the law. >> yes, that's the invasion of the 90 day processing. >> and are also familiar with the fact that the intent of congress was to have that 90 day turnaround.

>> yes. go ahead. >> i think that is part of way omha if you look back at the legislative history, that is part of why we're established in the first place was to do with processing delays in medicare that exist in social security. >> and you are familiar with the fact because the intent of congress is that, that there is a lot out there that authorizes you to take monies from other trust funds to do three things. our additional administrative law judges provide additional training and increased staff of the department of appeals board. those three things you are familiar with that. >> i think you're talking about the reprogramming authority? >> public law 10 hey-173 subtitle d. if your council would like to look at it. i've got a copy of it. go with that, even the budget

environment or request that you guys have made i guess require for additional seven units. is that correct quiet >> you are forcing the level to allow for seven additional aljs. >> what are we doing on 2015? >> the presidents budget for 2015 would give us an additional 17 payments. >> so i've done the simple math based on the president's budget based on where we are. as i get you to 90 days? >> no. >> does it get you to less than three years? the answer is no. >> well, the initiative -- i want to qualify that. if we're talking about giving current authorities and current funding, the answer is no. >> well, your request.

if the presidents request. so your request at this particular point, how many years that somebody has to pay for justice quiet >> i think -- >> 5.3 years? >> i think it is impossible at this point to really tan down how long they will have to pay. we do the math as an outside limit. >> underclothes with his band. how many businesses have to go out of business before we started fighting by the law? >> and 90 day time 90 day timeframe envisioned by congress. >> 90 day law. it is love. i can give you a copy. i need is love. >> have to play not in the statute we recognize that. there is a safety valve in that statute as well which i need to point out, which is the right to escalate claims.

>> so we just moved the 10 year backlog up to number four number five? that won't work either. have lifted their budgets. >> that is what the statute envisions. the interesting thing is people who have chosen not to escalate, this year we had 152 request today, which i believe indicates providers and suppliers are still finding value in our alj hearing process and choose to remain in the? >> so your recommendation is for all those watching here today to escalate claims of fairness 10 year backlog quite they can't imagine you would say that. no, it is an option for them. >> all right. i yield back. thank you for the patients of the chair. >> rerecorded take a recess. the votes have been called. we will recess until the conclusion of those. you will take somewhere around 30 minutes. maybe a little bit longer. they will go through them and

will reconvene at that time. [inaudible conversations] [inaudible conversations] >> i apologize for the delay with the votes. we do not expect them to enter up to since we are voting around 9:00. if we are still in our hearing at that time, this will be not a good sign. we don't anticipate that, but i do apologize for the 30 minute delay ended up being an hour in 20 before was all said and done. we will go back and forth here.

ms. speier, if you are a key with the number here, i am okay if we open up with questions. it's not all right with you? will turn clocks off and start addressing questions in no particular order. that way if you want to interrupt, you are free to do that to follow-up questions to any statements made. ms. griswold, changes are for my son. it will change yours. we typically do a structured vitamin a during our first round. our second round is more open process for any member can ask a question at any time. so if you make a statement, the member that has to the question is not limited to the one who follows. is that fair enough? will open my death. -- it doesn't change what is happening on your side at all. just a little bit on our process. i do have a question on the numbers you submitted to us on the recovery audit appeals work. % increase in the not recovery -- i want to go through a couple of these with you.

you left out on the disposition outcome rates fully favorable, partially favorable, unfavorable , romantic, dismissed another. can you give us a definition on what that means the provider for each of those in the process that happens fully favorable obviously it goes back to them partially favorable. there's a little bit of change they are. unfavorable they lost entirely but the previous two of po the fourth level at that point. it is partially favorable, what that means, remanded, dismissed another. >> are appeals consist generally of a number of claims that will be submitted with each appeal. so he partially favorable

decision would say some of these claims are payable and some of these claims are not payable. so that would be what that is. >> fully favorable if a provider comes to attend different cases in front of you they won all 10. and maybe another one that is another provider brings in 10 cases and they went seven of them are two of them. we don't know if they won 10 or one. >> exact way. >> unfavorable they lost all of them. >> we do have some authority to send cases back to the lower level or to the quick if there is information we need from them in the information is only available from cnn senate contract yours. so we can do some limited remand. >> party seems to be a high percentage of the remanded coming back. do we know what happens once they go back on the second level what occurs? >> actually with most of these they have come back to us and this large number was related to the part a.b. policy issue which was resolved by cms through rulemaking and so those are coming back to us.

>> help us understand the order they are. it went to the fourth level is that you. explain how that happened as this is the high number here. they are remanded in fully favorable and partially favorable combine. in these cases, many of the judges decided to revamp them. you know, there are basically questions about whether or not claims would be paid as impatience, claims under part a or whether they would be outpatient claims under part d. that was the basic issue. so in order to get, many of the judges felt they needed additional information to make that decision and they sent these claims back to the lower level to get that information. what has happened as a result of cms is rulemaking in these cases

are actually going to be coming back to us and i think they have come back to us. >> okay, so they are remanded. the additional detail is now coming back to you. how does that show up in our statistics? a very high percentages dismissed its hard to tell what's going on. >> imago double count them. they don't recount into our receipt bubbles and they do come back to us. because they are not fully disclosed. the cases are still needed an adjudication on our level. so when they come back to us, we adjudicate them within the process and then we send them on. they either get paid or they don't get paid to make it appeal. >> okay, i'm still trying to track this back onto the first two levels of cms. they come to you.

there's not information you need, whatever it may be. you are remanded back to cms. they get additional information that comes back to you again? >> yes. >> one, two, three, four, five level so far. five different events of the first through levels. they are coming back to you again and then i should look at this is basically the same percentage between fully favorable, parse the favorable and unfavorable than what you are saying it not double counted. >> no, it's not a double count. >> when it comes back again, i should expect something similar to this percentage coming back? from trying to find out what is remanded for the more likely to be found favorable or unfavorable when it comes back after being remanded quiet >> are we men doesn't predispose it to any disposition when it comes back. when it comes back to us, we

adjudicate all other claims and we will have a hearing on it to make a decision. >> this is somewhere around 60%, 65% on fully favorable when they are coming to you. about the same percentage coming back again. once they are remanded, basically they are very, very persistent hard to please come a pretty good chance they'll become fully favorable. >> of percentages hold true, you can use those to read man's. >> is approximately how long because the first time they have consumed three or as you then it goes back to cms i will remind, whether or a.b. and then they may get another career for years to get back in line to get back to you.

.. in bulk. so these are already back in the queue. but as far as how long that is, that's a number had to get back with you on. >> that's what we're trying to figure out. the remand is a number a somewhat we got last night. i'm trying to figure out if it's three years to get to you and a decision, goes back and if there back in the queue again so now we're up to six years minimum to get fully through all five of those steps. >> i believe, i will check on this for you and clarify it, but i believe they retain their spot in the hearing do when they are rend. >> i will check on this and clarify that i believe they retain their spot in the hearing queue when they are remanded. >> once they make a decision there back to you quickly. >> they are back into the queue where they were when they left

us because we haven't given up jurisdiction of the client. we sit back for more information. but it's still with us. generally it would come back to the same judge who had it when that it was sent, when it was remanded. this year was an aberration. it was a very very high number. we are now seeing that in subsequent years and we didn't see it in previous years. >> okay and you feel that's because of the whole issue of what is impatient and what is outpatient and that was your interpretation? >> correct. >> does it deal with the rule and all back? what a fun world that's going to be. that's -- the hospitals love it. >> we are waiting to see what the impact will be. >> i have yet to find a fan of their rule by the way get anywhere and it seems to be one of those issues that doctors and hospitals raised consistently

saying its effexor decision-making. it wasn't your decision and i'm not blaming you but there's a tremendous tremendous amount of frustration around a particular rule. >> and i think this is something that we are watching any to watch. we need to continue to see what the appeal rights are in this part a and part b inpatient outpatient arena. >> let me ask two quick questions on this and that i want to share this time as well. he dismissed and other. >> the dismissals are cases where four one reason or another usually it's because the appellant hasn't properly filed a request for hearing or perhaps they have abandoned their request for a hearing in the process by not showing up for hearing about sort of thing. so the cases are dismissed at our level. that is the final disposition of those unless they appeal that dismissal to the appeals council. >> so that is basically an unfavorable based on a didn't show up didn't follow didn't

leave the process. they started the process that didn't complete it. the previous decision which was unfavorable with stan. >> the decision becomes an final decision. >> what is other other? is on-site presence on our diets. >> the other i will actually, escalations, it would include -- include escalation to the medicare and we have 152 of those. occasionally we haven't expedited access to judicial review but those are very rare. >> okay, thank you. this.

spin but this number is so close and maybe that's just part of the aberration but that would mean virtually everyone of these cases was red because it will there was inadequate information. >> these are not come it's not a cumulative number. i understand that they are close to the same amount but the remains are close of others fuy favorable, it's not a key militant number. i understand that they are close to the same amount that the remands are exclusive of this fully favorable partially favorable and unfavorable. it's a separate category. >> okay so it's a separate category which would mean we are

talking about close to 50,000 just in part a if you take all of these numbers together, give or take? >> yes. >> okay. all right, let me ask you this. alj's don't have medical training, correct? >> noah as a general rule they don't. i don't know whether there are any that actually do have scho school -- dual certifications that they are attorneys who have been selected off in opm register. >> because they don't have medical training, they are somehow trying to determine whether or not a procedure was appropriate or not appropriate, correct? >> reasonably -- medically reasonably necessary, yes. >> is that system flawed just at the outset? >> well we have some extensive training for them that is conducted. when they come on board, we do a

training session for them that goes over very much of this but lawyers are involved in medical legal issues and many many areas. >> but there advocating typically for one side or another and not judging whether something is appropriate medical procedure or not, whether someone really needed this procedure. it's more of a philosophical question. we obviously have engaged in this for long period of time. i just find it somewhat odd that in the end there are attorneys like you and me who have been trained a certain way but don't know whether this was an appropriate procedure or not. >> in essence what they are doing is making a judicial decision that is based on the evidence that is presented to them. and in our setting that includes the written record, the

documentary evidence and generally during the course of the hearing also some explanation of medical necessity from either a provider or a supplier of the services. that is kind of the way the system is set up for us to be able to rely on the opinions. >> i will let you read your notes so you can. >> yeah essentially the same thing that i have been saying. they look at the record to determine whether the payments for coverage have been met. >> i think we are all troubled by the fact that 54% or at least that's the record we have heard, of the appeals in part a are sustained. now you said earlier that the figure for the first part of this year is less than half of that or fully favorable but

fully in partially to me need to be lumped together. >> 54% of the appeals are the same so in the medical profession if you've got it better than 50/50 chance of being sustained you were going to appeal so your volume is going to continue to increase as more and more providers recognize that hey this is a -- your odds are pretty good here and when you have an alj who is looking at their circumstances who is not a physician but who is trained, and is looking, well from my perspective as someone who is not in the profession, it could be a close call but a procedure has been performed. it's not like there hasn't been the service that has been actually provided in most