Close
Updated:

The OMHA Expands the Settlement Conference Facilitation ADR Process to Appellants

by

The Office of Medicare Hearings and Appeals (OMHA) has recently opened the Settlement Conference Facilitation (SCF) to the appellant community. The SCF is an alternative dispute resolution (ADR) process meant to bring certain providers and the Centers for Medicare & Medicaid Services (CMS) together to discuss mutually agreeable resolutions for Medicare Part A and B claims appealed to either the OMHA level or the Department of Appeals Board’s Medicare Appeals Council (Council) level of the Medicare claims appeals process. SCF forms, FAQs, and other information may be found here.

SCF ELIGIBILITY

There are two separate eligibility criteria that a provider must meet to be eligible to participate in SCF. First, the provider must meet the SCF Appellant Eligibility Criteria, which requires the following:

  • The appellant must be a Medicare provider/supplier and have a National Provider Identifier (NPI) and Provider Transaction Access Number (PTAN);
  • The appellant must have no pending bankruptcy filings and/or expect to file bankruptcy; and
  • The appellant may be excluded from participation if s/he has (or has had) False Claims Act (FCA) litigation/investigations pending against them, or if there are other program integrity concerns (e.g., pending civil, criminal, or administrative investigations).

Second, the provider must meet the SCF Appeals Eligibility Criteria, which includes the following:

  • The appeal must involve request(s) for an Administrative Law Judge (ALJ) hearing or Council review filed by the appellant on or before March 31, 2020;
  • The ALJ hearing/Council review request must arise from a Medicare Part A or B Qualified Independent Contractor (QIC) reconsideration decision;
  • Appellant must meet all jurisdictional requirements for OMHA or Council review;
  • Appellant must include all SCF-eligible OMHA and Council appeals associated with a single NPI and PTAN in SCF;
  • Appellant cannot schedule an appeal for an ALJ hearing or an ALJ hearing must not have been conducted;
  • The appeal cannot be involved in OMHA’s Statistical Sampling Initiative;
  • The appeal cannot be actively engaged in other CMS Medicare appeals initiatives (e.g., QIC Demonstration Project and CMS Serial Claims Initiative);
  • The beneficiary cannot have been found liable for the amount in controversy following the initial determination, or have participated in the reconsideration;
  • The appeal cannot involve items, services, drugs, or biologicals billed under unlisted, unspecified, unclassified, or miscellaneous healthcare codes (e.g., CPT code 38999);
  • The appeal cannot involve payment disputes (e.g., the appellant believes the fee schedule/contractor price amount is insufficient, but they received full payment);
  • The appeal cannot have arisen from a QIC or ALJ dismissal order; and
  • The appeal must not be a beneficiary-initiated appeal of a QIC reconsideration, an appeal arising from Medicare Part C or D, an appeal of Social Security Administration decisions regarding entitlement, Part B late enrollment penalties, or Part B and D income related monthly adjustment amounts.

SCF PROCESS

There are two SCF pathways an appellant may take – SCF Express and the general SCF process. If the appeal is for a total billed amount less than $10,000, the appellant must participate in SCF Express. Claims for less than $10,000 do not include the option of a settlement conference. Appellants with claims between $10,000-100,000 may opt to use SCF Express rather than the general SCF process. Appellants with claims totaling more than $100,000 must partake in the general SCF process. Any settlement agreement, with individual claims or extrapolated overpayments, in excess of $100,000 must be approved by the U.S. Department of Justice (DOJ) prior to execution by CMS and the appellant.

The general SCF process proceeds as follows:

  1. An appellant submits a Request for SCF to OMHA at OMHA_SCFAppeals@cms.hhs.gov.
  2. CMS is informed of the request and has 15 calendar days to determine whether it will participate in SCF (participation is not mandatory for either party).
  3. If CMS indicates it will participate, a spreadsheet of the SCF-eligible appeals is created.
  4. The appellant will then receive a Preliminary Notification Package (including the SCF spreadsheet) for appellant’s review.
  5. The appellant must respond within 20 calendar days of receiving the Preliminary Notification Package by submitting the completed SCF Agreement of Participation Package (available here).
  6. Once the Agreement of Participation Package is received, an SCF Confirmation Notice is issued.
  7. OMHA will then begin the Pre-Settlement Conference scheduling process.
  8. The Pre-Settlement Conference is held (position papers may be submitted, if applicable).
  9. The parties then enter the Settlement Conference (Only 1 business day in length).
    • If an agreement is reached, the parties sign the agreement the day of the conference. If signed the next day by the appellant, it must then be sent to CMS for signature. Once all parties have signed, the settlement agreement will be executed.
      • Again, any settlements in excess of $100,000 are subject to DOJ approval.
    • If no agreement is reached, the appeals will return to the previously assigned adjudicator’s docket, if applicable, or to the OMHA and Council docket.

SCF EXPRESS

The SCF Express process follows the same general process above from Step 1 through Step 6. Once the SCF Confirmation Notice is issued, CMS will provide a settlement offer to the appellant based on preliminary data available to it (e.g., ALJ overturn rates, types of claim/service, etc.). An SCF Express Offer Package will be issued to the appellant within 30 calendar days. The appellant has 7 calendar days to respond by either accepting the offer or denying it. If accepted, the settlement agreement must be signed and sent back to CMS for signature and effectuation. If denied and the claims are for at least $10,000, the appellant must request a settlement conference with CMS. If denied and  the claims are for less than $10,000, the appellant must request its appeal to return to OMHA and/or the Council.

For any questions regarding the SCF process (general or express), please contact your regular HLP attorney, or Partners@thehlp.com, or call (212) 734-0128 or (248) 996-8510.