DAB Chair Implementing Medicare Appeals Precedent Rule, Welcomes Suggestions

Earlier this year, the Department of Health and Human Services (HHS) issued a final rule entitled, Changes to the Medicare Claims and Entitlement, Medicare Advantage Organization Determination, and Medicare Prescription Drug Coverage Determination Appeals Procedures.  The full text of the final rule is available at https://www.federalregister.gov/documents/2017/01/17/2016-32058/medicare-program-changes-to-the-medicare-claims-and-entitlement-medicare-advantage-organization. The final rule, which took effect on March 20, 2017, is part of HHS’ broader strategy to address the growing backlog of appeals at the third and fourth levels of the Medicare appeals process. The rule introduced several regulatory changes intended to streamline administrative appeal processes, increase consistency in decision making across appeal levels, and improve efficiency for both appellants and adjudicators.

Among other important changes, the final rule granted the Chair of the Departmental Appeals Board (DAB) the authority to designate Medicare Appeals Council (Council) decisions as precedential (42 C.F.R. § 401.109). The DAB is a staff division within the Office of the Secretary of HHS that provides impartial, independent hearings and appellate reviews, and issues Federal agency decisions under more than 60 statutory provisions governing HHS programs. The Council is part of the DAB’s Medicare Operations Division, and provides the fourth and final administrative review in the Medicare appeals process. For additional information about the DAB and the Council, see the DAB’s website at https://www.hhs.gov/about/agencies/dab/index.html.

Under the final rule, precedential Council decisions will be binding on all Centers for Medicare & Medicaid Services (CMS) components, and on all HHS and Social Security Administration components that adjudicate matters under the jurisdiction of CMS. We believe the designation of precedential decisions will increase consistency in decisions at all levels of appeal, reducing the resources required to render decisions, and possibly reducing appeal rates by providing clarity to appellants and adjudicators. We also believe that precedential decisions will encourage earlier resolution of common issues, potentially resulting in fewer appeals moving upstream to the third and fourth levels. The DAB will publish notice of precedential designations in the Federal Register, and copies of precedential decisions will be posted on the DAB’s website. 

In recognition of the impact this new authority could have on the appeals process, the DAB Chair welcomes suggestions for precedential decisions from appellants, stakeholders, and members of the general public. The DAB Chair may take into consideration decisions that address, resolve, or clarify recurring legal issues, rules or policies, or that may have broad application or impact, or involve issues of public interest. If you feel that a certain Council decision should be designated as precedential, think there is an issue that should be addressed by precedent, or have any other suggestions regarding precedential decisions, you may email the suggestion to: [email protected]. The DAB will review all suggestions, but is unable to respond to each individual submission.

While the precedential decision provision is just one part of our effort to address the Medicare appeals backlog, we are excited about this new authority and believe it will help improve the appeals process for appellants and adjudicators alike. We look forward to receiving your suggestions.

For additional information on the Medicare appeals backlog and the final rule, see the HHS Primer: The Medicare Appeals Process, available on OMHA’s website at https://www.hhs.gov/sites/default/files/omha/files/medicare-appeals-backlog.pdf, and the HHS Fact Sheet on the Final Rule, available at  https://www.hhs.gov/sites/default/files/medicare-appeals-final-rule-fact-sheet-jan2017.pdf.

Constance B. Tobias
Chair, Departmental Appeals Board