“Finally Friday!” Review of The AFIRM Act of 2015

FRIDAY June 19, 2015:

The AFIRM Act:

“Where to elect there is but one,
‘Tis Hobson’s choice—take that, or none.”

Ward, Thomas (1853). English Reformation, A Poem.

A Former ALJ Reviews the new bill from
the Senate Finance Committee

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According to a plaque underneath a painting of Hobson donated to Cambridge Guildhall, Hobson had an extensive stable of some 40 horses. This gave the appearance to his customers that, upon entry, that customer would have his or her choice of mounts, when in fact there was only one: Hobson required his customers to choose the horse in the stall closest to the door. This was to prevent the best horses from always being chosen, which would have caused those horses to become overused.

According to a plaque underneath a painting of Hobson donated to Cambridge Guildhall, Hobson had an extensive stable of some 40 horses. This gave the appearance to his customers that, upon entry, that customer would have his or her choice of mounts, when in fact there was only one: Hobson required his customers to choose the horse in the stall closest to the door. This was to prevent the best horses from always being chosen, which would have caused those horses to become overused. So… does that sound familiar?

In case you are not familiar, the term “Hobson’s choice” is often thought to refer to a false “illusion” of choice, but this is incorrect. A choice between two equivalent options is called a Morton’s fork, while a choice between two undesirable options is called a dilemma. Hobson’s choice is choosing between something or nothing. One could argue that in the case of all legislation, “we” have no choice at all as pertains to a specific piece of legislation, and that it is our representatives in Congress who face either a Hobson’s choice or a dilemma.

The Senate Finance Committee recently approved the “Chairman’s Final Markup” of a bill to improve the Medicare audit and appeals process. When the draft is cleaned up, based on the final text approved by the committee, it will be sent on to the Senate for debate and vote. The bill, with the nifty name of the “Audit and Appeal Fairness, Integrity and Reforms in Medicare Act” or AFIRM Act, was co-authored by Sen. Orrin Hatch, R-Utah, chairman of the committee, and Sen. Ron Wyden, D-Ore., the committee ranking member.

Increased Medicare payment appeals from a range of Medicare providers and suppliers has resulted in a substantial backlog, causing financial and administrative problems that sometimes last years,” Hatch and Wyden stated in their press release, as reported here June 2. “This legislation is designed to improve the appeals process at HHS while upholding the integrity of the audit process so that providers and beneficiaries are not indefinitely left in limbo.

Bob's new book, Hurry Up and Wait will provide straight talk about why the time for an ALJ hearing at OMHA has skyrocketed from 3 months to over 3 years, and offer solutions to what has become a crisis for any healthcare provider or supplier whose case is denied by Medicare.

Bob’s new book, Hurry Up and Wait will provide straight talk about why the time for an ALJ hearing at OMHA has skyrocketed from 3 months to over 3 years, and offer solutions to what has become a crisis for any healthcare provider or supplier whose case is denied by Medicare.

I recently spoke with Bob Soltis, a former Administrative Law Judge (ALJ), about several topics, and he just finished adding a chapter about AFIRM to a new book he is about to publish, entitled, “Hurry Up and Wait: Our Broken Medicare Hearing System.” We are planning a show about working with the ALJs, to include Bob and our own legal experts, Jessica Gustafson and Abby Pendleton, on our July 10 show. But this bill from the Senate is very new, and we wanted to bring up these worrisome points to our audience. So, we’ll do our review of AFIRM this week!

We will talk with Bob about these four points (which we agree on) that are of great concern in the AFIRM Act:

  • Medicare Magistrates – slogan, solution, or Hobson’s choice?
  • An “exception” for CMS and its contractors – the tail wagging the dog?
  • Disclosing ALJ’s not on CMS’ “nice” list – too much information?
  • Standards for RACS and the doctors reviewing cases for them – sauce for the goose?

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