Go Directly to OAH! Do Not Pass DHHS!

Very rarely in the Medicaid arena will a health care provider be able to choose to advance to the Office of Administrative Hearings (OAH) without first visiting the Hearing Officers at the Department of Health and Human Services (DHHS).  However, if ever given the choice, in the famous words of the Monopoly Man, “Go Directly to OAH! Do not pass DHHS! Do not collect your $200!”

When does a health care provider get this choice?

Never after receiving a Tentative Notice of Overpayment.  But when a health care provider is placed on prepayment review and, subsequently, receives a Termination of Medicaid Contract notice, the provider may choose to (a) appeal to DHHS within 15 days; or (b) appeal to OAH within 60 days.

Why OAH?

1. Going straight to OAH skips a tedious procedural step (the reconsideration review):

Since I have practiced Medicaid law, I have never seen a decision from a DHHS Hearing Officer with which I agreed.  Of all the DHHS decisions I have received on behalf of my clients, I have appealed 100%.  Now, I am not saying that health care providers should not appeal if the only choice is DHHS.  In fact, I strongly encourage the exact opposite. Because appealing to DHHS, in most circumstances, is just the beginning.  Once the appeal is heard by a DHHS Hearing Officer and a decision in rendered, then a provider can move on to appeal to OAH.  But, when given a choice between DHHS and OAH, always pick OAH because, basically, going straight to OAH allows the health care provider to skip a step.

2. Going straight to OAH costs less in attorneys’ fees:

Again, because going straight to OAH allows the health care provider to skip the reconsideration review at the DHHS level, attorneys’ fees are less.

3. Going straight to OAH appoints an Administrative Law Judge (ALJ):

If given the option between a DHHS Hearing Officer and an ALJ (not employed by DHHS), which would you chose to be the objective truth-seeker?  I am in no way insinuating that the DHHS Hearing Officer is biased.  I, personally, would just choose the person to hear my case who was not employed by DHHS.  Plus, for the most part, ALJs are more sympathetic to Medicaid recipients and providers.

4. Going straight to OAH appoints an Attorney General (AG):

What? This is a good thing??? We WANT an attorney against us? Yes. Until the Medicaid recoupment appeal gets to the OAH level,  there is no attorney on the state’s side.  Which means no settlement can be discussed. Once an AG is assigned, the likelihood of settling skyrockets.  The AGs understand the Medicaid rules and the benefits to settle. Thus, having a knowledgable attorney on the state’s side is extremely beneficial.

Despite all these great reasons to “Go Directly to OAH! Do not pass DHHS!,” inevitably, health care providers will normally not be able to skip DHHS.  My advice? Appeal, Appeal, Appeal. And once you get the Decision from DHHS? Appeal, Appeal, Appeal.  The decisions only get better once you receive that first DHHS decision.

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on February 12, 2013, in Uncategorized and tagged , , , , , , , . Bookmark the permalink. Leave a comment.

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