(January 30, 2013): The Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (also referred to as “BIPA”), amended Section 1869 of the Social Security Act, resulting in a number of significant changes to the way administrative appeals of denied Medicare claims are handled. One change in particular has greatly simplified the Medicare appeals process. BIPA established a uniform process for handling both Medicare Part A and Part B administrative appeals.
I. ZPIC Audits Involving Extrapolated Damages Have Become Quite Common.
Unlike the Medicaid administrative claims appeal process (which varies from state to state), thanks to BIPA, the Medicare administrative appeals process is relatively straightforward in terms of its applicable deadlines and its filing procedures. Unfortunately, a number of potential pitfalls remain, especially if a health care provider is inexperienced and has been subjected to an audit involving multiple claims where the Zone Program Integrity Contractor (ZPIC) has engaged in statistical sampling and has “extrapolated” the alleged damages in order to arrive at a projected overpayment. Although most providers can handle the appeal of individual (or even a handful) of claims, if you are facing a “big-box” appeal where alleged damages have been extrapolated, it is strongly recommended that you obtain the assistance of experienced legal counsel to represent you in the proceedings.
II. How Are ZPIC Audits Initiated?
A ZPIC may initiate a post-payment audit of your Medicare claims for a variety of reasons. After handling the administrative appeal of literally tens of thousands of claims, we have found that the two most common reasons for an audit are: (1) Data-Mining and (2) Complaints.
Data-mining may result in a provider being targeted based on the number of patients he or she is allegedly seeing each day, the frequency that a specific Code Procedural Terminology (CPT) code is being billed, or countless other factors examined by a contractor when assessing coding and billing practices. Alternatively, a provider may be reviewed as a result of a complaint filed by a former employee, a dissatisfied patient, or even a competitor. Regardless of the source, once a provider is targeted and an audit has been initiated, it is imperative that the provider diligently work to address any operational, coding, or billing concerns that may arise.
While the nature of a contractor’s initial contact with a Medicare provider can vary (it often is made by an unannounced site visit), a provider may also receive a written request for information from the ZPIC. In past years, written requests were primarily focused on supporting medical documentation related to specific claims for services or devices billed to Medicare. This focus has seemingly changed over the past few years. Although many requests continue to seek only supporting medical documentation, we have seen an appreciable increase in the number of requests for business records sent out by Medicare contractors such as ZPICs. These requests often seek copies of contracts, medical director agreements, and copies of accounting records. Essentially, these document requests are meant to provide the contractor with an accurate picture of the provider’s business and referral relationships. Should the contractor identify any questionable relationships, they will then refer their findings to the Inspector General of the Department of Health and Human Services (HHS-OIG) and / or the Department of Justice (DOJ) for further consideration.
After you have received a request for supporting documentation (either in writing or as a result of an unannounced visit) and have submitted the information sought, the requesting ZPIC will subsequently send you a letter, outlining the ZPICs findings.
While practices vary from ZPIC to ZPIC, a provider typically first learns that an auditing contractor intends to extrapolate an alleged overpayment in one of two ways. In some cases, the initial letter sent to the provider requesting medical records associated with a group of claims may expressly state that the claims identified constitute a statistically relevant sample. As such, when the audit is completed, the ZPIC will then extrapolate the alleged damages to the universe of claims at issue in the case. In most cases, the contractor has examined a universe which consists of a two year period of claims. Alternatively, a provider may not learn that the contractor intended to extrapolate damages until the results of the ZPIC audit are received.
It is not uncommon for a ZPIC to take from 6 months to 2 years to complete its review of your documentation. Shortly after receiving the ZPIC results letter, you should receive a “demand letter” from your Medicare Administrative Contractor (MAC). While the letter from your ZPIC will typically lay out the audit results and discuss the reasons for denying certain claims, you should pay careful attention to see if the ZPIC has extrapolated the alleged damages in your case from the sample of claims reviewed to the universe of claims at issue.
In most cases, the ZPIC letter will expressly state that their correspondence is not a demand letter. Instead, the second letter, sent by the MAC, will state the amount of the alleged overpayment and lay out when payment is due. Normally, the date of the MAC letter is also used to calculate the due date of the provider’s rebuttal and redetermination appeal. While this process has become fairly uniform, we have continued to see exceptions to the general rule. In at least one case, the demand letter was sent out in a third letter. In another case, the contractor’s demand letter language was incorporated into the first letter. As a result, it is imperative that you carefully review any and all correspondence sent by a ZPIC.
III. What is an “Extrapolation”?
An extrapolation is the process of using statistical sampling in a review to calculate and project or extrapolate alleged overpayments made in connection with Medicare claims. Medicare contractors seek out errors in a purported “statistically relevant sample” of the provider’s Medicare claims and then calculate and apply the “error rate” to the entire universe of claims covering a given period of time.
The practice dates back twenty years to a decision by the HHS to authorize the use of statistical sampling in lieu of engaging in onerous claim-by-claim reviews. In Chaves County Home Health Services v. Sullivan, the Court of Appeals for the District of Columbia Circuit upheld extrapolation as within the Secretary’s discretion.
When faced with a potential case where the universe of claims to be reviewed is so large that a claim-by-claim review is not administratively feasible, CMS has authorized its contractors (including ZPICs) to use statistical sampling to arrive at a projected overpayment. As HCFA Ruling 86-1 reflects:
“Intermediaries and carriers may use statistical sampling to project overpayments to providers, physicians and suppliers when claims are voluminous and reflect a pattern of erroneous billing or overutilization and when case-by-case review is not administratively feasible. Providers can appeal the overpayment determination by challenging the statistical validity of the sample or the correctness of the determination in specific cases identified by the sample.”
As HCFA Ruling 86-1 expressly notes, a provider or supplier who is concerned about the correctness of the projected overpayment can challenge the “statistical validity” itself or the correctness of the “specific cases identified by the sample.” As HCFA Ruling 86-1 further notes, statistical sampling is appropriate when:
“. . . The intermediary [has] decided that this method of determining the amount of the overpayment was not administratively feasible, given the volume of records involved and the cost of retrieving all the beneficiary records for the period in question. The cost of identifying and calculating each individual overpayment itself would constitute a substantial portion of the amount the intermediary might reasonably be expected to recover. Further, the allocation of sufficient staff to reexamine all individual claims for the period in question would interfere with current claims processing activities to an unacceptable degree.”
While a provider may still challenge the denial of claims in the sample reviewed, the use of extrapolation greatly increases the potential financial harm that a provider mat suffer as a result of an audit. Moreover, the reliance of ZPICs on statistical sampling only seems to be growing. This makes it essential for providers to involve experienced counsel and qualified experts as soon as possible in cases where damages have been extrapolated.
The use of extrapolation can greatly increase a provider’s potential liability. It is not at all uncommon for a sample of denied claims which would normally add up to a mere $10,000, to be magnified to the universe of claims, to an extrapolated alleged overpayment of $500,000 or even more. As we will discuss, there are a number of business reasons why everyone except the provider benefits from the use of extrapolation.
IV. Challenging a ZPIC’s Extrapolation of Alleged Damages.
In recent years, we have seen Medicare contractors (such as ZPICs) increasingly rely on statistical extrapolation estimates when assessing claims overpayments. In early cases, we successfully challenged countless extrapolations by identifying relatively basic reasons for why the calculations were inconsistent with accepted statistical principles and practices. Now, however, providers should expect ZPICs, and soon, Recovery Audit Contractors (RACs) to send a team made up a statistician, one or more clinical reviewers and an attorney, to vigorously oppose most, if not all, hearings challenging the validity of the extrapolation.
Imagine that a ZPIC or RAC hands you a claims analysis rife with alleged errors, an indecipherable list of statistical formulas, and an extrapolated recovery demand that will cripple your practice or clinic. What steps should you take to analyze their work? Based on our experience, providers should carefully assess the contractor’s actions, use of formulas, and application of the RAT-STATs program when selecting a statistical sample and extrapolating the alleged damages based on the sample pulled. Over the years, we have challenged the extrapolation of damages conducted by Medicare contractors around the country, covering tens of thousands of claims. Regardless of whether you are providing E / M, home health, physical therapy, hospice, or other services, it is imperative that you work with experienced legal counsel and statistical experts to analyze the statistical sampling and extrapolation steps taken by the contractor.
Should you succeed in invalidating the extrapolation, the whole game will change. The question is—“How can you go about fighting an extrapolation calculation?” As your legal counsel can attest, there are a number of both legal and substantive statistical arguments that should be analyzed by your counsel and expert statistician when challenging the validity of a statistical extrapolation. The weight given to a specific argument may vary from judge to judge. As a result, it is often in your best interest to assert any and all legitimate arguments in support of your assertion that the statistical extrapolation is fatally flawed.
V. Questions You Should Ask When Retaining Legal Counsel to Represent Your Interests.
When faced with extrapolated damages, it is almost always necessary to retain qualified legal counsel to represent the provider in the Medicare administrative appeals process. Possible considerations include, but are not limited to:
(1) Has the law firm ever handled large, complex contractor audits before? Some firms will happily take your case, despite the fact that they have little or no experience in this area of health law. Do not pay for your attorneys to learn how to handle your case. While every case is different, an experienced firm will have developed a number of arguments and defenses that may be readily used in your case without having to conduct costly, extensive legal research.
(2) Can the firm provide client references? You should not hesitate to ask the attorney for references who can discuss the quality and cost effectiveness of the attorney’s work.
(3) Has the attorney handled multiple hearings before ALJs hearings and / or appeals before the Medicare Appeals Council (MAC)? At the end of the day, there are few substitutes for experience. Make sure you are comfortable with your attorney.
(4) Inquire into who will be used as a statistical expert. Experienced legal counsel will have likely developed solid relationships with statisticians who can be engaged to review the Medicare contractor’s statistical methodology.
(5) The issue of “cost” should be addressed before any final decision is made to retain an attorney to represent your practice or business. Attorneys may be willing to handle your case on an hourly basis, as a flat rate, or on some other basis. It is essential that you conduct an honest review of your financial condition and engage competent counsel at a cost you can afford.
Medicare appeals cases involving extrapolated damages can be quite complicated. If you intend to challenge an extrapolation, it is essential that you work with experienced legal counsel and experts. Not yet facing an audit? Avoid this issue in the first place — develop, implement and adhere to an effective Compliance Plan. Work with your staff to ensure that each of your claims fully meets applicable documentation, coverage and payment requirements before billing.
Robert W. Liles and other health lawyers in Liles Parker have extensive experience representing Part A and Part B providers in Medicare appeals cases, both with and without an extrapolation of projected damages. Our attorneys are also experienced in setting up effective Compliance Plans and Programs for Medicare and Medicaid providers. Should you have any questions, please give Robert a call for a free consultation. He can be reached at: 1 (800) 475-1906.
 A “big-box” appeal is a term used by personnel at the Office of Medicare Hearings and Appeals that refers to a large, multi-claim case typically involving between 50 and 200 claims. In most big-box appeals, the auditing contractor has also sought extrapolated damages.
 In this instance, the “MAC” refers to the Medicare Administrative Contractor (such as TrailBlazer, Palmetto, Pinnacle, CIGNA, etc.).
 931 F.2d 914 (D.C. Cir. 1991).
(January 21, 2013): Medicare appeals of denied claims for services are somewhat common. In years past, both health care providers and members of their staff have represented themselves or their practice in the administrative process. While the rules of participation are quite lenient, the process has significantly changed over the last decade. Moreover, in recent years, contractors working for the Centers for Medicare and Medicaid Services (CMS) have assumed a much greater role in the Medicare appeals process. Hearings conducted in today’s administrative appeals of alleged Medicare overpayments are likely to be quite different from those conducted even a few years ago. Should you decide to represent yourself in a hearing before an Administrative Law Judge (ALJ), you must be prepared to respond to a number of relatively new challenges. As set out below, the current administrative process is really the result of several consecutive legislative changes to the Medicare appeals process.
I. The Enactment of “BIPA” Was the First of Many Changes to the Medicare Appeals Process:
The “Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000″ (also referred to as “BIPA” )amended Section 1869 of the “Social Security Act” (Act), resulting in a number of changes. Several of the changes implemented under BIPA included:
The legislation established a consistent, uniform process for handling both Medicare Part A and Part B administrative appeals;
BIPA introduced a new level of appeal for Part A claims, making it so that it now tracked the Part B claims appeals process;
The legislation revised the appeal deadlines for filing Part A and Part B claims appeals and also applied the same deadlines to both Part A and Part B claims;
The legislation identified ”deadlines” for CMS contractors at the first level of appeal (Medicare Administrative Contractors, or “MACs”) to issue a “Redetermination’’ appeal decision;
BIPA also created a second level of appeal which would be heard by a type of CMS contractor known as a Qualified Independent Contractor (QIC) to conduct a “Reconsideration’’ of the MAC’s previously issued redetermination decision;
BIPA established a uniform “amount in controversy threshold” which must be met in order for a health care provider or supplier to appeal a reconsideration denial decision to the Administrative Law Judge (ALJ) level;
Required that each level of appeal conduct a de novo review of the evidence.
II. The MMA Further Refined the Medicare Appeals Process:
Medicare appeals were further changed with the passage of the “Medicare Prescription Drug, Improvement, and Modernization Act of 2003″ (MMA). Several of the refinements made to the Medicare appeals process under the MMA included, but were not limited to:
Under the MMA, the ALJ hearing process was transferred from the Social Security Administration (SSA) to an agency reporting directly to the Secretary, HHS, known as the “Office of Medicare Hearings and Appeals” (OMHA).
The legislation established a process for a health care provider to seek and “expedited” judicial review;
The MMA required that health care providers present their evidence to be considered early in the appeals process so that it could be considered at the second level of appeals.
Under the MMA, health care providers could not seek an administrative or judicial review of a determination by the Secretary of a “sustained or high levels of payment errors”; and
These revisions, along with a number of other changes, have dramatically changed the way that Medicare appeals are conducted. Equally significant, CMS contractors (including Zone Program Integrity Contractors (ZPICs), Recovery Audit Contractors (RACs) and even representative of the QIC now routinely show up at ALJ hearings (as a “participant” not as a “party”)in order to present their reasoning for denying the claims.
While the proceeding is technically “non-adversarial” in nature. The participation in the ALJ hearing of medical and statistical experts working for ZPIC can greatly complicate your handling of a Medicare appeal.
Over the years, our attorneys have represented a wide variety of Part A and Part B providers and suppliers in Medicare hearings before an ALJ. There are no guarantees in litigation. Nevertheless, if you want to maximize your chances of presenting a persuasive case, we recommend that you retain experienced legal counsel to represent you as early in the process as possible.
Robert W. Liles, Esq. serves as Managing Partner at Liles Partner, PLLC. Robert and the firm’s other attorneys have years of experience representing health care providers in the Medicare appeals process. Should you have a question, call Robert for a free consultation: 1 (800) 475-1906.
Medicare Appeals — Filings with the Office of Medicare Hearings and Appeals Switch to a Central Docketing System.
(March 1, 2012): Medicare appeals of denied claims arising out of audits conducted by Zone Program Integrity Contractors (ZPICs) and Recovery Audit Contractors (RACs) has significantly increased as administrative enforcement efforts have expanded around the country. While workloads have generally risen across the board, the number of cases handled from one ZPIC to another has resulted in an enormous disparity in workload for the various Field Offices of the Office of Medicare Hearings and Appeals (OMHA).
I. Medicare Appeals Will Now be Handled Through a “Central Docketing System”:
As a result, OMHA recently switched to a “Central Docketing System” for all pending and new Medicare appeals. Under this new system, all Administrative Law Judge (ALJ) hearing requests will initially be sent to OMHA’s Central Office in Cleveland, OH. Each appeal will subsequently be assigned to one of the Field Offices – Irvine, CA, Miami, FL or Arlington, VA – or to ALJs in the Central Office, depending on the caseload in each office. Despite assigning appeals to different offices, OMHA is not breaking these appeals into their component parts – individual claims - so “big box” cases will still be handled by one ALJ.
While each Medicare appeal will likely be assigned to an office randomly, OMHA will likely base these assignments on current workloads at each of its offices. Therefore, a provider in Texas or Louisiana, who would previously have always gone before an ALJ in the Miami Field Office, may end up before an ALJ in any of OMHA’s four offices. While this may be disconcerting at first, most ALJ hearings are conducted by phone or video-teleconference nowadays, meaning that the ALJ’s location doesn’t substantially affect how a case is handled. While it may be more difficult to ascertain the procedural habits of a single ALJ (such as in what order to present information or how formal each hearing session is) since you and/or your counsel may go before a wider array of ALJs, Medicare appeals and hearings should generally be handled in the same manner.
II. Responding to a Medicare Overpayment Audit / Filing a Medicare Appeal:
Years ago, it was not uncommon for physicians or members of their staff to represent a practice in a hearing before an ALJ. Unfortunately, those days are long past. While representing ones-self in an ALJ hearing may still be an option in hearings involving a limited number of claims, if the amount in controversy is substantial, there is a high likelihood that one or more representative of the ZPIC will show up at the ALJ hearing and give their reasons for denying the claims at issue. Although the ALJ hearing process is not meant to be adversarial, it often feels like a contested hearing when representatives from a ZPIC or another Medicare contractor choose to participate in the proceeding. Are you prepared to respond to their assertions? If not, it is important to retain qualified and experienced legal counsel to assist you in the matter.
Liles Parker is a full service health law firm with several offices around the country. Representing providers in all stages of Medicare post-payment appeals, our attorneys are well-versed in the administrative appeals process and capable of aggressively handling your case. In addition, we conduct compliance program advising and implementation, as well as mock audits, staff training and health care business transactions. Please call Robert W. Liles at: 1 (800) 475-1906 for a complimentary consultation today.
Lose Your Medicare Appeal at Reconsideration? Don’t Throw in the Towel Just Yet — Consider the Consequences and Your Options.
(June 18, 2011): As a review of the last several quarters of Medicare appeals statistics reflects, an overwhelming percentage of Medicare providers appealing alleged overpayments through the Medicare administrative appeals process have chosen to “throw in the towel,” so to speak, when they have lost at the reconsideration level. As you will recall, at the reconsideration level, Medicare claims are assessed by a Qualified Independent Contractor (QIC) selected by the Centers for Medicare and Medicaid Services (CMS) to hear the second level of administrative appeals.
According to statistics kept by Q2Administrators, the contractor selected to serve as the Administrative QIC (AdQIC), most Medicare providers have chosen not to appeal claims denials issued the QIC at the reconsideration level of appeal. Nationwide, in the last eight quarters, the percentage of Part B QIC cases not being appealed has risen to an astounding 86%. This trend is also occurring in Part A QIC cases, where the numbers of non-appealed cases have grown from roughly half to 75%.
The purpose of this article is to examine possible reasons why Medicare providers have chosen not to appeal claims denials to the Office of Medicare Hearings and Appeals (OMHA) to be heard by an Administrative Law Judge (ALJ). We also examine points to be considered by providers if choosing to be represented by legal counsel in the ALJ hearing process.
I. The Third Level of Medicare Appeals — ALJ Hearings
For 2011, if at least $130 remains in controversy following a QIC’s denial decision at the reconsideration level, a Medicare provider may request an ALJ hearing within 60 days of receipt of the reconsideration denial decision. ALJ hearings are intended to be non-adversarial proceedings aimed at determining the facts so that questions of coverage and payment may be properly addressed. It has been our experience that the ALJ level of appeal is a provider’s best opportunity to present its arguments in support of coverage and payment.
ALJ hearings are usually held by video-teleconference or by telephone, but you may also ask for an in-person hearing. While an ALJ hearing is the third level of the administrative appeals process, it is the first time that a provider is given an opportunity to testify, clarify points missed by reviewers at lower level of appeal and answer any questions that may be raised by the ALJ.
II. Why Are Most Providers Not Filing Medicare Appeals Past the Reconsideration Level?
When facing an overpayment determination levied by a Zone Program Integrity Contractor (ZPIC), a Recovery Audit Contractor (RAC) or in some instances a Medicare Administrative Contractor (MAC), the first question to be addressed by a Medicare provider is:
“Based on the record and the facts, should we have been paid for the services rendered or the products / devices provided to the Medicare beneficiary?”
The answer to this question isn’t always as easy as it may initially seem. Having said that, the basic rule we recommend that providers follow is fairly simple – if it doesn’t belong to you, give it back. In such a situation, a provider should examine the various reasons why the claim does not qualify for coverage and payment and should take steps to better ensure that any deficiencies are remedied. Additionally, any other overpayments noted must be promptly repaid to the government, with the 60 day period mandated under the Affordable Care Act (ACA).
In cases where a provider (or their representative) contends that a claim does, in fact, qualify for payment, it typically appeals an overpayment assessment issued by a ZPIC, RAC or MAC. Nevertheless, as previously discussed the vast majority of providers who lose an appeal at the reconsideration level choose not to further appeal the denial. In speaking with Medicare providers, the primary reasons for not appealing any further include:
Cost / benefit considerations. By the time a provider reaches the ALJ level, the provider has already endured the time, expense and frustration of unsuccessfully arguing its case through two levels of appeal. By this time, many providers conclude that the amount in controversy does not justify the time and expense of further appealing the QIC’s denial to the ALJ level.
- Many providers are intimidated by the hearing process and do not feel comfortable participating in an ALJ hearing. Despite the fact that ALJ hearings are typically conducted by teleconference, the process can still be quite intimidating. ALJs almost always place testifying providers and their designated “experts” under oath before taking their testimony. Additionally, if a provider has introduced new evidence into the record, it will be required to show “good cause” for its admission at this late stage of the proceedings. Finally, most providers find that the ALJ handling their case is quite knowledgeable and typically has extensive experience analyzing coverage requirements and assessing the adequacy of a provider’s documentation. Providers who have failed to adequately prepare for the hearing are likely to find that the process can be quite difficult.
- The ALJ hearing process has become considerably more complicated due to the participation of ZPIC personnel. Over the past year, the ALJ hearing process has become quite complicated when dealing with large, “big box” overpayment cases. For instance, in cases when damages have been extrapolated, it is quite common for representatives of the ZPIC who issued the initial denial decision to attend the hearing as a “participant.” When this occurs, ZPIC representatives often include an attorney representing the ZPIC, a statistician who will be prepared to support the extrapolation applied in the case, and a clinician (typically a Registered Nurse) who will testify why the claims allegedly do not qualify for coverage.
In cases where a provider’s third-party biller has agreed to handle claims appeals, few billers have agreed to pursue a denial past the reconsideration level of appeal.
III. Consequences of Not Taking Your Medicare Appeal to the ALJ Level
Assuming that no extended repayment plan has been established and the alleged overpayment has not already been repaid, the MAC will initiate recoupment of the alleged overpayment 30 days after the QIC issues its denial decision. Unfortunately, this will occur regardless of whether a request for ALJ hearing is filed in a timely fashion.
Should a provider choose not to further appeal, its important to recognize that its “claims denial ratio” will increase. As the government and its contractors increasingly rely on “data mining” when identifying potential targets for audit, providers with a high error rate will likely find their practices subject to further scrutiny.
IV. Don’t Give Up on Properly Billed Claims – Consider Your Options Before Declining to Pursue a Medicare Appeal
As Medicare claims audit and assessment efforts increase (through CMS’ use of ZPICs, PSCs and RACs), health care providers will be under increasing pressure to ensure that all statutory and regulatory medical necessity, documentation, coding and billing requirements are met. Despite a provider’s best efforts to remain compliant, it may find that its practice or clinic is alleged to have been overpaid by a Medicare contractor. Should that occur, we strongly recommend that you retain qualified, experienced legal counsel to represent your interests as early in the Medicare appeals process as possible.
Should you choose to handle the appeal yourself and lose at the reconsideration level, contact experienced legal counsel before deciding to discontinue the appeal. Depending on the facts, you may find that it is both cost-effective and advisable to have your case handled at the ALJ level by experienced legal counsel. When retaining counsel, there are several important questions that you should ask:
“How much of your law practice involves health law issues?
Please describe the extent of your experience handling large, complex administrative appeals of denied Medicare claims.
Please describe your experience in challenging statistical extrapolations applied to an alleged overpayment in a case.
How often have you responded to AdQIC appeals of favorable ALJ decisions?
How often have you handled MAC appeals?
Can you provide provider references?”
Hopefully, your practice will not face a large administrative appeal of denied Medicare claims. However, should such an event occur, you need to be ready to respond to the contractor’s audit.
In addition to representing a wide variety of providers in the administrative appeals process, our Firm has been retained by a number of other law firms to assist them with large, complex administrative appeals. After representing health care providers for many years in administrative hearings, involving literally tens of thousands of claims, it has been our experience that the ALJ level of appeal is the single best opportunity that a provider has to present its arguments in support of payment.
While there are no guarantees in litigation, working with qualified clinical personnel, experienced legal counsel can effectively present a provider’s arguments in support to an ALJ assigned to hear the provider’s case. Keep in mind, the trier of fact is an attorney – not a clinician or a consultant. Experience, coupled with an in-depth knowledge of the statutory and regulatory requirements may prove essential in proving your case. The ALJs we have practiced before have been attentive, knowledgeable, willing to listen to the provider’s viewpoint, and perhaps most importantly, FAIR. Neverthless, it is the job of your legal counsel to present the facts in a concise, coherent, persuasive fashion. If your practice is facing an ALJ hearing, consider the benefits of retaining experienced counsel when considering your options.
Liles Parker attorneys have extensive experience representing Home Health, Hospice, CMHC, DME, Ambulance, Physician Practices, Nursing Homes, SNFs, and PT / ST / OT Therapy providers in the Medicare administrative appeals process. Our attorneys also work with providers to help better ensure that their Compliance Program addresses applicable statutory and regulatory requirements. Need assistance? Call us for a complimentary initial consultation. We can be reached at: 1 (800) 475-1006
(February 19, 2011): Over the years, we have represented a wide variety of health care providers in the Medicare appeals process. Our duties have regularly included representation before Administrative Law Judges (ALJs) presiding out of the Western, Southern, Midwestern and Mid-Atlantic Field Offices of the Office of Medicare Hearings and Appeals. (OMHA).
In the course of our work, we have routinely been asked by our health care provider clients for our opinion regarding the “independence” of ALJs from the pressures exerted by the Centers for Medicare and Medicaid Services (CMS) and its contractors (including, but not limited to the Qualified Independent Contractors (QICs), Zone Program Integrity Contractors (ZPICs) and Program Safeguard Contractors (PSCs)). The purpose of this brief article is to examine this issue in more detail.
As many of you will recall, prior to the passage of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Medicare appeals of denied claims and services were heard by Judges working for the Social Security Administration’s (SSA’s) Office of Hearings and Appeals. For much of that time, the SSA was an agency of the Department of Health and Human Services (HHS). In 1994, the SSA was officially separated from HHS and was made an independent agency. Despite the fact that the SSA was no longer part of HHS, its Judges continued to hear Medicare administrative appeals.
Despite the fact that SSA used to a part of HHS (and for a short period was independent of HHS), in our opinion, SSA Judges were generally thought to be “independent” adjudicators of the facts, not impacted by, or bowing to, the effects of outside agency pressures.
II. Changes to the Medicare Appeals Process After the Passage of the MMA:
With the enactment of the MMA, the responsibility for hearing Medicare appeals of claims denied by ZPICs and PSCs was transferred over to HHS, with the OMHA reporting solely to the Secretary, HHS. In doing so, the OMHA was placed completely outside of CMS’ organizational structure, ostensibly free from any agency pressures that CMS might informally care to exert. This also placed the OMHA independent of the various contractors working for CMS. As a review of the Congressional Record reflects, the issue of independence was carefully considered by Congress and the separation of the OMHA from CMS was consistent with their concerns. (See Congressional Record, V. 149, Pt. 22, November 20, 2003 to November 23, 2003, Page 30400). As set out in the June 23, 2005 issuance of the Federal Register (70 Fed.Reg. 36386), titled “Office of Medicare Hearings and Appeals; Statement of Organization, Functions, and Delegations of Authority,” the OMHA is under the direction of a Chief Administrative Law Judge who reports directly to the Secretary, HHS. This organizational structure was specifically intended to meet the “independence” requirements of the Section 931(b)(2) of the MMA.
III. What Should You Now Expect When Pursuing a Medicare Appeal Before an ALJ?
In terms of functional authority, ALJs are comparable in many respects, to that of an Article III Judge, who is appointed by the President and confirmed by the Senate.
While ALJ’s are not Article III Judges, it has been our experience that they are strongly independent, adjudicating over Medicare proceedings in a formal, professional fashion, similar to what you would expect to encounter in a Federal District Court proceeding.
Pursuant to 42 C.F.R. § 405.1026, ALJs cannot even conduct a hearing if they are prejudiced or partial to any party, or if they have an interest in the matter pending for resolution. To date, we have not seen an ALJ that has been “prejudiced or partial to any party.”
IV. What Are Your Chances of Winning?
To be clear, health care providers do not always prevail — every case stands or falls based on its merits. Moreover, just because you have experienced a positive outcome with a particular ALJ on one occasion does not mean that you should expect a similar result when you are next in front of the same judge. ALJs are trained to weigh the facts and the evidence.
While in past years it was rare for CMS or its contractors to participate in a Medicare appeals hearing, it is now commonplace for representatives of the Zone Program Integrity Contractor (ZPIC) or the Program Safeguard Contractor (PSC) to now attend the hearing and seek to provide support for their initial denial actions. As a result, the job of ALJ is now more complicated than ever. Although the proceeding is not supposed to be “adversarial,” it can get quite heated when ZPIC representatives are there trying to defend their denial decisions. Be prepared. Have experienced legal counsel represent your interests.
The current administrative Medicare appeals system has been specifically designed to insulate ALJs from the actual and / or implied pressures which could conceivably be exerted by CMS and its various contractors. When appearing before an ALJ, it is important to remember that the process has become significantly more complicated now that CMS contractors are now regularly attending and participating in the process. In light of these changes, it is recommended that you engage experienced legal counsel to represent your interests in an ALJ hearing. Although the system and its Judges are set up to provide a fair opportunity for you to present your case and be heard, it is much more difficult to prevail when up to three representatives of the ZPIC (a lawyer, a statistician and a clinician) are also participating in the proceedings, providing support and explanations for their prior Medicare claim denial decisions.
Robert W. Liles and other Liles Parker attorneys have extensive experience representing both Part A and Part B providers and suppliers in the Medicare appeals process, including hearings at the ALJ stage of appeal. Please feel free to contact Robert for a complimentary consultation. He can be reached at: 1 (800) 475-1906.
(December 29, 2010):
Many health care providers are familiar with the revised administrative appeals process for contesting denied Medicare claims. In exercising their appeal rights, many providers (or their legal counsel) have appealed denied claims through the second level of appeal, submitting their claims and arguments in support of payment to the Qualified Independent Contractor (QIC) responsible for hearing reconsideration appeals. Q2 Administrators (Q2A) is one of the contractors selected by the Centers for Medicare and Medicaid Services (CMS) to serve as a QIC.
Notably, Q2A has also been awarded the first task order to serve as Administrative Qualified Independent Contractor (AdQIC). Q2A’s responsibilities as AdQIC are separate and distinct from its responsibilities as one of the general QICs chosen by CMS to serve as the reconsideration reviewer of denied Medicare claims.
III. Official Duties of an AdQIC:
The role played by Q2A as AdQIC is often misunderstood by both health care providers and attorneys alike. Officially, Q2A performs its AdQIC duties out of its headquarters in Columbia, South Carolina. As Q2A’s reflects, in its role as AdQIC, is responsible for performing a number of essential administrative appeal functions. As AdQIC, QA2 notes that the unit is responsible for:
- Developing training and standard work protocols.
- Analyzing appeal outcomes.
- Recommending improvements to the appeals process.
- Managing case files.
Sounds fairly innocuous doesn’t it? Unfortunately, the current AdQIC system represents a major challenge for prevailing providers to overcome. Rather than merely “analyzing appeal outcomes,” as Q2A’s website reflects, the AdQIC appears to primarily serve as CMS’ appellate counsel, challenging favorable decisions by Administrative Law Judges (ALJs) with which it disagrees. To be clear, we have seen no evidence that the AdQIC serves as an impartial reviewer of ALJ decisions. Instead, our review of the cases referred to the Medicare Appeals Council (MAC) by the AdQIC suggests that unit is only interested in cases where the presiding ALJ has ruled in favor of the provider.
So what does as AdQIC really do? As Q2A’s website reflects, the company’s stated mission is to:
“[P]rovide support and services to the Federal government and other customers that reflect our ideal of ‘Quality to the Next Level.’ Q2A delivers consistent, quality outcomes and solutions for our customers by utilizing sound processes and a stringent quality assurance program. (emphasis added).
On its face, Q2A’s mission expressly reflects where its interests lie – the company’s focus is on delivering “consistent, quality outcomes and solutions” for its “customers.” In this case, the customer is CMS — not health care providers, and frankly, that’s undersandable. As the “Frequently Asked Questions” section Q2A’s website reflects:
Question: What happens after I receive a favorable (emphasis added) ALJ Decision?
Answer: Favorable rulings by an Administrative Law Judge (ALJ) do not result in immediate payment of claims.
Once an ALJ rules favorably on an appeal, the Office of Medicare Hearings and Appeals (OMHA) forwards the decision and case file to the Administrative Qualified Independent Contractor (AdQIC).
The AdQIC subsequently has 10 days to update the appeals tracking system and to decide whether the case requires further review by the Medicare Appeal Council or is sent to the Medicare contractor for payment. The AdQIC’s review cannot begin until it receives the case file. Regulations do not require the OMHA to forward case files within a given amount of time.
If the AdQIC refers the case to the Medicare Appeals Council, the Medicare contractor that processed the original claim is notified. Effectuations (payment of claims) made by the contractor are then contingent upon the Medicare Appeal Council’s decision.
For ALJ decisions that require no further review, the AdQIC sends an effectuation notice to the contractor, who must then pay specified claim amounts within 30 days. Effectuations in which the contractor must calculate the amount may take up to 60 days.
While an AdQIC doesn’t have the authority to appeal a favorable ALJ decision to the MAC, it can (and often will) refer a case (where the provider prevailed) to the MAC and ask that the council review the decision. Two primary points of contention have been typically been argued by the AdQIC:
(1) Cases where the ALJ has overturned an extrapolation of damages previously imposed by a Zone Program Integrity Contractor (ZPIC), as part of its initial audit.
(2) Cases where the ALJ has held that a provider is not liable for alleged overpayments associated with one or more claims under Section 1870 of the Social Security Act.
In many (but not all) cases, the MAC will, in fact, open and review an ALJ’s favorable decision. The MAC may then remand the case back to the presiding ALJ for reconsideration of the contested points.
IV. Be Prepared — Don’t Go Into this Process Alone – Retain Experienced Legal Counsel:
As Medicare claims audit and assessment efforts increase (through CMS’ use of ZPICs, RACs and PSCs), health care providers will be under increasing pressure to ensure that statutory and regulatory coding and billing requirements are met. Despite your best efforts to remain compliant, you may find that your practice or clinic is subjected to review. Should that occur, we strongly recommend that you retain qualified, experienced legal counsel to represent your interests. In a number of cases, we have been retained by other law firms to assist with administrative appeals. When working with other law firms, the level of our involvement has varied from case to case.
V. When is a “Win” Truly a “Win”?
Unfortunately, it is becoming more and more difficult each year to rely on a favorable ALJ ruling. Over the past year, the AdQIC has become more aggressive than ever in challenging holdings with which it disagrees. As a result, it is important that your counsel plan for beyond the ALJ level when asserting defenses to the government’s arguments. While a number of arguments may be persuasive to an ALJ, the same arguments may also automatically generate a referral by an AdQIC to the MAC. When hiring an attorney to handle your Medicare claims case, be sure and ask prospective counsel the following:
- How much of your law practice is devoted to health law issues?
- Please describe the extent of your experience handling large, complex administrative appeals of denied Medicare claims.
- How often have you responded to AdQIC appeals of favorable ALJ decisions?
- How often have you handled MAC appeals?
- Can you provide provider references?
Hopefully, your practice will not face a large administrative appeal of denied Medicare claims. However, should such an event occur, you need to be ready to respond to the contractor’s audit. While there are no guarantees in this business, knowledge of the rules and experience handling administrative appeals may prove essential to increasing the likelihood of your success.
Liles Parker attorneys have extensive experience handling complex Medicare administrative appeals. Our attorneys have represented Home Health Agencies, Hospice Companies, Ambulance Companies, Chiropractic Clinics, Physical / Occupational / Speech Therapy Clinics, Nursing Homes, Physian Practices (E/M Claims), Psychology Practices, DME Companies and a wide variety of other Medicare Part A and Part B providers. Should your practice or clinic be audited by a ZPIC or RAC, give Robert W. Liles for a free consultation. He can be reached at: 1 (800) 475-1906.
(September 1, 2010):
I. Introduction — ZPIC Contractors Are Likely to Participate in Your ALJ Hearing:
As previously discussed, after representing health care providers for many years in administrative hearings, involving well over 10,000 Medicare claims this year alone, it has been our experience that Administrative Law Judges (ALJs) remain a provider’s single best opportunity to present its legal, regulatory and factual arguments in support of payment. While there are no guarantees, the ALJs we have practiced before have been attentive, knowledgeable, willing to listen to the provider’s viewpoint, and perhaps most importantly, FAIR. In recent years though, it has become more complicated for a health care provider to present it case during an ALJ hearing. This is due, at least in part, to the fact that ZPIC auditors are now often showing up at the ALJ hearing to advise the Judge the reason(s) they decided to deny your Medicare claims.
II. The Medicare Appeals Hearing Process:
Once a request for an ALJ hearing is filed, the Court generally takes one of three actions. It either:\
Conducts the hearing and issues a decision (either Favorable, Partially Favorable or Unfavorable),
Issues an order of dismissal of the appellant’s request for ALJ hearing, or
Remands a case back to the Qualified Independent Contractor (QIC) for additional necessary action.
When appealing individual claims, a Court may choose to rule on behalf of the provider, without the necessity of a hearing. However, in “big box,” multiple-claim, high dollar cases, a hearing is almost always held unless the appellant requests that the Court base its decision solely on the record, without the benefit fo testimony. When hearings are held, they are usually conducted by teleconference or video-teleconference. Upon request, the Court may (but is not required to) grant an “in-person” hearing. However, it has been our experience that ALJs prefer to conduct hearings by other means.
If a favorable (or, for that matter, unfavorable) ruling is issued by the Court, a number of steps remain before the decision can be effectuated. Medicare contractors (such as Intermediaries and Carriers – now, combined into entities known as “Medicare Administrative Contractors” (MACs)) do not immediately take action based the decision of the Court. Instead, once an ALJ issues the Court’s decision regarding a case, a copy of the ruling is sent by the respective Office of Medicare Hearings and Appeals (OMHA) to an organization known as the “Administrative Qualified Independent Contractor” (AdQIC). The AdQIC is then responsible for reviewing the decision and sending it to the responsible MAC for effectuation.
III. Rise of the AdQIC — A New Factor to Consider in the Medicare Appeals Process:
In 2004, Q2 Administrators (Q2A) was awarded the first task order to serve as an AdQIC under the new administrative appeals process by the Centers for Medicare and Medicaid Services (CMS). As Q2A’s website reflects, in its capacity as an AdQIC, the contractor is required to develop training and standard work protocols, analyze appeal outcomes, recommend improvements to the appeals process and manage case files.
While the AdQIC does, in fact, perform all of the above functions, the likelihood of their involvement in your case appears to have greatly increased over the past year. In a number of the cases we have handled, the AdQIC has aggressively sought to overturn both favorable legal arguments and holdings by ALJs invalidating fatally flawed statistical extrapolations applied by a Zone Program Integrity Contractor (ZPIC) or Program SafeGuard Contractor (PSC) in a case. While AdQICs do not have the authority to file an appeal with the Medicare Appeals Council (also referred to as the “MAC” — but not to be confused with Medicare Administrative Contractors which are are referred to by CMS as a “MAC”), they have gotten around this pesky issue by sending notices to the MAC outlining their concerns. The MAC has then been reviewing the decisions on its own authority. As a result, the AdQIC has effectively been granted administrative appeal authority, despite the fact that this function is not one of the enumerated tasks outlined for the entity by CMS or by statute.
In light of these developments, it is imperative that you retain counsel who is experienced responding to AdQIC notices (de facto appeals) to the MAC. Unlike other steps in the administrative appeals process, if your ALJ’s decision is challenged by an AdQIC to the MAC, you will have a short, limited amount of time to respond to the AdQIC’s arguments. It is strongly recommended that you work with an attorney who is experienced responding to an AdQIC challenge. An attorney who is knowledgeable of the MAC appeals process can properly advise you of your options at this point in the appeals process.
While the AdQIC’s new perceived role – as overseer and critic of the ALJs – can make the process even more costly and frustrating than usual, it has been our experience that the AdQIC’s legal arguments often mimic the positions taken by other contractors earlier in the process. Notably, we have yet to see (or even hear) of an AdQIC “appeal” of an ALJ decision that was unfavorable to the provider. As a result, we believe it is quite clear that the AdQIC is far from being a “disinterested” party.
IV. Don’t Handle a Medicare Appeals Hearing Alone – Hire an Experienced Attorney:
As Medicare claims audit and assessment efforts increase (through CMS’ use of ZPICs, PSCs and RACs), health care providers will be under increasing pressure to ensure that statutory and regulatory coding and billing requirements are met. Despite your best efforts to remain compliant, you may find that your practice or clinic is subjected to review. Should that occur, we strongly recommend that you retain qualified, experienced legal counsel to represent your interests. Even if you prevail before an ALJ, depending on the reasons relied on by the Court, there is a real chance that the AdQIC may seek to have the Court’s decision overturned by the MAC. When hiring an attorney, be sure and ask him the following:
How much of your law practice involves health law issues?
Please describe the extent of your experience handling large, complex administrative appeals of denied Medicare claims.
How often have you responded to AdQIC appeals of favorable ALJ decisions?
How often have you handled MAC appeals?
Can you provide provider references?
Hopefully, your practice will not face a large administrative appeal of denied Medicare claims. However, should such an event occur, you need to be ready to respond to the contractor’s audit. While there are no guarantees in this business, knowledge of the rules and experience handling administrative appeals may prove essential to increasing the likelihood of your success.
Robert W. Liles and other Liles Parker attorneys have extensive experiences representing Part A and Part B health care providers in connection with Medicare appeals. Should you require additional information regarding these issues, call Robert for a free consultation. He can be reached at: 1 (800) 475-1906.
(August 30, 2010):
I. Introduction — “Medical Necessity” Issues Presented:
Health Data Insights (HDI), the Centers for Medicare & Medicaid Services (CMS) Recovery Audit Contractor (RAC) responsible for auditing health care providers in Region D, has announced it will immediately begin reviews on previously approved projects which involve the medical necessity of selected inpatient DRG payments. A complete list of the medical necessity “issues” currently being examined by HDI can be found on its Website.
II. Scope of Responsibilities Assigned to Health Date Insights:
RACs, such as HDI, contract with the CMS to perform post-payment reviews of Medicare claims to find overpayments (and theoretically, underpayments in return for a percentage (from 9 percent to 12.5 percent) of the amounts recovered. Put simply, they “eat what they kill.” HDI was awarded responsibility for handling Region D audits. Region D consists of 17 States and 3 U.S. territories (Alaska, Arizona, California, Hawaii, Iowa, Idaho, Kansas, Missouri, Montana, North Dakota, Nebraska, Nevada, Oregon, South Dakota, Utah, Washington, Wyoming, Guam, American Samoa and Northern Marianas). HDI’s contingency fee contract award dollar amount is 9.49% according to CMS. The 29 DRGs where HDI will be examining “medical necessity” requirements, include certain procedures related to:
Nervous System Disorders
Endocine, Nutritional & Metabolism Disorders
Kidney & Urinary Tract Disorders, and
Blood & Immunological Disorders
III. Provider Concerns:
A continuing concern of health care providers is that the RAC determinations of medical necessity will be performed by personnel with little, if any, specific knowledge of the specific claims at issue. Given the RAC business model, providers remain worried that audits will not reflect a fair and reasonable application of applicable coverage requirements. This is especially worrisome in light of the fact that approximately 41 percent of overpayments in the demonstration project were due to medical necessity determinations.
III. Audit and Appeal Considerations:
As set out CMS’ June 2010 reported entitled “The Medicare Recovery Audit Contractor (RAC) Program — Update to the Evaluation of the 3-Year Demonstration,” as of 03/09/10, the cumulative number of claims with overpayment determinations identified by RACs has grown to 598,238. Notably, only 76,073 of these overpayments were appealed by health care providers. Of the claims appealed, over half were decided in favor of the health care provider. Interestingly, HDI had one of the highest number of claims denials overturned on appeal, in favor of the appealing provider. Four basic steps to be taken when preparing for a RAC audit include:
(1) Monitor issues of interest to the government and its contractors. Are the services you provide currently under scrutiny by RACs and other Medicare contractors? You should keep abreast of current enforcement initiatives and mistakes made by other providers. Learn from their mistakes.
(2) Know where your current weaknesses are and fix them. This typically requires that you conduct an internal audit of your coding, billing and operational practices. Take care when engaging an outside “consultant.” We have seen numerous cases where the consultant conducts an internal assessment and identifies multiple problems with the provider’s prior and current practices. Unfortunately, few consultants consider the fact that their adverse report to the provider will likely not be privileged. As a result, if the provider is ever investigated, the report could easily serve as a roadmap for the government. Prior to conducting an internal audit – call your attorney!
(3) Know your rights. If your practice is audited, know your rights both during the audit and once the audit results are issued by the contractor. There is a fine line between exercising your rights as a provider and being perceived by a contractor as refusing to cooperate in their review. You should immediately call your attorney to clarify which actions must be taken if your practice is subjected to a site visit by a Medicare contractor. The best practice would be for you to call your attorney today and discuss how you should respond in the event of a site visit. CMS takes allegations of non-cooperation very seriously. Should the contractor argue that you refused to cooperate in their efforts, you could find the action taken by the contractor is to seek a revocation of your Medicare number. This is an especially sensitive issue.
(4) Have a firm understanding of how the Medicare appeals process works. Depending on the amount in controversy, you may choose to handle Medicare claims denials internally. As the use of data-mining increases, Medicare contractor reliance on provider profiling will continue to increase. While mere errors or mistakes should be returned to the government (or not appealed is properly denied by the contractor), should you find that claims were improperly denied, we recommend that you appeal such denials. RACs and other Medicare contractors will likely focus on providers with high error rates.
While every case is different, health care providers should consider the following when faced with a RAC audit:
- The scope of RAC audits is expanding. In the past, hospitals and other “low-hanging fruit” were the focus of HDI and other RACs around the country. As a result, some physicians, small practice groups, clinics and other smaller providers have grown complacent in their compliance efforts. This is a mistake, as more issues are identified and approved, the RACs will be expanded the scope of their reviews. Now is the time to get your practice in order.
- ZPICs and PSCs continue to represent a greater danger to small physician practices and health care provider groups. Zone Program Integrity Contractors (ZPICs) and Program SafeGuard Contractors (PSCs) are not subject to the time, audit and service scope limitations imposed on RACs. The implementation of effective compliance efforts will help reduce the likelihood of liability should the practice be audited by a ZPIC, PSC or RAC.
- Beware of “canned” consultant solutions. As a search on Google will readily attest, consulting firms around the country are touting the latest RAC audit “tool” or audit response “template.” We recommend that you exercise caution when retaining any organization that “guarantees” results or seeks to dissuade you from engaging legal counsel support.
- Retain experienced health care counsel. Under the current appeal structure, there is a significant likelihood that your case will eventually be heard by an Administrative Law Judge (ALJ). Importantly, ALJs are lawyers — not typically clinicians. In defending your case, it is strongly recommended that you retain legal counsel, regardless of whether you ultimately decide to work with a consultant or employ a clinician as an expert witness. Legal counsel will be best situated to understand and argue the various legal arguments which may prove essential in winning your case.
While RACs have not represented much of a threat to individual physicians and small practice groups in the past, the future is likely to be quite different. Physicians must already contend with audits by ZPICs, PSCs, Medicaid Integrity Contractors (MICs), Medicaid Fraud Control Unit (MFCU) investigators and Comprehensive Error Rate Testing (CERT) contractors. The expansion of the RAC program will further increase the need for statutory and regulatory compliance. Physicians and small practice groups and organizations should avoid the misconception that their limited size and / or relative billings will keep them “off the radar,” thereby limiting their chances of being audited.
IV. ZPICs and PSCs are Continuing to Rely on Statistical Sampling in an Effort to Extrapolate Damages:
In our practice, we have seen a marked increase in the number of solo physicians and small providers groups who have been subjected to pre-payment and post-payment audits of their Medicare billings.
In the case of post-payment reviews, the vast majority of Medicare audits we have worked on have included the statistical extrapolation of damages by ZPICs and PSCs. We expect RACs to follw suit as the number of their audits increase. In defending a post-payment audit, it is essential that you examine the statistical methodology utilized and identify any flaws in the contractor’s approach. We have successfully convinced both Qualified Independent Contractors (QICs) and ALJs to invalidate statistical extrapolations based on mistakes in the process committed by the ZPIC or PSC. Arguments can be legal and / or methodology-based. In many cases, it is necessary to engage the assistance of a qualified statistical expert. Should you succeed – be ready to defend this decision before the Medicare Appeals Counsel (MAC). Over the past year, practically every invalidation of the statistical extrapolation of damages was appealed to the MAC by the Administrative QIC (AdQIC).
Health care providers must be proactive in their efforts to better comply with applicable Medicare coding and billing practices. Should your practice be placed on pre-payment audit or have its post-payment Medicare claims reviewed, we recommend that you immediately contact your health care attorney for assistance.
Robert W. Liles and other Liles Parker attorneys have extensive experience representing health care providers around the country in large Medicare administrative overpayment appeals cases. We would be happy to discuss your case, give our initial assessment and provide client references for you to call. Should you have questions regarding RAC, ZPIC or PSC audit processes, you may contact us for a complimentary consultation. We can be reached at 1 (800) 475-1906.
RACs Are Auditing Your Claims — What Should Physicians and other Medicare Providers Know about Appeals and Recoupment?
(July 2, 2010): CMS’ Recovery Audit Contractor (RAC) program is now permanent and nationwide. As we discussed in Part I of this series, while small providers were largely ignored during the demonstration program, physicians, home health, hospice, and durable medical equipment (DME) suppliers should be on the lookout for increased attention. In Part II, we discussed some ways providers can prepare for and respond to an audit request.
In this Part III, we will discuss a provider’s appeal options in the event that a RAC identifies an alleged overpayment as a result of its audit. It is important to remember that RACs are paid on a contingency fee basis and so are highly incentivized to seek out overpayment errors.
CMS’ enthusiastic trumpeting of the RAC demonstration program results seems to ignore the RACs’ reputation for overly aggressive auditing. Indeed, a June 2010 CMS program update reveals that, when providers chose to appeal a RAC determination, providers won 64.4% of the time. CMS has since implemented a requirement that the RAC remit its contingency fee if its audit determination is overturned at any level of appeal, not just the first level. Whether this will improve RACs dismal win rate on appeal remains to be seen.
I. What Are the Options to Appeal a RAC Determination of Overpayment?
First, providers that want to challenge the determination should be aware they have a very limited period of time to file for redetermination appeal if they wish to avoid recoupment. While a provider has 120 days to file for redetermination appeal, if they wait past day 30, the Medicare contractor (not the RAC) will initiate recoupment. Additional information regarding recoupment is discussed below.
Appealing a RAC claims denial follows the uniform Medicare Part A and Part B appeals process. The following deadlines are strictly adhered to.
Medicare Appeal Deadlines
|Level||Stage||Reviewing Entity||Filing Deadline|
|1st||Redetermination||Medicare Administrative Contractor (MAC)||
120 days of receiving notice of initial determination
|2nd||Reconsideration||Qualified Independent Contract (QIC)||
180 days of receiving notice of redetermination decision
|3rd||Hearing||Administrative Law Judge (ALJ)||
60 days of receipt of the QIC’s decision
|4th||Administrative Review (HHS)||Medicare Appeals Council (MAC)||
60 days of receipt of the ALJ’s decision
|5th||Judicial Review||Federal District Court||
60 days of receipt of the MAC’s decision
Our experience has shown that ALJs are honest brokers who are the most willing to hear arguments from providers. While they will follow the law and applicable coverage provisions, they tend to be much more thorough and consider the provider’s arguments in support of payment. In many cases, this has been the first level that a fair and reasonable consideration of the evidence has occurred.
II. What about Recoupment Issues? Are They Applicable in Connection with a RAC Audit?
Notably, the deadlines above are filing deadlines only. Medicare begins recouping funds well before the time frame for appeal has lapsed at each stage. Medicare begins recouping funds only 30 days after the RAC’s initial determination and only 60 days after its redetermination decision. This puts significant pressure on providers to file for first and second level appeals more rapidly than they otherwise might. In later stages, recoupment cannot be stayed by filing the appeal.
|Day One - Initial Demand of a RAC Overpayment Determination||First Level Appeal — Redetermination (Handled by a Medicare Administrative Contractor)||Second Level Appeal — Reconsideration (Handled by a Qualified Independent Contractor)||Appeals to Administrative Law Judge|
|The process begins when a Demand Letter, with appeal rights, is sent to the Provider by the Medicare Administrative Contractor. Don’t confuse this with the overpayment results letter sent by the RAC.If there is no appeal and the provider does not remit the demanded amount, offset begins on day 41.||To avoid recoupment starting on day 41, the Provider must request the 1st level appeal within 30 days from the date of the Demand Letter. If a redetermination appeal request is received after day 30, recoupment will still on day 41 must will stop when the appeal letter is processed. The recoupment process will stop until the redetermination appeal decision is issued — at that point, the clock starts again and recoupment will start up unless a reconsideration appeal is filed within 60 days of the date of the redetermination appeal decision letter.||To avoid recoupment beginning or resuming after a redetermination decision letter is received, the provider must submit the 2nd level appeal request to the QIC within 60 days from the date of the redetermination decision letter. If an appeal request is received after day 60, the recoupment process will stop on the remaining balance after the reconsideration appeal is received and logged in by the QIC.||Limitations on recoupment end after the 2nd level appeal decision is issued. Recoupment shall begin 30 days from the QIC appeal decision and will continue until the debt is satisfied, whether or not the provider appeals to the ALJ or subsequent levels.|
Separate from and prior to the appeals process, a provider may “rebut” any proposed recoupment action within 15 days of the notice of impending recoupment. A provider may issue a statement to the claims processing contractor providing evidence as to why the overpayment action should not take place. This process does NOT provide an opportunity to review the medical documentation or the audit determination itself.
(March 11, 2010): Medicare audits can be extraordinarily stressful for your organization. Are your documentation practices compliant? If not, you should take immediate steps to address any deficient practices you might have. New Medicare audits are on the way!
According to the White House, President Obama has announced that he intends to back bipartisan plans to stamp out waste in government-run medical programs for the elderly and needy. The White House said the new effort to root out improper payments in the Medicare and Medicaid programs could double taxpayer savings over the next three years to at least $2 billion.
I. The White House is Committed to Fighting Health Care Fraud and Abuse.
As the White House noted, “We cannot afford nor should we tolerate this waste of taxpayer dollars,” The government believes that approximately $54 billion was lost through improper Medicare and Medicaid payments in 2009. Medicare is the government-run program covering elderly Americans and Medicaid is for the country’s poorest.
President Obama is seeking to crack down on waste and fraud as his administration strives to secure an overhaul of the $2.5 trillion healthcare system to contain costs and expand coverage to tens of millions of more Americans. The action endorses Republican-backed proposals on alleged health care wrongdoers.
II. Are More RAC-Type Medicare Audits Ahead of Us?
The plan will offer private auditors a share of the money that they recoup in order to encourage them to work harder to uncover improper payments under Medicare and Medicaid. President Obama is also expected to back bipartisan legislation to expand the ability of government agencies to undertake these so-called payment recapture audits by providing more funds.
As many health care providers will readily attest, over the past year, it appears that there has been a marked increase in ZPIC post-payment Medicare audits, almost all of which are accompanied by demands for extrapolated damages. Once again, this points to the importance of sefl-assessment and an effective compliance strategy.
III. Steps You Should Take to Prepare for a Medicare Audit.
If you have not already done so, we strongly recommend that you implement an effective Compliance Plan — one that has been specifically designed to help present the “risks” that your practice face from day-to-day. Over the years, our firm has represented a number of health care providers around the country in an effort to improper claims denials overturned. This new risk will increase the likelihood that providers who have not been subjected to ZPIC or RAC audits in the past may now find themselves being examined by RAC-like auditors in the future.
Coupled with existing audit risks, sole practitioners, small practice groups and clinics will find their coding and billing practice under the spotlight. Unfortunately, based on recent cases we have handled, it appears that some ZPICs appear to impose their own views regarding what is required, well beyond the four corners of CMS-authorized provisions set out under LCDs and LMRPs covering the services at issue. Fortunately, when faced with the facts, ALJs have applied a reasonable approach.
We recommend that health care providers carefully review their documentation practices. How would your documentation look to you if you were in the place of an outside auditor? In order to lessen the likelihood that ZPICs, PSCs, RACs and other third-party reviewers will deny your claims — you need to fully understand and apply the coverage and payments which apply to your claims / services. Don’t wait until you are facing a Medicare audit. Take action now.