Medicare Appeals Have Become More Complex Than Ever.

(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.

You’ve got to be kidding. . . more Medicare audits on the way?

(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.

Should you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.