|
The Uniform Medicare Appeals Process and You
|
As a follow up to my recent presentation to the ACPA CME Conference, I offer you the following three-part article concerning how to deal with a Medicare audit if you are a medical provider to pain patients. By the very nature of your specialty, treating pain, you are more prone to undergoing a Medicare audit.
At some stage in your career, you are bound to be a participant in a Medicare audit. Your local MAC has asked to review many of your medical records. Being a law-abiding medical provider, you send them the records, in a timely fashion. Eventually, you receive a letter that includes Medicare’s initial determination. For reasons spelled out in the letter, Medicare wants an amount of money returned to them. You read the letter and read it again. You know that you treated every one of those patients on all the dates in question. You treated them in a caring and appropriate fashion. You gave them your time and your effort. Now, they want the money returned. You note that in the letter it discusses rights of appeal and something about a rebuttal. Not being a healthcare attorney, you are somewhat confused as to what to do.
Lawrence Kobak, Esq.
Senior Counsel, Frier Levitt
[email protected]
516-410-2835
Dr. Lawrence F. Kobak, DPM, Esq., is Senior Counsel in Frier Levitt’s Healthcare Department, working in the New York office. Prior to joining Frier Levitt, Larry was a partner at Kern, Augustine, PC, and at Abrams, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP where he was director of the firm’s Office of Professional Medical Conduct (OPMC) and Office of Professional Discipline (OPD) Defense. Larry has extensive experience representing physicians in connection with licensure issues, as well as successfully defending physicians before Medical Boards, OPMC, OPD investigations, as well as Medicare Fraud, Fraud & Abuse, Hospital Actions, RAC Audits, Medicare Audits, OIG Fraud, Health Care Fraud, Medical Audits, and Health Plan Billing Audits. He is the General Counsel to the Pennsylvania, New York, Tennessee Pain Societies and the General Counsel to the Pain Society of the Carolinas.
As a licensed Podiatrist prior to becoming an attorney, he served as the international president of the Academy of Ambulatory Foot and Ankle Surgery. Larry is a fellow of the Academy of Ambulatory Foot and Ankle Surgery, Diplomate of the American Board of Podiatric Surgery, Ambulatory Division, Diplomate of the American Board of Quality Assurance and Utilization Review Physicians, Diplomate of the American Academy of Pain Management, and Diplomate of the American Institute of Foot Medicine.
After receiving his DPM at New York College of Podiatric Medicine, Larry went on to earn his J.D. at Touro Law School where he received the honor of Class Valedictorian.
At some stage in your career, you are bound to be a participant in a Medicare audit. Your local MAC has asked to review many of your medical records. Being a law-abiding medical provider, you send them the records, in a timely fashion. Eventually, you receive a letter that includes Medicare’s initial determination. For reasons spelled out in the letter, Medicare wants an amount of money returned to them. You read the letter and read it again. You know that you treated every one of those patients on all the dates in question. You treated them in a caring and appropriate fashion. You gave them your time and your effort. Now, they want the money returned. You note that in the letter it discusses rights of appeal and something about a rebuttal. Not being a healthcare attorney, you are somewhat confused as to what to do.
- Letter of Rebuttal You have 15 days from the receipt of the letter of initial determination that Medicare is demanding a recoupment of money already sent, to file a rebuttal letter with Medicare. The purpose of this letter is not to argue your case. It is a letter to Medicare that explains why Medicare should not begin to recoup the money by offsetting the money from your future payments. It must include the number on the Demand Letter you received from CMS, your NPI number, your Provider Transaction Access Number (PTAN), and content that explains why Medicare should not begin the offset process. It might be that the medical provider never received the original record request, and she had 100% denial due to failure to provide any records. It may be due to something in the findings that is incorrect on its face, such as no reason was given for a denial, or the recoupment is for patients that are not yours. Another note of caution; the CMS is very particular about the Letter of Rebuttal arriving in 15 days or sooner. Most of the addresses you will be asked to mail them to are PO Boxes. You cannot send Certified mail to a P.O. Box. If you are wise enough to use an experienced legal team to assist you, you must get them your initial determination letter as soon as possible, or you will run out of time for them to prepare and file your Letter of Rebuttal.
- The Legal Team. The legal team concept was just mentioned. By that, one does not mean there are multiple lawyers that are double billing you for doing the same thing. The team should consist of an experienced healthcare attorney as well as an experienced, well-credentialed audit expert/professional coder, who are capable of revieing your medical records and bills. They should know how to handle virtually illegible medical records, and produce a certified, printed transcription along with the records. They should know the applicable “local coverage determinations” (LCDs), as well as the national coverage determinations for each applicable code at issue. They must be able to infer information from other information in your records. The team should be able to sort through a maze of legal and medical terminology. Thoroughly knowing the rules, such as the 15-day Rebuttal letter, could make the difference between money continuing to flow into your practice, and no money coming in.
- First Level Appeal. In prior years, the local MACS, the Medicare Administrative Contractor, would claim that sometimes, their initial determination, with the audit findings, would find that the medical provider was owed money! Please, everyone whoever received a check from CMS after an audit, raise their hand. Seeing no hands, it is safe to assume that most of you, who have been audited by a Medicare MAC, had an initial finding that you owed some money back to Medicare.
If you want to appeal the findings, you must submit a request for redetermination to the MAC, within 120 days after the date of receipt of the initial determination letter. This is also known as the Reconsideration Appeal. You will generally find the MACs rigid with this requirement. Unless you can prove it incorrect, you are safe to add 5 days to the date on the initial determination letter to the 120 days. In other words, they allow 5 days for the delivery of the initial determination letter.
While a different person will go over your appeal papers than performed the initial audit, they are both working for the same MAC at the first level of appeal. They are unlikely to overturn, in total, their own MAC’s findings.
The MAC will review all documentation you submit, including your own expert’s report, or any additional documentation you did not already submit when asked for your patient charts for the initial audit. The new reviewers may also do their own research.
The MAC’s Redetermination of your first level appeal should be completed within 60 days. Sometimes, it takes longer to complete. While the medical provider will not generally be victorious at this level, it is of the utmost importance to carefully read the particularized results of the appeal. It should give you more insight as to what is bothering the MAC and the real reasons, they are asking for money back. A good legal team will be able to decipher this result, benefiting you for the higher levels of appeal. If as expected, this level of appeal does not produce the hoped-for results, you have 180 days (plus 5 days added for delivery) from the date of the Redetermination findings (first level of appeal) to file your second level of appeal, also known as, the QIC or Reconsideration appeal. QIC stands for Qualified Independent Contractor. - Second Level Appeal. Keep in mind that the first level of appeal might have been partially successful. You can still appeal the part that is still being denied. Any evidence, such as charts, bills, or invoices, must be submitted with your second level appeal. Any later levels of appeal cannot include any new evidence, without the Administrative Law Judge’s approval. This is significant.
Like the first level of appeal, your appeal will be in writing. There is no hearing or oral argument. Unlike the first level of appeal, if medical necessity or treatment is involved, rendered by a medical provider, a medical provider will participate in the review. As an aside, your legal team may advise you to employ prior dates of treatment to those that are being audited. Those prior dates might establish medical necessity. This and knowledge of other fine points, make the legal team essential to your defense. The QIC’s address is given near the end of the results from the first level appeal. You must send your second level appeal to that address.
The QIC may address new issues that were not addressed by the first level appeal reviewers. This frequently occurs. They must follow the national coverage determinations for the issues at hand. While they are not obligated to follow the local coverage determinations, they frequently use them to guide their decisions. How the QIC expresses their written findings can be quite informative to you and your legal team if you decide to proceed to the third level of appeal. A word of warning; the first two levels, performed under the auspices of the MAC, usually do not change the initial audit findings all that much. Appeals at levels three and four are generally where real results tend to occur. Of course, this is only if you present persuasive written and oral arguments. - Third Level Appeal. This level of appeal involves a hearing presided over by an ALJ (Administrative Law Judge). Adding 5 days for delivery, your request for a third level appeal must be sent in within 65 days of the date on our second level appeal results letter. This hearing is conducted on the telephone. Your attorney, as well as an expert witness, is allowed. Preparation is essential. Again, this is where the use of your legal team operating in concert with you, their client, is essential. As a commonsense matter, the use of a legal team is of value when the dollar amount in controversy is high enough to warrant the cost of the legal team. For an amount in controversy of say, $5000, it does not make sense. For an amount in controversy of $40,000 or more, it makes sense. The exception to this, is if you involved in an UPIC, meaning a unified program integrity contactor audit. It is targeted against fraud and abuse. Even if they are asking for a small amount of money back, if you have a high error rate, that you let stand, that will target you for future audits, that will incorporate extrapolating error rates over all your Medicare patients. Additionally, many malpractice insurance companies include audit insurance in their benefits. Check your plans and make use of them. Many health law attorneys will accept what the plans pay as full or partial payment.
Recently, a practice decided to file the appeal application without attorneys. They failed to provide reasons, as required, why they were challenging the extrapolation. They were prevented from giving any testimony or evidence at the hearing concerning the extrapolation. The extrapolation over years, and many patients, is what causes Medicare’s demand for a refund, to reach very high numbers. Use of a knowledgeable law firm could have avoided such a situation.
The ALJ is not bound by LCDs but is bound by NCD (national coverage determinations). The ALJ is required to conduct and provide a decision within 90 days of when the request for a third level appeal was filed. While there used to be a significant backlog in these hearings, that has much improved in the last couple of years. Additionally, experience dictates that cogent arguments with appropriate evidence are better received and acted on, at this level of appeal. - Fourth Level of Appeal. If you are not satisfied with the result of the third level of appeal, you have 65 days, including the 5 days added for the mail to be received, to ask for a fourth level of appeal. The Appeals Council decides on a written submission unless you request a live hearing. No new evidence can be added. It can take a new look at the entire appeal. It is not bound by any of the prior findings or arguments. By looking at the deficiencies delineated in the third level of appeal decision, you can refine your arguments for the ALJ. Again, proper preparation of your legal team, with your expert witness, is essential. Like the third level of appeal, the ALJ is required to conduct the hearing and render a decision within 90 days of the request for the appeal.
- Fifth Level of Appeal. This involves the Federal District Court. The court will find the Appeals Council findings conclusive, if supported by “substantial evidence”. This appeal is rarely ever used by medical providers. The only time it might even be considered is if a very high amount of money is at stake, such as when a high recoupment amount is extrapolated through a representative amount of patient records. They are not easy to win and can be expensive.
- Conclusion. We have taken a deep dive in the world of Medicare Audit Appeals. Navigating this strange world for the medical provider can be daunting. An experienced legal team can be extremely helpful. As an ACPA member, feel free to call me or email me with any questions or concerns about this.
Lawrence Kobak, Esq.
Senior Counsel, Frier Levitt
[email protected]
516-410-2835
Dr. Lawrence F. Kobak, DPM, Esq., is Senior Counsel in Frier Levitt’s Healthcare Department, working in the New York office. Prior to joining Frier Levitt, Larry was a partner at Kern, Augustine, PC, and at Abrams, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP where he was director of the firm’s Office of Professional Medical Conduct (OPMC) and Office of Professional Discipline (OPD) Defense. Larry has extensive experience representing physicians in connection with licensure issues, as well as successfully defending physicians before Medical Boards, OPMC, OPD investigations, as well as Medicare Fraud, Fraud & Abuse, Hospital Actions, RAC Audits, Medicare Audits, OIG Fraud, Health Care Fraud, Medical Audits, and Health Plan Billing Audits. He is the General Counsel to the Pennsylvania, New York, Tennessee Pain Societies and the General Counsel to the Pain Society of the Carolinas.
As a licensed Podiatrist prior to becoming an attorney, he served as the international president of the Academy of Ambulatory Foot and Ankle Surgery. Larry is a fellow of the Academy of Ambulatory Foot and Ankle Surgery, Diplomate of the American Board of Podiatric Surgery, Ambulatory Division, Diplomate of the American Board of Quality Assurance and Utilization Review Physicians, Diplomate of the American Academy of Pain Management, and Diplomate of the American Institute of Foot Medicine.
After receiving his DPM at New York College of Podiatric Medicine, Larry went on to earn his J.D. at Touro Law School where he received the honor of Class Valedictorian.