Category Archives: Post-Payment Reviews
Right now, CMS allows physicians to pick to follow the 1995 or 1997 guidelines for determining whether an evaluation and management (“e/m”) visit qualifies for a 99214 versus a 99213. The biggest difference between the two policies is that the 1995 guideline allows you to check by systems, rather than individual organs. Starting January 1, 2023, there are a lot of revisions, including a 2021 guidance that will be used. But, for dates of service before 2021, physicians can pick between 1995 and 1997 guidance.
Why is this an issue?
If you are a family practitioner and get audited by Medicare, Medicaid, or private pay, you better be sure that your auditor audits with the right policy.
According to CPT, 99214 is indicated for an “office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a detailed history, a detailed examination and medical decision making of moderate complexity.”
Think 99214 in any of the following situations:
- If the patient has a new complaint with a potential for significant morbidity if untreated or misdiagnosed,
- If the patient has three or more old problems,
- If the patient has a new problem that requires a prescription,
- If the patient has three stable problems that require medication refills, or one stable problem and one inadequately controlled problem that requires medication refills or adjustments.
The above is simplified and shorthand, so read the 1995 and 1997 guidance carefully.
An insurance company audited a client of mine and clearly used the 1997 guidance. On the audit report, the 1997 guidance was checked as being used. In fact, according to the audit report, the auditors used BOTH the 1997 and 1995 guidance, which, logically, would make a harder, more stringent standard for a 99214 than using one policy.
Now the insurance company claims my client owes money. However, if the insurance company merely applied the 1995 guidance only, then, we believe, that he wouldn’t owe a dime. Now he has to hire me, defend himself to the insurance company, and possibly litigate if the insurance company stands its ground.
Sadly, the above story is not an anomaly. I see auditors misapply policies by using the wrong years all the time, almost daily. Always appeal. Never roll over.
Sometimes it is a smart decision to hire an independent expert to verify that the physician is right, and the auditors are wrong. If the audit is extrapolated, then it is wise to hire an expert statistician. See blog. And blog. The extrapolation rules were recently revised…well, in the last two or three years, so be sure you know the rules, as well. See blog.
Auditors are not lawyers. Some auditors do not even possess the clinical background of the services they are auditing. In this blog, I am concentrating on the lack of legal licenses. Because the standards to which auditors need to hold providers to are not only found in the Medicare Provider Manuals, regulations, NCDs and LCDs. Oh, no… To add even more spice to the spice cabinet, common law court cases also create and amend Medicare and Medicaid policies.
For example, the Jimmo v. Selebius settlement agreement dictates the standards for skilled nursing and skilled therapy in skilled nursing facilities, home health, and outpatient therapy settings and importantly holds that coverage does not turn on the presence or absence of a beneficiary’s potential for improvement.
The Jimmo settlement dictates that:
“Specifically, in accordance with the settlement agreement, the manual revisions clarify that coverage of skilled nursing and skilled therapy services in the skilled nursing facility (SNF), home health (HH), and outpatient therapy (OPT) settings “…does not turn on the presence or absence of a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care.” Skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.”
This Jimmo standard – not requiring a potential for improvement – is essential for diseases that are lifelong and debilitating, like Multiple Sclerosis (“MS”). For beneficiaries suffering from MS, skilled therapy is essential to prevent regression.
I have reviewed numerous audits by UPICs, in particular, which have failed to follow the Jimmo settlement standard and denied 100% of my provider-client’s claims. 100%. All for failure to demonstrate potential for improvement for MS patients. It’s ludicrous until you stop and remember that auditors are not lawyers. This Jimmo standard is found in a settlement agreement from January 2013. While we will win on appeal, it costs providers money valuable money when auditors apply the wrong standards.
The amounts in controversy are generally high due to extrapolations, which is when the UPIC samples a low number of claims, determines an error rate and extrapolates that error rate across the universe. When the error rate is falsely 100%, the extrapolation tends to be high.
While an expectation of improvement could be a reasonable criterion to consider when evaluating, for example, a claim in which the goal of treatment is restoring a prior capability, Medicare policy has long recognized that there may also be specific instances where no improvement is expected but skilled care is, nevertheless, required in order to prevent or slow deterioration and maintain a beneficiary at the maximum practicable level of function. For example, in the regulations at 42 CFR 409.32(c), the level of care criteria for SNF coverage specify that the “. . . restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.” The auditors should understand this and be trained on the proper standards. The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition.
When you are audited by an auditor whether it be a RAC, MAC or UPIC, make sure the auditors are applying the correct standards. Remember, the auditors aren’t attorneys or doctors.
Merry Christmas and Happy Hanukkah! I wanted to thank all my readers for TEN YEARS of this blog! Can you believe it has been 10 years? I started this blog in 2012, and the year is about to turn to 2023!! I going into my 11th year of blogging about Medicare and Medicaid regulatory compliance litigation. Whew! I tell you what: being a full-time attorney, a part-time blogger, mom, and wife is tiring! Try it. You’ll see. Try it for 10 years!
I am so proud to have created a career out of defending health care providers across the country, from HI to AL to NY to FL and everywhere in between.
My birthday is January 7th, right after Christmas and New Year’s Day. I am one year closer to getting Medicare (I cannot wait), but since I rely on private pay health insurance, I am giving myself a special Christmas present to end the year and “wind-down” the health spending plan. I will be undergoing a root canal tomorrow, the 21st of December.
Root canals are not fun. In fact, they remind me of undergoing a Medicare and/or Medicaid audit. No one wants them done, but you got to do it.
I suggest conducting self audits regularly, especially now with the Public Health Emergency (PHE) ending at some point.
The first step for a medical practice or organization is to select the timeframe that will be reviewed during the audit. The timeframe should be large enough to produce meaningful results. For example, in its OIG Data Brief, the OIG looked at a year’s worth of data, from March 1, 2020, through February 28, 2021. There are some key dates and regulations that practices or organizations need to consider when selecting the timeframe. These include:
- January 31, 2020: HHS announced the COVID-19 PHE, which was determined to have existed since January 27, 2020.
- March 27, 2020: The Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law.
- March 31, 2020: CMS’ “Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency” became effective.
So many changes to Medicare and Medicaid rules and regulations were implemented during COVID. Some changes will continue after PHE ends and some will not.
Now more so than ever, putting your own facility through a thorough self-audit is imperative. You need to understand the policy changes pertinent to your health care service type and dates the changes occurred and when applicable. Before the “REAL” auditors come knocking on your facility’s door, prepare yourself. Consider hiring an attorney or medical compliance expert to conduct the self audit.
The next step in performing a self-audit is for the practice or organization to select a category of service to review. If the practice or organization provides multiple types of services, the focus should be on one category, such as office visits, for review. When reviewing office visit services, the Current Procedural Terminology (CPT) codes applicable to telehealth visits include, but are not limited to, Office or Other Outpatient Services (99201-99205 [new patient] and 99211-99215 [established patient]) and Non-Face-to-Face Telephone Services (99441-99443 [practitioners who may report E/M services] and 98966-98968 [practitioners who cannot bill independently]). Practitioners who cannot bill independently are qualified non-physician health care professionals, such as social workers, clinical psychologists, and certain therapists. Please note, CPT code 99201 was deleted effective January 1, 2021.
Looking forward to 2023 after my root canal…Cheers!
Dental services do not, historically, “gel-well” with Medicare and Medicaid. In fact, most dentists do not accept Medicare and Medicaid, and, quite frankly, I do not blame them. Accepting Medicare and/or Medicaid comes with accepting the fact that your dental practice can – and will – be audited by CMS or your State government at-will, at any time, for any reason. Your dental practice can be raided at any time by any federal agency, including the FBI, DOJ, OIG, alleging civil and criminal violations when you, as a dentist, had no clue that your medical records could be used against you, if not up to snuff…according to the governmental auditor. Perhaps more dentists would accept Medicare and/or Medicaid patients if the definition of “medically necessary” is broadened. More incentive to accept government programs is always good.
Dental benefits are covered by Medicare only in limited circumstances, and many people on Medicare do not have any dental coverage at all unless they pay for a Medicare Advantage (“MA”) plan. However, Medicare and Medicaid could cover more dental services if Congress or CMS broadens the definition of “medical necessity.” But, even with MA, the scope of dental benefits, when covered, varies widely and is often quite limited, which can result in high out-of-pocket costs among those with expensive dental needs.
Medicare and/or Medicaid will determine whether a dental service is essential – or “medically necessary” – for a beneficiary’s exasperating, primary medical condition. Congress has fallen short on expanding the legal definition of “medical necessary” regarding dental services for Medicare and Medicaid recipients.
In a June 29, 2022, letter to CMS Administrator Chiquita Brooks-LaSure, more than 100 members of the U.S. House of Representatives pled with CMS to expand its definition of “medically necessary” dental care. Lawmakers highlighted the serious issues stemming from the lack of access to affordable dental care. I do not know if you recall, but, in 2013-ish, I blogged about a young, African American boy, named Deamonte, who died in the emergency room from an abscessed tooth that ruptured, when that abscessed tooth could have been remedied by a dentist for a few hundred dollars. See blog.
Nearly half of Medicare beneficiaries (47%), or 24 million people, do not have dental coverage, as of 2019.
Almost half of all Medicare beneficiaries did not have a dental visit within the past year (47%), with higher rates among those who are Black (68%) or Hispanic (61%), have low incomes (73%), or who are in fair or poor health (63%), as of 2018.
In 2021, 94% of Medicare Advantage enrollees in individual plans (plans open for general enrollment), or 16.6 million enrollees, are in a plan that offers access to some dental coverage.
To those dentists or dental surgeons who do accept Medicare and/or Medicaid – THANK YOU!
Medicare and/or Medicaid audits for dental services, while not fun to deal with, are easily defensible…most of the time. A few years ago Medicaid sought to recoup money from dentists who provided services to women believed to be pregnant when the pregnancy was over. See blog. I thought it was absolutely ridiculous that your dentist has the burden to ensure a woman is or is not pregnant. I feel as though many dentists could be slapped by asking. Plus, the services were rendered, so a dentist should not have to pay to provide services.
Today, I am going to write about a hospital in Tennessee that underwent an audit, and the MAC determined that the hospital owed over $5 million. The hospital challenged both the OIG contractor’s sampling methodology and its determinations on specific claims by requesting a hearing before an ALJ. The District Court decision was published in September 2022. The reason that I want to make you aware of this case, is because there have been numerous Medicare provider appeals unsuccessfully challenging the extrapolation, and the ALJs upholding the extrapolations. In this case, the ALJ found the extrapolation in error, the Council reversed the ALJ on its own motion, and the district court reaffirmed the ALJ, saying the extrapolation was faulty. Whenever good case law is published, we want to analyze the Court’s reasoning so we, as attorneys, can replicate the winning arguments.
One of the main reasons that the district court agreed that the extrapolation was faulty was because no testimony supporting the OIG contractor’s extrapolation process or the implementation of its statistical sampling methodology were submitted to that hearing on June 11, 2020, and the contractor did not appear. It’s the mundane scene with an ALJ level appeal and the auditor failing to appear to prove the audit’s veracity. See blog.
In addition to finding that additional claims satisfied Medicare coverage & payment requirements, the ALJ also found that OIG’s statistical extrapolation process did not comply with § 1893 of the Social Security Act, nor with the MPIM’s guidance on statistical extrapolation.
The ALJ held that HHS policy requires that the OIG’s audit must be able to be recreated and that as the audit’s sampling frame utilized data from outside of the audit, the audit could not be recreated.
The Council subsequently reviewed the ALJ’s decision on its own motion and reversed that decision in part, finding that the ALJ’s determination that the sampling process was invalid was an error of law. The Council then concluded that the OIG contractor’s statistical extrapolation met all applicable Medicare legal and regulatory requirements.
The hospital appealed to the federal district court. The district court’s review consists of determining whether, in light of the record as a whole, the Secretary’s determination is supported by “substantial evidence.”
According to the Court, the hospital amply demonstrated that the Council did not have the authority to overturn the decision of the ALJ on own-motion review. Accordingly, the hospital’s Motion for Summary Judgement was GRANTED and the extrapolation was thrown out.
I hope everyone had a fantastic Thanksgiving and are now moving toward the Christmas or Hanukkah holiday. As I discussed last week, CMS and its contracted auditors are turning their watchdog eyes toward nursing homes, critical access hospitals (“CAHs”), and acute care hospitals (“ACHs”). You can hear more on this topic on Thursday, December 8th at 1:30 when I present the RACMonitor webinar, “Warning for Acute Care Hospitals: You Are a Target for Overpayment Audits.”
October 2022, OIG published a new audit project entitled, “Potentially Preventable Hospitalizations of Medicare-Eligible Skilled Nursing Facility Residents.”
Residents of nursing homes and long-term care facilities are frequently transferred to an Emergency Department as an inpatient when they need acute medical care. A proportion of these transfers may be considered inappropriate and may be avoidable, says OIG.
OIG identified nursing facilities with high rates of Medicaid resident transfers to hospitals for urinary tract infections (“UTIs”). OIG describes UTIs as being “often preventable and treatable in the nursing facility setting without requiring hospitalization.” A 2019 OIG audit found that nursing facilities often did not provide UTI detection and prevention services in accordance with resident’s individualized plan of care, which increases the chances for infection and hospitalization. Each resident should have their own prevention policy for whatever they are prone to get. My Grandma, for example, is prone to UTIs, so her personal POC should have prevention measures for trying to avoid contracting a UTI, such as drinking cranberry juice and routine cleansing. In addition to UTIs, OIG noted that previous CMS studies found that five conditions were related to 78% of the resident transfers to hospitals: pneumonia, congestive heart failure, UTIs, dehydration, and chronic obstructive pulmonary disease/asthma. OIG added a sixth condition citing that sepsis is considered a preventable condition when the underlying cause of sepsis is preventable. In my humble opinion, the only condition listed as preventable that is actually preventable is dehydration.
OIG’s new audit project involved a review of Medicare and Medicaid claims related to inpatient hospitalizations of nursing home residents with any of the six conditions noted previously. The audit will focus on whether the nursing homes being audited provided services to residents in accordance with the residents’ care plans and related professional standards (or whether the nursing homes caused preventable inpatient admissions due to non-compliance with care plans and professional standards).
What can you do to prepare for these upcoming audits? Review your facilities’ policies, procedures, and practices germane to the identification of the 6 conditions OIG flagged as preventable. Ensure that your policies and procedures lay out definitive steps to prevent or try to prevent these afflictions. Educate and train your staff of detection, prevention, treatment, and care planning related to the six conditions. Collect and analyze data of trends of frequency and cause of inpatient hospitalizations and determine whether these inpatient hospitalizations could have been prevented and how.
In summary, be prepared for audits of inpatient hospitalizations with explanations of attempted prevention. You cannot prevent all afflictions, but you can have policies in place to try. As always, it’s the thought that counts, as long as, it’s written down.
Today I want to talk about upcoming Medicare audits targeted toward Acute Care Hospitals.
In September 2022, OIG reported that “Medicare Part B Overpaid Critical Access Hospitals and Docs for Same Services.” OIG Reports are blinking signs that flash the future Medicare audits to come. This is a brief blog so be sure to tune in on December 8th for the RACMonitor webinar: Warning for Acute Care Hospitals: You’re a Target for Overpayment Audits. I will be presenting on this topic in much more depth. It is a 60-minute webinar.
For OIG’s report regarding the ACHs, OIG audited 40,026 Medicare Part B claims, with half submitted by critical access hospitals and the rest submitted by health care practitioners for the same services provided to beneficiaries on the same dates of service (“DOS”). OIG studied claims from March 1, 2018, to Feb. 28, 2021, and found almost 100% noncompliance, which constituted almost $1million in overpayments to providers.
According to the OIG Report, CMS didn’t have a system to edit claims to prevent and detect any duplicate claims, as in the services billed by an acute hospital and by a physician elsewhere. Even if the physician reassigned his/her rights to reimbursement to the ACH.
As you know, a critical access hospital cannot bill Part B for any outpatient services delivered by a health care practitioner unless that provider reassigns the claim to the facility, which then bills Part B. However, OIG’s audit found that providers billed and got reimbursed for services they did perform but reassigned their billing rights to the critical access hospital.
The question is – why did the physicians get reimbursed even if they assigned their rights to reimbursement away? At some point, CMS needs to take responsibility as to the lack having a system to catch these alleged overpayments. If the physicians were reimbursed and had no reason to know that they were getting reimbursed for services that they assigned to an ACH, there is an equitable argument that CMS cannot take back money based on its own error and no intent by the physician.
On a different note, I wanted to give a shout out to ASMAC, which is the American Society of Medical Association Counsel; Attorneys Advocating for America’s Physicians. It is comprised of general counsels (GCs) of health care entities and presidents of State Medical Societies. ASMAC’s topics at conferences are cutting-edge in our industry of defending health care providers, interesting, and on-point by experts in the fields. I was to present there last week in Hawaii on extrapolations in Medicare and Medicaid provider audits. Thankfully, all their conferences are not in Hawaii; that is too far of a trip for someone on the East Coast. But you should look into the association, if ASMAC sounds like it would benefit you or you could benefit them, join.
Extrapolated audits are the worst.
These audits under sample and over extrapolate – almost to the point that some audits allege that you owe more than you were paid. How is that fair in our judicial system? I mean, our country was founded on “due process.” That means you have a right to life, liberty, and the pursuit of happiness. If the government attempts to pursue your reimbursements at all, much less a greater amount than what you received, you are required notice and a hearing.
Not to mention that OIG conducted a Report back in 2020 that identified numerous mistakes in the extrapolations. The Report stated: “CMS did not always provide sufficient guidance and oversight to ensure that these reviews were performed in a consistent manner.” I don’t know about you, but that is disconcerting to me. It also stated that “The test was associated with at least $42 million in extrapolated overpayments that were overturned in fiscal years 2017 and 2018. If CMS did not intend that the contractors use this procedure, these extrapolations should not have been overturned. Conversely, if CMS intended that contractors use this procedure, it is possible that other extrapolations should have been overturned but were not.“
I have undergone hundreds of Medicare and Medicaid audits with extrapolations. You defend against these audits twofold: 1) by hiring an expert statistician to debunk the extrapolation; and 2) by using the provider as an expert clinician to discredit the denials. However, I am always dismayed…maybe that’s not the right word…flabbergasted that no one ever shows up on the other side. It is as if CMS via whatever contractor conducted the extrapolated audit believes that their audit needs no one to prove its veracity. As if we attorneys and providers should just accept their findings as truth, and they get the benefit of NOT hiring a lawyer and NOT showing up to ALJ trials.
In the above picture, the side with the money is CMS. The empty side is the provider.
In normal trials, as you know, there are two opposing sides: a Plaintiff and a Defendant, although in administrative law it’s called a Petitioner and a Respondent. Medicaid provider appeals also have two opponents. However, in Medicare provider appeals, there is only one side: YOU. An ALJ will appear, but no auditor to defend the merits of the alleged overpayment that you, as a provider, are accused of owing.
In normal trials, if a party fails to appear, the Judge will almost automatically rule against the non-appearing party. Why isn’t it the same for Medicare provider appeals? If a Medicare provider appears to dispute an alleged audit, the Judge does not rule automatically in favor of the provider. Quite the opposite quite frankly. The CMS Rules, which apply to all venues under the purview of CMS, which includes the ALJ level and the Medicare Appeals Council level, are crafted against providers, it seems. Regardless the Rules create a procedure in which providers, not the auditors, are forced to retain counsel, which costs money, retain a statistician in cases of extrapolations, which costs money, go through years of appeals through 5 levels, all of which the CMS Rules apply. Real law doesn’t apply until the district court level, which is a 6th level – and 8 years later.
Any providers reading, who retain lobbyists, this Medicare appeal process needs to change legislatively.
Happy Halloween. This year I am dressing as Freddy Krueger and my daughter, who is 17, says, “that’s so 80’s.” I guess some younger kids will just think I’m a spooky lady in a green and red sweater with knives for fingers. In honor of Halloween, I would like to tell you three ghost stories, of Medicare money that has vanished never to be found.
First, a ghoulish report from OIG states that CMS has not done enough to recoup Medicare payments found in 12 hospitals. Nothing like a report saying “CMS isn’t getting enough money” to make CMS “trick or treat” with more audits. According to the OIG report, CMS is short staffed, like almost every employer in America. Apparently, CMS claims to have too many phantoms instead of employees to track down every dollar, which I must say, makes me superstitious. If CMS is claiming to not have enough resources to track down money that has been targeted at 12 hospitals, how is it conducting the other audits nation-wide?
Among the 12 hospitals, supposedly, there is an eerie $82 million allegedly owed to CMS.
OIG recommended recouping all the money, but, according to OIG, CMS has provided insufficient information. Specifically, CMS did not provide information on the status of appeals hospitals levied against OIG’s overpayment findings. CMS didn’t provide information on the reason for the appeal or status of the action. Personally, I am just happy the hospitals appealed.
The second ghost story entails CMS’ continual audit of providers, especially the Medicare Advantage plans, which are nightmares. CMS has agreed to release the audits of 90 MA plans conducted between 2011 and 2013. These records are expected to demonstrate more than $600 million in MA overpayments due to alleged upcoding. Chilling!
Finally, a NC hospital system, Atrium Health, publicly announced that in 2019 it provided $640 million to Medicare patients that were never paid for. You would think this spine chilling unless you knew the tax breaks associated with the charity. But for the same year that Atrium’s website says it recorded the $640 million loss on Medicare, the hospital system claimed $82 million in profits from Medicare and an additional $37.2 million in profits from Medicare Advantage in a federally required financial document. Sleight of hand and hocus pocus!
The issue today is whether health care auditors can double-dip. In other words, if a provider has two concurrent audits, can the audits overlap? Can two audits scrutinize one date of service (“DOS”) for the same consumer. It certainly doesn’t seem fair. Five years ago, CMS first compiled a list of services that the newly implemented RAC program was to audit. It’s been 5 years with the RAC program. What is it about the RAC program that stands out from the other auditor abbreviations?
We’re talking about Cotiviti and Performant Recovery; you know the players. The Recovery Audit Program’s mission is to reduce Medicare improper payments through the efficient detection and collection of overpayments, the identification of underpayments and the implementation of actions that will prevent future improper payments.
RACs review claims on a post-payment basis. The RACs detect and correct past improper payments so that CMS and Carriers, and MACs can implement actions that will prevent future improper payments.
RACs are also held to different regulations than the other audit abbreviations. 42 CFR Subpart F dictates the Medicaid RACs. Whereas the Medicare program is run by 42 CFR Subchapter B.
The auditors themselves are usually certified coders or LPNs.
As most of you know, I present on RACMonitor every week with a distinguished panel of experts. Last week, a listener asked whether 2 separate auditors could audit the same record. Dr. Ronald Hirsh’s response was: yes, a CERT can audit a chart that another reviewer is auditing if it is part of a random sample. I agree with Dr. Hirsh. When a random sample is taken, then the auditors, by definition, have no idea what claims will be pulled, nor would the CERT have any knowledge of other contemporaneous and overlapping audits. But what about multiple RAC audits? I do believe that the RACs should not overlap its own audits. Personally, I don’t like the idea of one claim being audited more than once. What if the two auditing companies make differing determinations? What if CERT calls a claim compliant and the RAC denies the claim? The provider surely should not pay back a claim twice.
I believe Ed Roche presented on this issue a few weeks ago, and he called it double-dipping.
This doesn’t seem fair. What Dr. Hirsh did not address in his response to the listener was that, even if a CERT is allowed to double-dip via the rules or policies, there could be case law saying otherwise.
I did a quick search on Westlaw to see if there were any cases where the auditor was accused of double-dipping. It was not a comprehensive search by any means, but I did not see any cases where auditors were accused of double-dipping. I did see a few cases where hospitals were accused of double-dipping by collecting DSH payments to cover costs that had already been reimbursed, which seems like a topic for another day.