Category Archives: UPICs

Fairness in Medicare: Post Payment Review in the Courts of Equity

As children, we say things are or are not fair. But what is fair? In law, fairness is “tried” in the courts of equity rather than law. Equitable estoppel and the defense of laches are arguments made in the courts of equity. Is it fair if you’ve been billing Medicare for services that you were told by CMS was billable and reimburse-able – for years – then, unexpectantly, CMS says, “Hey, providers, what you were told was reimburse-able, actually is not. In fact, providers, even though you relied on our own guidance, we will cease and desist from paying you going forward AND…we are now going back three years to retroactively collect the money that we should never have paid you…”

How is this fair? Yet, many of you have probably encountered RAC or MAC audits and a post payment review. What I described is a post payment review. Let me give you an example of a nationwide, claw-back by CMS to providers.

On January 29, 2020, CMS announced that beginning March 1, 2020, MACs will reject claims for HCPCS code L8679 submitted without an appropriate HCPCS/CPT surgical procedure code. Claims for HCPCS code L8679 billed with an appropriate HCPCS/CPT surgical code will be suspended for medical review to verify that coverage, coding, and billing rules have been met.

At least according to the announcement, it sounded like CMS instructed the MACs to stop reimbursing L8679 going forward, but I read nothing about going back in time to recoup.

In the last few months, my team has been approached by chiropractors and holistic medical providers who received correspondence from a UPIC and their MACs that they owe hundreds of thousands of dollars for L8679 going back three years prior to CMS’ 2020 announcement to cease using the code.

In this particular instance, many of the providers who had been using the L8679 code did so under the direct guidance of CMS, MACs, and other agents over the years. It becomes a fairness question. Should CMS be able to recoup for claims paid for services rendered when CMS had informed the providers it was the correct code for years?

Another factor to consider is that many of these providers are victims of an intentional scheme to sell devices with the false advice that the devices are covered by Medicare. Litigation has already been filed against the company. In a case filed December 6, 2019, in US District Court of the Eastern District of PA, Neurosurgical Care LLC sued Mark Kaiser and his current company, Doc Solutions LLC, claiming that Kaiser’s company falsely marketed the device as being covered by Medicare. Stivax is a “non-narcotic and minimally invasive form of neurostimulation” which is represented as “one of the only FDA approved microchip controlled microstimulation devices for treating back, joint and arthritic pain.”

Recall that, over the years, CMS paid for these approved procedures with no problem. This situation begins to leave the realm of the courts of law and into the court of equity. It becomes an equitable issue. Is there fairness in Medicare?

There may not be fairness, but there is an administrative appeal process for health care providers! Use it! Request redeterminations!

Big Change in Medicaid Audits? Or Just More Auditing Companies?

According to “Report on Medicare Compliance,” dated August 5, 2013, (Yes, I actually subscribe to this Report), the Center for Medicare and Medicaid Services (CMS) has BIG changes on the horizon for Medicare AND Medicaid audits (nationwide).

According to “New CMS Program-Integrity Plan Is In the Works; No More ZPICs, MICs,” CMS is developing a “unified program integrity strategy” that will consolidate some Medicaid and Medicare audits.

What does that mean to NC health care providers? Less audits? More audits?

Apparently, CMS intends to contract with 5 – 15 new “unified program integrity contractors (UPIC)…yes, another new acronym… The article also states that UPICs would replace zone program integrity contractors (ZPICs) and Medicaid integrity contractors and program safeguard contractors.

However, according to the article, the Recovery Audit Contractors (RACs) will remain in place. 

Companies wanting to act as UPICs were to respond to CMS by August 13th.  So these UPICs may be effective in the near future.

Are UPICS intended to streamline the audit process (by consolidating Medicare and Medicaid audits)?

Or will UPICS just add an additional 5 – 15 auditing companies, increasing the number of audits on providers, and weeding out providers willing to accept Medicaid to decrease Medicaid spending?