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Medicare Appeal Backlog Dissolves and SMRC Audits Escalate

I have good news and bad news today. I have chosen to begin with the good news. The ALJ backlog will soon be no more. Yes, the 4-6 years waiting period between the second and third level will, by sometime in 2021, be back to 90 days, with is the statutory requirement. What precipitated this drastic improvement? Money. This past year, CMS’ budget increased exponentially, mostly due to the Medicare appeals backlog. OMHA was given enough dough to hire 70 additional ALJs and to open six additional locations. That brings the number of ALJs ruling over provider Medicare appeals to over 100. OMHA now has the capability to hear and render decisions for approximately 300,000 appeals per year. This number is drastically higher than the number of Medicare appeals being filed. The backlog will soon be nonexistent. This is fantastic for all providers because, while CMS will continue to recoup the alleged overpayment after the 2nd level, the providers will be able to have its case adjudicated by an ALJ much speedier.

Now the bad news. Remember when the RAC program was first implemented and the RACs were zealously auditing, which is the reason that the backlog exists in the first place. RACs were given free rein to audit whichever types of service providers they chose to target. Once the backlog was out of hand, CMS restricted the RACs. They only allowed a 3 year lookback period when other auditors can go back 6 years, like the SMRC audits. CMS also mandated that the RACs slow down their number of audits and put other restrictions on RACs. Now that OMHA has the capacity to adjudicate 300,000 Medicare appeals per year, expect that those reins that have been holding the RACs back will by 2021 or 2022 be fully loosened for a full gallop.

Switching gears: Two of the lesser known audits that are exclusive to the CMS are the Supplemental Medical Review Contractor (“SMRC”) and the Targeted Probe and Educate (“TPE”) audits. Exclusivity to CMS just means that Medicare claims are reviewed, not Medicaid.

The SMRCs, in particular, create confusion. We have seen DME SMRC audits on ventilator claims, which are extremely document intensive. You can imagine the high amounts of money at issue because, for ventilators, many people require them for long periods of time. Sometimes there can 3000 claim lines for a ventilator claim. These SMRC audits are not extrapolated, but the amount in controversy is still high. SMRCs normally request the documents for 20-40 claims. It is a one-time review. It’s a post payment review audit. It doesn’t sound that bad until you receive the request for documents of 20-40 claims, all of which contain 3000 claim lines and you have 45 days to comply.

Lastly, in a rare act, CMS has inquired as whether provider prefer TPE audits or continue with post payment review audits for the remainder of the pandemic. If you have a strong opinion one way or the other, be sure to contact CMS.

Congressman McDermott Calls on Sec. Sebelius to Fix the Medicare Appeal Purgatory

Throughout my career I have seen more people confuse Medicare and Medicaid than any other two items in my line of work.  If I am about to give a presentation on Medicaid, without question, someone will comment, “Oh, that’s important!  We will all be on Medicaid someday.”  Hmmmm? Really? (I hope not).

It’s confusing. I get it.  They sound the same and both are heavily regulated with esoteric rules and regulations.

For the record, MediCARE covers those who qualify for Medicare and are 65 years of age or older.  MediCAID serves low-income parents, children, seniors, and people with disabilities. 

By providers, I am asked frequently, “What is the difference between a Medicaid audit appeal and a Medicare audit appeal?”

The easy “Audit 101” answer  is that Medicaid audit appeals are quicker (although in the legal world, nothing is truly fast) than Medicare audits and that the Medicaid administrative appeal process is easier (or has fewer steps) than the Medicare appeal process.

In Medicaid you have an informal appeal, an appeal to the Office of Administrative Hearings (OAH), and, if you are so inclined, judicial review to the Superior Courts.  Obviously you can appeal the judicial review, but most appeals stop at the OAH level.

So, with Medicaid audit appeals, you have 2 levels…maybe 3.

In Medicare audits appeals, there are 5 levels.  You have more of a Dante-ish order of events.

In the “Divine Comedy,” Dante writes of three levels of afterlife: (1) Inferno (2) Purgatorio; and (3) Paradiso.

If Dante stopped at those 3 levels, the “Divine Comedy” would be more similar to Medicaid audit appeals, not Medicare audit appeals.  But Dante does not stop at 3 levels.

Purgatory, which is the place that the human soul must purge its sins and climb up to be worthy of Heaven, is divided into three sections: (1) Antepurgatory; (2) Purgatory proper; and (3) the Earthly Paradise. (I am giving the Cliff’s Notes version for the purpose of this blog.  Obviously, there were other mountains symbolizing the 7 deadly sins and other layers, but I will leave that for English class).

In recent times, Purgatory has come to mean a state of suffering or torment that is meant to be temporary.

Regardless, the “Divine Comedy” and its multi-layers to achieve Paradiso is more akin to the Medicare appeal audit process.

Here are the levels in a Medicare audit appeal process:

1. Redetermination

2. Reconsideration

(Purgatory)

3. Hearing before an Administrative Law Judge (ALJ)

4. Review by the Appeals Council

5. Judicial Review

Nowadays many providers undergoing Medicare audits are getting stuck waiting for #3 to occur.  Purgatory.

So long is the hold up before step #3 that Congressman Jim McDermott, 7th District, Washington, wrote a letter to Secretary Kathleen Sebelius expressing concerns.

In a letter dated March 18, 2014, Congressman McDermott writes that he is concerned with the backlog of appeals pending in the Office of Medicare Hearings and Appeals (OMHA).

According to Congressman McDermott, 357,000 Medicare appeals are pending at OMHA.  If OMHA decided to set a one-year deadline to hear the pending actions and not counting new actions that would be filed, OMHA would have to preside over 1,027.4 hearings a day, including weekends and holidays.

For as long as I know, OMHA has expedited Medicare recipients appeals.  However, while Congressman McDermott commends OMHA for the expeditions, he states that the expeditions are not fast enough, even for Medicare recipients.

Congressman McDermott makes several suggestions as to how to decrease the current workload on OMHA.

First, he asks that the “two midnights policy” not be implemented.  Instead, he suggests to revamp the recovery audit contractor (RAC) program.  Congressman McDermott states that too many issues are still not resolved for the Policy to be implemented and that the implementation will only add to OMHA’s workload.

Second, Congressman McDermott suggests more accountability for the RACs.  He states that there is no associated penalty if a RAC collects money from a provider and the decision is overturned on appeal.

To this suggestion, I say, “Bravo, Congressman McDermott!”  My suggestion is that the RACs to pay the provider’s attorneys’ fees if overturned on appeal.  It seems only fair that the provider not have to pay legal fees if the provider shows that the RAC was incorrect in its assessment.

Thirdly, Congressman McDermott suggests to ensure the newly instated pause  on document requests corrects the problems.  CMS has recognized inherent problems with the RAC program and has issued a pause of document requests.  Well, Congressman McDermott says make sure you fix the problem before lifting the pause.  Logical.

Without question, the backlog at OMHA needs to be addressed.  Some Medicare providers have complained of not having their cases heard for years.  Imagine waiting to be heard in front of a judge for years….not knowing…

It is hard enough for providers to go through a Medicare audit.  Much less appeal and then…………………………………………….wait in Purgatory.