SNFs Are on the Medicare Chopping Block! Caveat!
Every skilled nursing facility in the US will be subject to a five-claim audit starting THIS WEEK as regulators try to better assess and root out improper payments. Blah. Blah. Blah. The former is the first sentence in an article that is giving warning to skilled nursing facilities (“SNF”). But, we all know that PROPER PAYMENTS get caught in the wide net cast for improper payments. Innocent people get accused of crimes. Health care providers get accused of Medicare and Medicaid fraud or, at least, abhorrent billing.
The Centers for Medicare & Medicaid Services (“CMS”) announced the nationwide audits, which will be conducted by Medicare Administrative Contractors (“MACs”) on a rolling basis, with the MAC in every region required to pull five Medicare Part A claims from every facility they cover and review them for potential errors.
The results will lead to alleged overpayments, credible allegations of fraud, submittals to the OIG, and False Claims Act (“FCA”) penalties. The effort follows an HHS report that found skilled nursing facilities had the highest rate of improper payments, with nearly a quarter of those tied to insufficient documentation.
Most of the rest of my blog (except for what is important) is cut and pasted from the article (since I am not a journalist and cannot procure quotes):
“We haven’t seen anything like this in the recent past, at least not in the last 10 years,” said Stacy Baker, OTR/L, RAC-CT, director of audit services for Proactive LTC Consulting. “But it’s no surprise to see this sector-wide probe and educate. Looking back on Medicare FFS improper payment data, we’ve never seen SNF improper payment rates this high, and nearly doubling since the 2021 report.”
That rate stood at 15.1% in 2022, almost double the 7.79% rate in 2021. A CMS report blamed missing case-mix group component documentation. Baker billed the new initiative as an attempt to improve poor billing practices that emerged with the implementation of the Patient Driven Payment Model.
But the improper payments can’t be attributed to PDPM alone, said Alicia Cantinieri BSN, vice president of MDS policy and education for Zimmet Healthcare Services.
“That’s probably not the whole reason,” she said on a webinar earlier this month.
She noted that risk areas that could move providers to the front of the audit process include past performance, such as a history of additional documentation requests (“ADR”); frequent errors in Section GG, which sets payment rates for physical therapy, occupational and nursing groups; diagnoses without medical record to support MDS inclusion; and even illegible RN signatures. I bolded “even illegible RN signatures” because I cannot tell you how many times I have seen denials by auditors because they couldn’t read someone’s signature, and, therefore, could not verify their license. Have auditors heard of a phone?
The reviews will be conducted on a prepayment basis unless the provider requests post-payment review due to a financial burden. Holy cow! See blog, blog, and blog.
“Keep in mind, there’s lots of low-hanging fruit for payment error aside from PDPM accuracy, such as but not limited to, compliant SNF Certs and Recerts and physician oversight regs,” Baker added. “These components should be included in the Triple Check process as well.”
The CMG for each HIPPS code also must be clearly supported to validate the claim.
The MACs will complete one round of probe and educate for every provider, instead of that usual potential three rounds, as per their traditional TPE program.
It is a good idea for providers to start analyzing data and conducting internal self-audits.
TIPS for an effective ADR response:
- SECURE AN ATTORNEY WHO SPECIALIZES IN THIS TYPE OF LEGAL WORK.
- Develop a process and team now. Assign responsibilities for tasks such as, but not limited to: identifying ADR requests, ensuring timely response to deadlines are met, pulling together medical records and documents required to support the HIPPS code, and reviewing the packet for completeness.
- Make copies. Never ever, ever, ever send originals.
- Organize documentation to make the contractor’s review easy, labeling critical sections such as physician orders, MDS assessments, Section GG documentation and more.
- Allow sufficient time for your lawyers and hired experts, both with clinical and MDS coding expertise, to review the claims and documentation for accuracy. If your attorney believes that your documentation has concerning issues, it is best to SELF-DISCLOSE. Self-disclosure can prevent penalties; whereas if you are caught, penalties will ensue.
Texas Judge Poo Poos the ACA Preventable Services Mandate!
In March, the U.S District Court in the Northern District of Texas vacated the requirement that ACA-compliant health plans cover certain U.S. Preventive Services Task Force (USPSTF) recommended preventive services without cost sharing.
The DOJ argued the lower-court ruling from a federal judge in Texas “has no legal justification and threatens the public health.” The Health and Human Services Department estimates the ACA covered preventive services for more than 150 million people in 2020.
I am not taking a stance on the ACA. As a lawyer, I can tell you that to obtain an injunction, you have to prove:
- Likelihood of success on the merits;
- Irreprepable harm;
- Balancing the equities;
- Public interest.
Those standards come from a Supreme Court case called Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).
I understand that the Texas case vacating that the ACA-compliant health plans cover preventive services has become highly polarizing in politics. Obviously, the Republicans are Plaintiffs in this case and fighting against Obamacare. But I do not care about the politics. My contention with this case is if the government is mandating (well, was mandating before this TX judge’s decision) preventive care to be free, how is that not forcing doctor’s to work for whatever the government deems to be fair. Will they get paid Medicare or Medicaid prices? They should be so lucky. I don’t want to go out on a limb and compare mandating doctors to provide services for Medicare and Medicaid prices, regardless whether that physician is even enrolled in Medicare or Medicaid to slavery, but if the shoe fits…
On another note, the Recovery Audit Contractors (RACs) added hospice to the list of CMS approved audit targets. The review will determine if Hospice General Inpatient Care (GIP) was reasonable and necessary to achieve pain control or acute or chronic symptom management which could not be managed in any other setting. Claims that do not meet the indications of coverage and/or medical necessity will be recoded to Routine Hospice Care 0651 and result in an overpayment.” The affected code will be REV code 0656.
On March 31, CMS issued the FY 2024 proposed rule which includes a 2.8% rate increase and the FY 2024 cap of $33,396.55. The proposed rule also includes updates on the Hospice Outcomes & Patient Evaluation (HOPE) tool, CAHPS® tool, the Hospice Special Focus Program, and a proposed addition of hospice physicians to the Medicare enrollment process. For a full analysis of the proposed rule, view NHPCO’s regulatory alert from April 4. Comments are due by May 30, 2023.
Other CMS approved audit targets for 2023 and 2024 are : Ambulance Providers, Ambulatory Surgery Center (ASC), Outpatient Hospital, Inpatient Hospital, Inpatient Hospital, Inpatient Psychiatric Facility, Inpatient, Outpatient, ASC, Physician, IP, OP, SNF, OP Clinics, ORF, CORF, OPH, OP Non-Hospital, SNF, ORF, CORF, Physician, Physician/Non-physician Practitioner (NPP), Physician/NPP, Professional Services (Physician/Non-Physician), and Radiologists/Part B providers.
To name a few.
Risk Adjustment Audits Are Here!!! Watch Out MAOs!
Risk adjustment is hugely important in Medicare Advantage (MA). Risk adjustment is intended to financially adjust taking into account the underlying severity of beneficiaries’ health conditions and appropriately compensate private insurers with vastly varying expectations for expenditures. In each year, plans receive higher payments in direct proportion to documented risk: A 5 percent increase in documented risk leads to a 5 percent increase in payment. Yet, because MAO have considerable control over the documentation, it is common for insurers to erroneously document patient risk and receive inflated payments from CMS, at least according to several CMS and OIG Reports.
Enter Risk Adjustment Data Validation (RADV) audits.
These are the main corrective action for overpayments made to Medicare Advantage organizations (MAO) when there is a lack of documentation in the medical record to support the diagnoses reported for risk adjustment
CMS has conducted contract-level RADV audits by selecting about 30 contracts for audit annually (roughly 5 percent of MA contracts). CMS then selects samples from each contract of up to 201 beneficiaries divided into three equal strata (low, average, and high risk). Auditors then comb through each beneficiary’s medical records to determine whether diagnoses that the MA plan submitted are supported by documentation in the medical record. From this process, auditors can calculate an error rate for the sample, which can then be extrapolated to the rest of the contract. For instance, if auditors determine that an insurer overcoded a sample’s risk by 5 percent, auditors could infer that plans under that contract were overpaid by 5 percent. Historically, however, CMS has only sought to collect the overpayments identified for the sample of audited beneficiaries. Not any more!
A CMS Final Rule, published February 1, 2023, addresses extrapolation, CMS’ decision to not apply a fee-for-service (FFS Adjuster) in RADV audits, and the payment years in which these policies will apply. Once it goes into effect on April 3, 2023, CMS estimates it will result in the recoupment of $4.7 billion in overpayments from MA insurers over the next decade.
As for extrapolations, CMS will not extrapolate RADV audit findings for PY 2011-2017 and will begin collection of extrapolated overpayment findings for any CMS and OIG audits conducted in PY 2018 and any subsequent payment year.
The improper payment measurements conducted each year by CMS that are included in the HHS Agency Financial Report, as well as audits conducted by the HHS-OIG, have demonstrated that the MA program is at high risk of improper payments. In fiscal year (FY) 2021 (based on calendar year 2019 payments), OIG calculated that CMS made over $15 billion in Part C overpayments, a figure representing nearly 7 percent of total Part C payments.
The HHS-OIG has also released several reports over the past few years that demonstrate a high risk of improper payments in the MA program.
Looking forward – Expect more MAO audits.
P.S. I will be presenting a webinar on Monday, March 20, 2023, via the Assent platform regarding:
FTC ELIMINATING NON-COMPETE AGREEMENTS HOW THAT WILL AFFECT HOSPITALS AND LTC
DATE : MARCH 20, 2023 | EST : 01:00 PM | PST : 10:00 AM | DURATION : 60 MINUTES
Feel free to sign up and listen!!
CMS Published 2023 Medicare/caid Health Care Providers’ Audit Process
THE CENTER FOR MEDICARE AND MEDICAID SERVICES (“CMS”) 2023 Program Audit Process Overview came out recently. The report is published by the Division of Audit Operations. CMS will send engagement letters to initiate routine audits beginning February 2023 through July 2023. Engagement letters for ad hoc audits may be sent at any time throughout the year. The program areas for the 2023 audits include:
- CDAG: Part D Coverage Determinations, Appeals, and Grievances
- CPE: Compliance Program Effectiveness
- FA: Part D Formulary and Benefit Administration
- MMP-SARAG: Medicare-Medicaid Plan Service Authorization Requests, Appeals, and Grievances
- MMPCC: Medicare-Medicaid Plan Care Coordination
- ODAG: Part C Organization Determinations, Appeals, and Grievances
- SNPCC: Special Needs Plans Care Coordination
The Program Audit Process document is only 13 pages. Yet, it is supposed to set forth the rules that the auditors must abide by in 2023. My question is – what if they don’t. What if the auditors fail to follow proper procedure.
For example, similarly to last year, an audit consists of 4 phases.
- Audit engagement and universe submission
- Audit field work
- Audit reporting
- Audit validation and close out
I would like to add another phase. Phase 5 is appeal.
According to the Report, and this is a quote: “the Audit Engagement and Universe Submission (which is the 1st stage) is a six-week period prior to the field work portion of the audit. During this phase, a Sponsoring organization is notified that it has been selected for a program audit and is required to submit the requested data, which is outlined in the respective Program Audit Protocol and Data Request document.” My question is: The sponsoring organization? CMS is referring to the provider who getting audited as a sponsoring organization. And why does CMS call the provider who is getting audited sponsoring? Is it because after the audit the sponsoring organization will be paying in recoupments?
It is interesting that the first phase “Audit Engagement and Universe Submission,” lasts 6 weeks. At this point, I want to know, does the provider know that the facility has been targeted for an audit? As an attorney, I get to see the process in the aftermath. Folks call me in distress because they got the results of an audit and disagree. I have never had the opportunity to be involved from the get go. So, if any of y’all receive a notice of an audit, please call me. I won’t charge you. I just would love the experience of walking through an audit from the get go. I think it would make me better at my job.
In other news, as you know, CMS may issue civil money penalties to providers for alleged noncompliance. Other penalties exist as well, which may or may not be worse that civil penalties. On January 23, 2023, CMS published a correction that Total Longterm Care, Inc. d/b/a InnovAge Colorado PACE (InnovAge CO) corrected its violations. In 2021, CMS had suspended its ability to re-enroll. Another facility was imposed with pre-payment review, which means that the facility must submit claims to an auditor prior to receiving reimbursements. Pre-payment review is probably the worse penalty in existence. A client of mine was told yesterday that pre-payment review is imminent. The only recourse for pre-payment review is a federal or State injunction Staying the suspension of reimbursements. You cannot appeal being placed on pre-payment review. But you do have a chance to Stay the suspension. The suspension makes no sense to me. It’s as if the government is saying that you are guilty before an ability to prove innocence.
2023 Changes to the Physician Fee Schedule … Starting Now!
Happy 2023 to all my bloggies out there!! Over the New Year’s celebration, thousands gathered in a wet NYC to watch the ball drop. There was a shooting in Mobile, AL, killing one person and injuring 9. About 40 people died in Buffalo over the holidays due to severe cold weather. And a man named Jay Withey rescued 24 people in Buffalo during the blizzard. My friend got COVID and gave it to her mom. I took my 98-year-old grandma out for sushi and played pickleball with my mom and daughter.
Why the word vomit?
Well, it’s a New Year and a new start. I am choosing to have a positive attitude for 2023. Yes, you get audited. Yes, the government blows. Sometimes you do not get rainbows and applesauce every day. But the hard times give you strength. It’s the challenging times that teach you to appreciate the good. I have decided to think about life as school. You may not want to go, but it’s required. Attendance is required.
On the syllabus for today, should you choose to participate, is the 2023 Physicians Fee Schedule (“PFS”). On November 01, 2022, the Centers for Medicare & Medicaid Services (“CMS”) issued a final rule that includes updates and policy changes for Medicare payments under the PFS, and other Medicare Part B issues, effective on or after January 1, 2023. Well, guess what, folks? It is January 2, 2023.
For most services furnished in a physician’s office, Medicare makes payment to physicians and other professionals at a single rate based on the full range of resources involved in furnishing the service. In contrast, PFS rates paid to physicians and other billing practitioners in facility settings, such as a hospital outpatient department (“HOPD”) or an ambulatory surgical center (“ASC”), reflect only the portion of the resources typically incurred by the practitioner in the course of furnishing the service.
There was a 3% supplemental increase to PFS payments in 2022. That increase expires in 2023. The final 2023 PFS conversion factor is $33.06, a decrease of $1.55 to 2022 PFS conversion factor of $34.61.
What is a conversion factor (“CF”)? It is a convoluted equation that sets Medicare rates that differs depending on whether the health care service is rendered within a facility or out. CF is set by statute.
Evaluation and Management (“E/M”) Visits
For 2023, there are 25 codes that are going away. Here are the codes that are being deleted.
- Hospital observation services codes 99217—99220, 99224–99226
- Consultation codes 99241, 99251
- Nursing facility service 99318
- Domiciliary, rest home (eg, boarding home), or custodial care services, 99324—99328, 99334-99337, 99339, 99340
- Home or resident services code 99343
- Prolonged services codes 99354—99357
There is also a new Section entitled “initial and subsequent services,” which applies to hospital inpatient, observation care and nursing facility codes. It applies to both new and established patient visits. The AMA says,
“For the purpose of distinguishing between initial or subsequent visits, professional services are those face-to-face services rendered by physicians and other qualified health care professionals who may report evaluation and management services. An initial service is when the patient has not received any professional services from the physician or other qualified health care professional or another physician or other qualified health care professional of the exact same specialty and subspecialty who belongs to the same group practice, during the inpatient, observation, or nursing facility admission and stay.”
Admission and Discharge on the Same Day
Lastly, at least for this blog, codes 99234-99236, which are used for hospital inpatient or observation care and include the admission and discharge on the same day. The patient must be in the facility for greater than 8 hours. See the below table for reference:
These are just a few of the PFS 2023 changes. Stay tuned for new Medicare and Medicaid news on this blog by me, Knicole Emanuel.
CMS: Broaden the Definition of “Medically Necessary” Germane to Dental Services!
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.
Nursing Homes Face Higher Scrutiny and Increased Penalties
Some nursing homes are facing tougher penalties, including the loss of federal funding. In an effort to increase quality of care in nursing homes, the Biden administration implemented revisions to the Special Focus Facility (“SFF”) program, which targets the “worst” nursing homes in each State. Nursing homes are selected for the program by the “single State agency” using a point system based on the number and severity of deficiencies cited during their past 3 inspections.
CMS released a revised SFF Program policy memo QS0-23-01-NH and these revisions are meant to increase: (A) the requirements for “graduation” of the SFF program; and (B) the enforcement for facilities that do not demonstrate improvement. A high-level overview of key changes made in the revised memo are as follows:
- Staffing levels is a consideration for SFF selection: CMS has directed states to consider a facility’s staffing level when selecting facilities for the SFF program. CMS recommends if a State is considering two candidates with a similar compliance history, it should select the facility with lower staffing ratios/rating as the SFF.
- Criteria for Graduation of the Program Escalated: CMS has added a threshold that prevents a facility from exiting based on the total number of deficiencies cited. To graduate from the program, facilities must complete two consecutive standard health surveys, with no intervening complaint, LSC, or EP surveys with 13 or more total deficiencies, or any deficiencies cited at scope and severity of “F” or higher.
- Involuntary Termination Enforced: SFFs with deficiencies cited at immediate Jeopardy (“IJ”) on any two surveys (standard health, complaint, LSC, or EP) while in the SFF program, will now be considered for discretionary termination.
- Enforcement Actions Increased: CMS will impose immediate sanctions on an SFF that fails to achieve and maintain significant improvement in correcting deficiencies on the first and each subsequent standard health, complaint and LSC/EP survey after a facility becomes an SFF. Enforcement sanctions will be of increasing severity for SFFs demonstrating continued noncompliance and failure to demonstrate good faith efforts to improve performance.
- Sustainable Improvements Incentivized: CMS will closely monitor graduates from the SFF program for a period of three years to ensure improvements are sustained. For SFFs that graduate but continue to demonstrate poor compliance identified on any survey (e.g., actual harm, substandard quality of care, or IJ deficiencies), CMS may use its authority to impose enhanced enforcement options, up to, and including discretionary termination from the Medicare and/or Medicaid programs.
It is imperative to note that your past alleged violations will work against you. This means that if you are cited with a deficiency, it is of the utmost importance, if you disagree with the assessment, to appeal the alleged deficiency. If you merely pay the penalty and roll over like an old dog, your lack of appealing can aid toward your demise. You are basically being held to a giant, bell curve against the other nursing homes in your State.
Once in the SFF program, nursing homes are inspected at least every six months rather than annually. State inspectors apply progressive enforcement—penalties, fines, withholding of payments—until the facilities significantly improve or are terminated from Medicaid and/or Medicare.
Nationally, 88 nursing homes participate in the SFF program, about 0.5% of all nursing homes. It is mandatory if chosen.
The facilities with the most points in a state then become candidates for the SFF program. The number of nursing homes on the candidate list is based on five candidates for each SFF slot, with a minimum candidate pool of five nursing homes and a maximum of 30 per State. State Agencies (“SAs”) use this list to select nursing homes to fill the SFF slot(s) in their State. Additionally, since a facility’s staffing (staffing levels and turnover) is very important to residents’ care, CMS recommends that SAs consider a facility’s staffing information when selecting SFFs from the SFF candidate list. See the list of current candidates in Table D, current as of December 7, 2022. For example, NC has 10 facilities on the proposed list for participation in the SFF program. Each State is allotted a number of SFFs the State may allot. See below.
Once a State selects a facility as an SFF, the SA, on CMS’s behalf, conducts a full, onsite inspection of all Medicare health and safety requirements every six months, and recommends progressive enforcement (e.g., civil money penalty, denial of Medicare payment, etc.) until the nursing home either: (1) graduates from the SFF program; or (2) is terminated from the Medicare and/or Medicaid program(s). While in the SFF program, CMS expects facilities to take meaningful actions to address the underlying and systemic issues leading to poor quality.
Once an SFF graduates or is terminated, each SA then selects a new SFF from a monthly list of candidates. CMS also informs candidate nursing homes of their inclusion on the SFF candidate list in the monthly preview of the Five-Star Quality Rating System. The facility will graduate from the SFF program once it has had two consecutive standard health surveys with 12 or fewer deficiencies cited at S/S of “E” or less on each survey (these surveys must have occurred after the facility has been selected as an SFF). To avoid situations where a facility remains an SFF for a prolonged period of time, CMS is establishing criteria that could result in the facility’s termination from the Medicare and/or Medicaid programs. SFFs with deficiencies cited at Immediate Jeopardy on any two surveys while in the SFF program, will be considered for discretionary termination.
While the initial SFF designation is not appealable, the facility does have some appeal rights. Federal regulations allow for dispute resolution and to appeal a finding of noncompliance determined under an SFF survey that results in an enforcement remedy.
If you find yourself on the SFF list, you must hire a lawyer with expertise. Your lawyer should be able to help you “graduate” from the SFF list without termination or closure. Your lawyer can help negotiate Systems Improvement Agreements (“SIAs”) with SAs and CMS to provide additional time for nursing homes to improve their internal systems and the quality of care they provide.
The Ugly Truth about Medicare Provider Appeals
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.
My Halloween blog from Yesterday: Medicare Dollars Vanish!
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!