Medicare Claims Appeals: From Audit to OMHA

Transcription

1 + Medicare Claims Appeals: From Audit to OMHA Donna K. Thiel Partner King & Spalding, LLC Washington, DC American Health Lawyers Association March The Appeals Process Original Medicare Appeals Process Grievances/OrgMedFFSAppeals/index.html 1

2 + Issues Addressed Today 3 Different Procedures For Direct Challenges To Local and National Coverage Decisions Different process for Enrollment/disenrollment Claims, Not Cost Reporting Medical Necessity Is The Primary Issue Statistical Validity Of Sample Timeliness of Reopening Waiver Of Recovery/ABN + Who Denied the Claim? 4 Pre-Payment Medicare Contractors (MACs) Providers Practitioners DMACs: DMEPOS Claims Post-Payment MACs and DMACs Specialty Auditors RACs ZPICs PSCs 2

3 + Medicare Administrative Contractors 5 15 MACs and 4 DMACs for redeterminations. 2 Part A QICs (Maximus - both jurisdictions) 2 Part B QICs (First Coast Service Options and Q2 Administrators) 1 DME QIC (C2C) + Specialty Auditors 6 Zone Program Integrity Contractors Recovery Audit Contractors ZPICs/RAC are authorized to conduct audits, interview beneficiaries and providers, initiate administrative sanctions (including suspending payments, determining overpayments, and referring providers for exclusion from Medicare), and refer providers and beneficiaries to law enforcement. The ZPICs/RAC also are expected to use "innovative data analysis methodologies for the early detection and prevention of abusive use of services, as well as possible fraud, waste and abuse schemes." 3

4 + ZPICs 7 ZPICs were created to perform program integrity for Medicare Parts A, B, C (Medicare Advantage) D (Prescription Drugs), Durable Medical Equipment (DME), Home Health and Hospice. When Medicare began the process of moving Part A and Part B intermediaries and carriers into the Medicare Contractor system, CMS also moved the program integrity component of their duties into program safeguard contractors or PSCs. The ZPICs replaced the existing Program Safeguard Contractors ( PSCs ) The ZPICs are paid by CMS, but unlike the RACs, reimbursement to a ZPIC is not contingent upon any overpayment amounts recovered by the ZPIC. + Specialty Auditors: Zone Program 8 Integrity Contractors ZPICs perform program integrity for Medicare Parts A, B, C (Medicare Advantage) D (Prescription Drugs). The ZPICs replaced the existing Program Safeguard Contractors ( PSCs ) Reimbursement to a ZPIC is not contingent upon any overpayment amounts recovered by the ZPIC. ZPICs calculate overpayments based on Statistical Sampling Seehttp:// de_icn pdf Zone 7 is devoted almost solely to Florida, considered a "hot zone" because of a high incidence of Medicare fraud. Other "hot zones" include California and Texas (Houston and Dallas). Zone 2 covers a vast territory of largely western and southwestern states where there has not historically been a high prevalence of Medicare billing issues 4

5 + Overpayment Based on Sampling 9 Universe: All claims in two year period Frame: Eliminates cases outside the audit design Sample Design: How large a sample based on precision/error rate Sample: Random Selection of Claims By Beneficiary or By Claim These claims will be the subject of the appeal Sample: 31 claims, Claims Denied: 31 Error Rate: 100 Actual Overpayment: $44, Extrapolated Overpayment $ 5,751,331 + Recovery Audit Contractors 10 (RACs) 4 RACs- Same jurisdiction as DME MACs Region A: Diversified Collection Services Region B: CGI Region C: Connolly, Inc. Region D: HealthDataInsights, Inc. 2 5

6 + Bonus on RAC results 11 RACs are paid on a contingency fee based on the amount of over and underpayments corrected Contingency Fees Region A % Region B % Region C - 9% Region D % Contingency fee returned if denials are overturned on appeal RACs are not authorized to investigate fraud but are required to refer possible fraud to CMS Suspension of Payments + The Appeal Process: Part A and Part B 12 6

7 + Who Decides? 13 + Overpayment? Consider Your Repayment Options 14 If The Claim Is Post-Payment, Denial Will Be Followed By A Demand For Payment Whether or not you appeal, an Appellant Can: Pay The Amount Due Immediately Request To Pay Over Time Under An Extended Repayment Plan Interest Accrues On The Amount Due Pay through offset/recoupment If You Do Not Pay, Medicare Will Recoup The Overpayment, Plus Interest, From Current Receivables Unless You Appeal Timely 7

8 + Staying Recoupment Pending Appeal Medicare will not recoup an overpayment if you appeal super timely. Section 935(f)(2) of the Medicare Modernization Act 42 USC 1395ddd(f)(2) Redetermination: Appeal within 30 days of the notice of overpayment to stay recoupment. Ordinary Appeal deadline for Redeterminations is 120 days If you lose, you can pay, request an ERP or appeal to the second level Reconsideration: Appeal within 60 days of Redetermination to stay the recoupment Appeal deadline for Reconsideration is 180 days + Getting Started 16 Medicare Claims Processing Manual Chapter 29 - Appeals of Claims Decisions Guidance/Guidance/Manuals/downloads/clm104c29.pdf Once an initial claim determination is made by a contractor, beneficiaries, providers, participating physicians and suppliers have the right to appeal the determination All appeal requests must be made in writing 8

9 + Requesting an Appeal 17 A written request must include (at Every Level): Beneficiary name Medicare Health Insurance Claim (HIC) number Specific service and/or item(s) for which a redetermination is being requested Specific date(s) of service Name and signature of the party or the representative of the party The appellant should attach any supporting documentation to the request for Appeal. See discussion below about establishing the record A request may be filed on Form CMS CMS-Forms/CMS-Forms- List.html + Getting Started: Parties 18 Who may appeal? Beneficiaries, Providers, Suppliers Physicians and other suppliers who do not take assignment on claims have limited appeal rights Non-Party Must Submit Authorization Of Representative 42 CFR CMS Form 1696, Items/CMS html Authorization Of Representative is Different than Assignment Beneficiaries may transfer their appeal rights to non-participating physicians or suppliers who provide the items or services and do not otherwise have appeal rights Form CMS must be completed and signed by the beneficiary and the nonparticipating physician or supplier to transfer the beneficiary s appeal rights. 9

10 + Level One: Redetermination + Level One: Redetermination 20 Written Request To MAC/DMAC Must Be Filed In 120 Days From Initial Determination (Denial) Must Be Decided In 60 Days Recoupment Can Be Stayed If Appeal Is Filed By Day 30 10

11 + Overpayment Based on a Sample 21 Keep all claims in the sample together Note on your pleadings that the cases are part of a statistical sample Request Documentation on the Sampling Methodology Hire a Statistician to Evaluate the Sampling Ensure none of the claims in the Sample have been appealed before + Level Two: Reconsideration 11

12 + Level Two: Reconsideration 23 A party to the redetermination may request a reconsideration if dissatisfied with the redetermination. Written Request to QIC Written reconsideration request must be filed with the QIC within 180 days of receipt of the redetermination. + Reconsideration 24 No monetary threshold A request for a reconsideration may be made on Form CMS www. cms.gov/medicare/cms-forms/cms-forms/cms- Forms- List.html. If the form is not used, the written request must contain all information noted above PLUS: A copy of the RA or Redetermination Any additional documentation to address the Decision below Address denial in Redetermination but do not limit your argument to that decision Documentation that is submitted after the reconsideration request has been filed may result in an extension of the timeframe a QIC has to complete its decision. 12

13 + Qualified Independent Contractor The QIC Is A Panel Of Physicians Or Other Appropriate Health Care Professionals Must Have Sufficient Medical Legal And Other Expertise Including Knowledge Of Medicare Program Only MDs Can Review MD Claims Reconsiderations are conducted on-the-record If the QIC cannot complete its decision in the applicable timeframe, it will inform the appellants of their right to escalate the case to an ALJ Only evidence submitted before the issuance of the QIC decision can be considered in subsequent appeals, unless good cause is shown for any delay. + Level Three: Office of Medicare Hearings and Appeals 13

14 + Request for ALJ Hearing 27 If at least $140 remains in controversy following the QIC s decision, a party to the reconsideration may request an ALJ hearing Appeal must be filed in writing within 60 days of receipt of the Reconsideration decision. Reconsideration decision letter contains procedures for requesting an ALJ hearing. Form CMS may be used to file a request Appellants must also send a copy of the ALJ hearing request to all other parties to the QIC reconsideration. (Beneficiary?) + Request for an ALJ hearing CFR (a) The request for an ALJ hearing must be made in writing. The request must include all of the following (1) The name, address, and Medicare health insurance claim number of the beneficiary whose claim is being appealed. (2) The name and address of the appellant, when the appellant is not the beneficiary. (3) The name and address of the designated representatives if any. (4) The document control number assigned to the appeal by the QIC, if any. (5) The dates of service. (6) The reasons the appellant disagrees with the QIC's reconsideration or other determination being appealed. (7) A statement of any additional evidence to be submitted and the date it will be submitted. 14

15 + Requesting an ALJ Hearing 29 Jurisdictional Elements QIC reconsideration/dismissal/escalation Amount in Controversy ($140) (2013) Timely Request (60 days) Party standing Requests for Hearing Send to Centralized Docketing Copying Parties Part A/B Appeals 42 C.F.R. 405, sub I Part C Appeals 42 C.F.R. 422, sub M Part D Appeals 42 C.F.R. 423, sub U + OMHA Locations 30 Arlington, Virginia (Mid-Atlantic) Cleveland, Ohio (Midwestern) Irvine, California (Western) Miami, Florida (Southern) HHS OMHA Centralized Docketing 200 Public Square, Suite 1260 Cleveland, OH

16 + ALJ Authority 31 ALJ Decisional Independence New look at the claim (de novo review) ALJ is Finder of Fact Must apply Statutes, Regulations, CMS Rulings, NCDs Substantial Deference LCDs, CMS Manuals Application of LCD, Manual Instructions Whether Sampling Met CMS Requirements Liability Issues 1879 Limitation on Liability 1870 Overpayment Waiver + Hearing Request Issues 32 Aggregating Claims Used to meet the amount in controversy requirement Confirm Consolidated Hearings Cases must be before the same ALJ Evidence Document your submissions at lower levels Good cause must established for submitting evidence for the first time at the ALJ level (42 CFR ) 16

17 + Conduct of Hearings 33 Pre-Hearing Conferences ALJ Assignment Random Rotation National Jurisdiction 42 CFR Video-Teleconference (VTC) Teleconference In-Person CMS or Contractor Involvement + Decisions Time Frame 34 Possible Delays All parties not copied on the request for hearing ( ) Untimely request for hearing ( ) Request for hearing sent to the incorrect entity ( ) Discovery requested ( , ) Written evidence is submitted late ( ) Hearing is rescheduled at the Appellant s request ( ) Appellant has material missing evidence ( ) Appellant waives timeframe ( ) Party request for opportunity to comment on the record ( ) Consolidated hearing granted at request of appellant ( ) 17

18 + Level Four: Appeals Council + Appeals Council 36 ALJ Decision is binding on the parties, unless reopened or Appeals Council decides to review CMS can refer cases for Own Motion Review If a party to the ALJ hearing is dissatisfied with the ALJ s decision, the party may request a review by the Appeals Council Must be filed within 60 days of ALJ Decision No Financial Threshold Must specify the issues and findings that are being contested 18

19 + Level Five: Federal Court + Federal Court 38 Party Any party to the Medicare Appeals Council decision Appellant who requests escalation to Federal district court if the Appeals Council does not complete its review of an administrative law judge's (ALJ's) decision within the applicable adjudication period, Amount remaining in controversy must satisfy the requirements set forth in 42 CFR $1400 for 2013 Timely 60 days to request review Standard of review: substantial evidence based on the record 19

20 + Practice Tips + Making Your Case 40 Review Starts with the Premise that something less (or less expensive) could have been done Rapid Response for Admission or Initiation Patient failed to improve on prior therapy or in a different setting? Patient sick enough (fragile enough) to require admission, adjuvant therapy, special equipment? The risks of not engaging the services/items Treatment has been considered, or tried or ruled out 20

21 + Making the Prima Facie Case 41 Avoid Technical Denials Audit for any Specialized Documentation You Must have To Establish Coverage Prescription/Orders Recertification CMN Signatures Audit for Facts You Must Prove To Establish Coverage Prerequisites Satisfied Other Aspects of Care Management + Challenge of Establishing Medical 42 Necessity Establish the Link between Payor s Coverage Criteria and the Clinical Case Document Severity Illness or Conditions or Comorbidities Document Intensity Of therapy, Of testing, Of treatment Document Plan of Care Consistent with Coverage Policy Explain Deviations from Policy 21

22 + Timing is Everything 43 Document Patients condition at the time the order was placed Chronic Illness must be addressed (diabetes, COPD, CHF Immobility do not go away but address implications on a continuing basis (every day!) Entire record should reflect severity/risk that justifies the treatment continuously Document Progress (relative to last note) or lack of it + Defending Your Claims 44 Do Not Assume That The Adjudicator Will Be Familiar With The Relevant Benefit Or Its Coverage Criteria Set Out The Relevant Coverage Policy Medicare Statute, Regulations, Manuals, LCDs, Or NCDs Payor Contracts Describe your Products Mechanisms of Action Documentation Methods 22

23 + Avoid These Pitfalls 45 Delay Don t Procrastinate In Starting The Appeal Process Do Not Put Off Collecting Medical Records For The Next Level Of Appeal Submitting Evidence As If It Speaks For Itself Tell The Story Of Your Services Draft A Cover Page To Be Appended To Each Set of Documents Telling The Patient s Story, Referring To Specific Notations In The Record Summarize Critical Elements In The Patient s Case and Cite to the Record 46 23