Blog, Chirosecure Live Event October 3, 2022

Medicare Post Payment Risk and Administrative Appeals

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Hey everyone Michael Miscoe with Miscoe Health Law for this week’s installment of Chiro Secure’s Growth Without Risk. And what I chose to speak about this week is the Medicare post-payment scenario risk and the process for administrative appeals. If you’re billing Medicare, there’s always a risk that you’re gonna be subject to an audit.

And by a Medicare, what are called up picks now they’ve gone through a variety of names. They were b they were mix, they were Z picks and now they’re up picks. And what UP pick stands for is Unified program integrity contractor. There are a number of them scattered around the country and they all service a number of states and their job is to.

Medicare payments. They get data from the Medicare administrative contractors or the max. Those are the people you actually send your claims to and actually pay them. So those are your Palm Meadows, NOAs, wps, Meridian, Palm Meadow, and so forth. First Coast service options if you’re in Florida.

But Those folks pay your claims and then they take their claims payment data and download it to the UPS and the UPS look at it. And they do things like velocity studies and all kinds of things looking for indicators of payments that were potentially Inaccurate. I was gonna use the word inappropriate, but inappropriate means suggest that you did something nefarious.

And that’s not what this is about. These are not fraud audits, at least in their inception. They can turn into that and you pick sometimes do referrals to the Department of Justice or the hhs, O I G. But in the normal course of business they identify something in the data that’s arant. They look for outliers and if they find you then usually they will start with what’s called a pro audit and they’ll request some records.

Now when we talk about record requests, one thing I wanna make clear is that when you get a record request, and I can do a whole different presentation on this, and I have in the past and may do so again, but I want you to be cautious. I get calls. All the time where somebody gets a record request and it is associated with Medicare patients, but they are not careful to look and distinguish what kind of Medicare they have.

You will get Medicare record request for patients who are part of a Medicare Advantage program where some contractors is requesting records. And if you read the letter carefully, They’re doing risk validation or HCC risk adjustment validation, those kind of words will be in the request. That is not a post payment audit request of you.

If you get one of those, what they’re doing is collecting data to validate whether the HCC risk adjustment score, that the Medicare Part C plan, which would be somebody like a Blue Cross or a United or an anthem. Aetna or something like that. They submit this risk adjustment score for these patients to cms and that determines how much CMS is gonna contribute to that patient’s premium.

So what they’re looking for is clinical data to support the HCC risk adjustment score and validate that, that they’re reporting correctly to cms. That has nothing to do with you. So you can in fact report those. Or give up those records. The kind of record requests I’m talking about are your Medicare part B patients, B as in boy.

Those record requests are something that you need to pay attention to. Usually the minimum number is like 20. It can be smaller, but and I, it gets a little more exciting when they request more because they’re doing what they believe to be. A statistically valid random sampling of your claims data.

They’ll take the error that they find in that audit result. They project it to what’s called a sampling frame, which is a subset of your universe of claims for a particular period. And it usually ends up being a much bigger number in terms of a refund. Now the Medicare audits there’s a variety of number of audits that they can do.

I’ve mentioned two so far, a pro audit where they take a small sample and the audit result is gonna be just about the claims that are involved in this sample. The second type of audit is a svs, a statistically valid random sample, in which case those audit results are gonna be projected. Under a pseudo statistical basis to the universe.

And it’s gonna be about the alleged over payment in the entire universe of claims, realizing that they can go back five years. And then there’s another kind of audit called a TPE audit. It’s a targeted probe in education. Where they do a sample of claims, usually 20 to 40 claims. And then if they find any errors, then they go through education.

You’ll have to refund that money. It triggers some disclosure liability as well, which makes them more nefarious than they would seem on the surface. And the then you have. About 240 days to implement corrective action. Then they do another sample. If you fail that there’s a third round that you go through, and if you fail the third.

Then that becomes problematic where they report to cms. Usually at a minimum, it’s gonna result in loss of your Medicare credentials being added to the preclusion list, which would prohibit you from getting credentialed again in the future. As well as, the obvious disclosure refund liability associated with three rounds of adverse findings.

Now, the interesting thing is that if you disagree with the first round and you appeal it, 240 days is a very short cycle to get. Issue resolved, at least at the administrative law judge level where you potentially have the opportunity of demonstrating that the audit result or declaration of error is inaccurate.

And if you don’t, the fact that you’re appealing the first one isn’t gonna keep you out of the second round. It’s a process that when you get in the TPE process, you get into strict compliance with whatever they say, whether you have to or not, just as a means of getting out of the TPE audit program because you have to pass in order to get out.

Now we’ve talked about these audits and I don’t really wanna focus on the issues. As in, in chiropractic, if you’re gonna get audited by Medicare, you should pretty much assume they’re gonna deny a hundred percent. It is a very rare scenario where evaluation of medical necessity actually being done under the standards that are in the benefit policy manual.

And if you wanna look those up, that’s internet only manual IOM Pub 102 chapter 15, section two, 40.1 0.3. There’s also some medical necessity stuff at two 40.1 0.5. Very rarely do you see those standards being applied as they’re evaluating medical necessity. Instead, they use the documentation content requirements in two 40.1 0.2 0.2, both for the initial visit and subsequent visits and where they don’t find strict compliance with those elements.

To include documentation of subluxation by part or x-ray as well as all the other history of present illness systems review past family social exam. And where they really trip people up is they take the treatment plan requirements that they, you say, that they say you should comply with, should becomes a must.

And then they take beyond frequency and duration, they’re looking for objective, measurable goals even. The requirement to the extent that it’s a requirement at all requires specific goals and objective measures to evaluate treatment effectiveness, which is nothing more than re-exam. So nonetheless, they create this requirement of objective, measurable goals.

Your documentation won’t have them, you lose, and then we have to try to argue that’s not an objective standard and that the medical necessity criteria were actually met. You can help of course, if you’re not doing once a month or once every periodic care, but you actually have a notable mechanism, a precise, deliberate course of care with your documentation focusing on how that care benefited the patient.

And there are documentation approaches that I’ve developed that help you do that. They’re miserable which is why most providers are moving to cash. And because of that the chiropractic spend is diminishing. And I expect that there will be fewer and fewer chiropractic audits going forward.

And that doesn’t mean you should go crazy. By the same token, they are still happening. They’re just not happening with the frequency that they used to because most providers have recognized it’s almost impossible. While it is impossible to strictly comply with their documentation, content requirements Patient management, et cetera and make a profit because the case durations are so short.

Medicare believes that the, an acceptable average number of visits per patient per year is in the between five and six visits. So when you’re making 40 bucks a visit, That’s $200 plus the exam and maybe the x-rays. It’s a $400 case. The documentation burden, it takes me an hour to write it. The likelihood that you’re gonna have post payment risk in Medicare is significant, especially given the way that they evaluate the documentation.

All those issues aside that doesn’t mean that they’re right. And it’s interesting, some cases that arose probably five years ago as part of abo analysis that was done by what was called a Supplemental Medical review contractor Strategic Health Solutions down in the Southeast. A number of those cases we just got through an appeal.

They were jammed up in the backlog, so it took. To get these to a hearing. But we’ve pretty much cleared most of those and interestingly enough, have resolved those cases successfully but at huge expense and an enormous burden of time for the provider. It’s nice to get a win, but. At what cost and those appeals went forward just because while the audit result was maybe for $1,200, the voluntary disclosure issues that audit raises, meaning we have a determination that pretty much everything we’ve done was bad.

That triggers an obligation to go back and refund and disclose similar air quotes error for the past five years, or we have to appeal. The appeal option was the one that was taken. Fortunately, those providers had malpractice coverage like ChiroSecure that provided audit defense that covered their costs.

So they weren’t out of pocket for the appeals. But nonetheless it was a time consuming and burdensome process. And while nice to get a win at the end, it’s like a pure victory. Because those practices nonetheless had to implement corrective action to the extent that they continued Medicare billing or they abandoned Medicare billing altogether and move those patients to cash.

And that was a subject of a recent thing. So I won’t belabor that point. The common basis for adverse determinations, as I mentioned, is. Predominantly documentation content. So you could have had a patient that tripped over the cat, did a head plan into the wall, has severe neck problems, restricted mobility, loss of daily function.

And you have all that down. But I’ve seen cases where one of the HPI elements, history of present illness. So if you think of those location, quality, severity, duration, timing, context associated sign symptoms, modifying factors, one of those elements was missing. This wasn’t their case. The care isn’t medically necessary and that’s how.

Precise, they are in analyzing documentation. The normal reason, however, is lack of objective, measurable goals. In, in some cases, evidence of change was limited to a reduction in the pain scale. The VAs and they declared a care to be palliative. We had a few cases involving instruments where they alleged that.

The instrument didn’t cause manipulation which is the limit of coverage for chiropractic under the Social Security Act. So there were some weird ones, but predominantly its documentation. Once you get a determination I’ll conclude with walking you briefly through your administrative appeal rights.

Unlike a commercial carrier, you can’t file an appeal and make a settlement proposal, get on the phone and work it out. That’s the way the system used to work under what was called the carrier fair hearing process, and you did that discussion with your local Medicare administrative contractor or Medicare carrier.

Now, You get a what’s called an initial determination from whoever did the audit. Usually it’s a up pick, could be an smrc or it could be the Mac your local Medicare contractor. They issue a letter that says you were paid inappropriately. Wherever that letter is generated, it goes to your. And then they follow that with an actual demand for payment.

It’s called an MMA 9 35 payment demand. And that’s what triggers your appeal rights and the appeal process once that letter comes down. Couple of things happen. You have 30 days to pay that money back to avoid the imposition of impa interest and to avoid recruitment. So if you file your appeal, your first level appeal, which is called a request for redetermination, which goes to your local Medicare contractor within that 30 days They won’t recoup that money out of future claims, but if you haven’t paid that money, interest will start accruing on day 31 and the interest rate is pretty high.

I think it’s back over 10% now. Which, if they were offering investment opportunities in that, I would definitely be in. But they’re not the so interest will accrue until that money is paid. But we can. Stop recruitment by filing an appeal within 30 days. Now what you have to understand is that the regulations allow 120 days from the day you receive that payment demand to actually get your redetermination appeal in.

If you decide to take the entire amount of time, not only will interest begin accruing on day 31, but if you. If you’re continuing to submit claims, they’ll start to recoup the money on day 31. And recoupment will stop once you file your request for redetermination. So once your Medicare contractor gets your request for redetermination, then they will issue a decision and you can pretty much bet the house that it’s gonna be unfavorable.

Very rarely do you get meaningful analysis of your appeal at the redetermination. So once that decision comes down, then 30 days go by, recruitment starts again. So if you file your next level of appeal reconsideration within that 30 days, again, you can stop recruitment. But again, interest continues to accrue.

If you decide if you’ve already paid back the money you, you have technically 180 days from the date you receive the redetermination to file your level two appeal, which is called a request for reconsideration. That goes to what is called a qualified independent contractor, which would be C two C Innovative Solutions.

Advanced Med used to be one. I don’t see. Doing these anymore, but C2 C Innovative solutions is the quick or qualified independent contractor qic, that will evaluate your recon decision. That level of appeal is also 99% likely to be unfavorable. Once that decision comes down, filing a request for a third level of appeal or administrative law, judge hearing does not stop recruitment.

So at that point, recruitment’s gonna go forward and they will recruit money until the primary or principal balance of the overpayment is paid, plus any accrued interest up to that point. You have 60 days from the date of receiving the administrative law, or I’m sorry, the quick decision to file a request for an administrative law judge appeal.

I won’t get into some significant things, but any evidence that you want to go to the judge has to have been submitted to the quick so if there’s additional records or, whatever, expert reports, all that stuff has to be considered by the quick in order for it to be considered by the administrative law.

Once that request is filed with the Office of Medicare Hearings and Appeals it gets assigned to a judge. There are Omaha ALJ offices scattered around the country, and while they try to assign the case to a judge in your home area that may or may not happen because they’re still working down and they have a pretty much caught up.

A significant backlog that occurred. Once they changed the voluntary disclosure rule. Basically everything got appealed. They weren’t prepared for that. And at one time there was a backlog of 800,000 provider cases and several hundred thousand patient submitted appeals at the administrative law judge level.

And they were significantly behind. While. A decision is supposed to be rendered within 90 days of when you file your appeal, which means the hearing has to happen in between. It was taking four and five years to get a to get a hearing and then however long the judge took after that to get the decision out.

Ahead, resolve one case recently where the services at issue were more than 10 years. That’s how long it was taking. Now it seems like that process, the backlog is pretty much worked out and it’s happening a lot quicker, so that, that’s actually a good thing. So you request your hearing it gets scheduled and you have a live hearing over the phone.

With an administrative law judge, it’s usually one sided. The contractors can participate either as a participant or as a party. Usually they elect not to unless there’s some significant issue. And you present your case in front of the judge, with the doc, the experts, and then the judge renders a decision.

Decisions, especially if you’ve conceded some of the claims based on expert analysis. The best decision you’re gonna get is what’s called a partially favorable decision. And our hope is that the judge follows the expert’s analysis and which we present as being. The right way to do the analysis under to evaluate medical necessity.

Under the guidance that’s published by CMS beyond the alj, there are two more levels of appeal. The Medicare Appeals Council, and then ultimately federal District Court. The only cases that you would consider taking up to that level would be they would have to have significant monetary value, and you would have to determine that the judge made an error of law in the determination.

Before you would have a credible basis, to further appeal. There are jurisdictional limits, of course. At the ALJ level, it’s presently $180. Certainly CMT services don’t pay that much, but you’re allowed to aggregate a number of claims to meet the jurisdictional limit. There are higher requirements for the Mac and federal district court process.

But like I said, those levels very rarely. Get implicated and you would never take a case up. If there were you. The records were weak or something like that. There’s an old adage, bad facts make bad law. So we don’t want mac decisions or federal district court decisions that have larger import beyond the case that you’re looking at.

So you have to be cautious about what you appeal up to those levels. So that’s basically, the Medicare process. Be sure that when, if you get a record request, you make sure that it’s not one of these risk validation things, cuz if it is you send those records, you don’t need to worry. But if it is from a up pick your Medicare part B contractor or an smrc or something like that, and the patients are covered by Medicare Part B Do yourself a favor, get help early.

Don’t think that you can self help your way through this process because it is very you need to understand the issues and how to argue these things. So get competent help early. I hope that was helpful. And next week Dr. Sam Collins will be here to enlighten you with, I’m sure what will be an interesting topic.

And we’ll see you next time.