Medicare Appeals Process Less Than Appealing
The revisions to the Medicare appeals process have been in effect for almost a year now. This revised appeal process was supposed to give us a simplified initial level of appeal, a reprieve from having to repay any overpayment assessments pending appeal, a limitation on "extrapolated" audits, and a new intermediate level of appeal (between the carrier and the ALJ) called the "Qualified Independent Contractor."
The Appeal Process
But are these promises being fulfilled? First, let's look at the new user-friendly initial level of appeal. I'll admit that the "re-determination" process is simpler than the old "carrier reviews." But simple is not always better. Under the old process, you had the opportunity to actually sit down (either face-to-face or over the phone) with a representative from the carrier and discuss the claims that were being denied, and since most EMS deals with vague and subjective terms such as "medically necessary," this open conversation about specific patients was extremely valuable. Now the best you can hope for is that the unknown person who is in charge of your "re-determination" request at the carrier's office will actually read what you submit. Of course, you do not have to submit anything other than a letter requesting that the overpayment assessment or denied claim be reviewed and re-determined; thus, the "simplified" nature of this level of appeal. However, it has been my experience thus far that anonymity at the carrier level (remember, no more phone calls or sit-down chats) has made this level of appeal nothing more than a rubber stamp of the initial decision. At best, it is not a thorough and thoughtful review of the claims, especially if you do nothing more than make an unsupported request for re-determination. The result? The process, while in fact easier, does not allow you to make the arguments that generally get EMS claims paid, and therefore you get a decision that may come quicker, but offers you little, if any, relief.
Limitation on Repayments
Then there is the limitation on repayments. In the past, you had to repay any overpayment assessment at the time it was assessed, but most carriers would agree to let you make payments. Now, payment plans must be considered by the carriers and, more important, no repayment is due until after the Qualified Independent Contractor (QIC) level of appeal. But this is not as clear as it may appear. While the appeals rules say that you have 120 days (re-determination level) or 180 days (QIC level) to appeal an overpayment decision and that no offsetting (keeping your money) can be done if you appeal, the carriers are beginning to offset 30 days after the decision, basically forcing you to appeal within 30 days instead of 180 if you want to prevent them from offsetting. The problem with this? If you do not have all of the evidence submitted with your QIC-level appeal request, then you cannot submit it to the ALJ without showing good cause as to why it was not submitted earlier. So you are forced to put together a thorough appeal and make payments in the meantime, or rush your appeal to prevent offsetting.
Extrapolated Audits
Now let's look at the limitation on the use of "extrapolated audits." If you have never been on the short end of an extrapolated audit, in a nutshell, it means that they take a sample of your claims (say 50 trips out of 1,000 claims totaling $250,000), assign an error rate based on the number of claims they say should not have been paid (say 20%), and then, instead of wanting 20% of the 50 claims back, they want 20% of the 1,000 claims back (or $50,000 instead of about $2,500). But we now have protection from this draconian practice, right? Not exactly. The way the provision was written, the carriers cannot use extrapolation unless they have given education on the overpayment issue in the past and the supplier keeps improperly billing (a rarity) or they find that a "high" level of error has occurred. There is no definition of what constitutes a "high" error rate, and so far I have not seen an ambulance overpayment case where the carrier or its "program safeguard contractor" has not concluded that the rate of error was "high." Since there is no way to challenge their determination, the decision stands, whether or not it is reasonable. Conclusion: The limitation on the use of extrapolation usually does not apply.
Independent Analysis?
Finally, the QIC. This intermediate level of appeal is supposed to be faster and guarantee independent analysis, unlike appeals conducted by carrier employees. The problem? According to CMS, there are only two QIC offices for Part B claims in the entire country. And, according to Steve Everett, who served as a Medicare Fair Hearing Officer for 16 years before his position was removed in the new appeal process, literally hundreds of hearing officers have been replaced by these two QIC offices. The result? According to Everett, "Since the current reconsiderations conducted by the QIC are all done in-house, it is impossible for the staff to have the expertise to provide quality, accurate and timely decisions. Couple this with the shorter time-frames for making decisions, and there you have it: Yet another good idea gone awry, with both providers and Medicare beneficiaries suffering the consequences."
I want to be fair: I have not dealt with every carrier, and the process is still relatively new, so it may be that CMS will work out the kinks. As of now, there certainly are some kinks that need attention.
G. Christopher Kelly is an attorney practicing in Atlanta, GA. Chris focuses on federal laws and regulations as they relate to the healthcare industry and specifically to the ambulance industry. He also lectures and advises ambulance company clients across the U.S. Contact him at chris@emscltd.com. This article is not intended to be legal advice.
