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 + The Appeal Process: Part A and Part B 3 + Who Decides? 4 4 2

3 + 5 Getting Started + Getting Started 6 42 U.S. Code 1395ff - Determinations; appeals Medicare Claims Processing Manual Chapter 29 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 Best Practices from Office of Medicare Hearings and Appeals (OMHA) Medicare Appellant Forum February 12, ntations.pdf 3

4 + Requesting an Appeal 7 A written request must include (at Every Level): Beneficiary name Medicare Health Insurance Claim (HIC) number Specific claim line for which a redetermination is 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. (OMHA disagrees!) A request may be filed on Form CMS CMS-Forms/CMS-Forms- List.html SIGN IT! + Getting Started: Parties 8 Who may appeal? Beneficiaries, Providers Physicians and other suppliers who do not take assignment on claims have limited appeal rights Grievances/OrgMedFFSAppeals/Downloads/CMS20027a.pdf Non-Party Must Submit Authorization Of Representative 42 C.F.R CMS Form Forms/Downloads/CMS1696.pdf 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 4

5 + Level One: Redetermination + Level One: Redetermination 1 0 Written request to MAC/DMAC Must be filed in 120 days from initial determination (denial) Must be decided in 60 days Be sure to sign the appeal letter Be sure to list all claims at issue If the appeal is rejected for technical reasons, e.g., lack of signature, request that the claim be reopened for correction 5

6 + Overpayment? Consider Your Repayment Options 11 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 + Staying Recoupment Pending Appeal Medicare will not recoup an overpayment if you appeal super timely. Section 935(f)(2)(a) of the Medicare Modernization Act of 2003 (MMA) ; 42 C.F.R 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 6

7 + Stay on Recoupment 13 The MMA not change: The appeal timeframes: 120 days to file for the 1st level 180 days to file for the 2nd level 60 days to file for the 3rd level 60 days for 4th, and 60 days for the 5th) The requirement on interest accrual and assessment for each 30-day period from the date of the demand letter if the overpayment is not fully paid within 30 days of the demand notice or until the debt is fully paid off + Extrapolated Overpayment Based on a Statistical Sample 14 Keep all appealed claims in the sample together but appeal only the denied claims not all in the sample Note on your pleadings that the cases are part of a statistical sample If you win on some claims but not all, the overpayment extrapolation will be recalculated and a new demand letter issued You should observe appeal deadlines even if no reextrapolation has arrived Again, appeal only the claims denied 7

8 + Overpayment Based on Sampling 15 Request Discovery Re Sampling Methods (attached) Hire a Statistician to Evaluate the Sampling Determine if there are valid bases to challenge the sampling Evaluate the nature of the claims for consistency May create non-normal distribution Inconsistent HCPCS Codes Inconsistent dollar values Sample too small? Very difficult to show as most Auditors use programs to determine sample size BUT Evaluate whether any claims in the sample were previously reviewed on audit or ADR If so, see if reopening is timely + Administrative Finality and Sampling 16 Medicare regulations thus provide that the contractor is limited to reopening claims that remain within their bailiwick. Under the regulations, a QIC may reopen its own Reconsideration decision, and an ALJ, its decision, and so on throughout the appeal process, but only within the limited time frames allowed for their own reopenings Once the time frames for each adjudicator s review have passed, the decision is final and not subject to reopening. Specifically, QICs, ALJs, and the MAC are limited to reopenings for good cause within 180 days from their own decision. Once a claim has been appealed to the QIC, to the ALJ or beyond, the contractor has no authority to reopen that claim, even for good cause The Medicare Program Integrity Manual, CMS Pub , (MPIM) affirms that Medicare specialty auditors, such as RACs and ZPICs have also similarly restricted in their authority to reopen claims. 42 C.F.R (d) 8

9 17 Request for Statistical Methodology Discovery As the authorized representative of the above referenced facility, we formally request all data used in the calculation of damages in the above-referenced audit. This audit is the subject of litigation and so speed is of the essence. We request all data files (in electronic usable format, flat file, unpacked and unlocked) used in the calculation of the overpayment. In short we are requesting all of the information necessary to replicate the audit at every level as required by CMS, standard statistical procedures and methodology. Please include the calculation of the point estimate or the one sided overpayment amount, including the program used and the output. The SSOE Sample Worksheet. Please provide a complete copy, if available. We request sample methodology dates, unit of analysis, method used, and decision criteria as referenced in the SOSE, but not produced. The signed audit report and revisions should also be provided. We request electronic copies of the data files of universe, frame and sample (as well as any files used to construct them sorted as they were when the files were created). This should include claim line detail for aggregated claims in the universe, frame and sample. Please indicate amount of reimbursement paid for each claim line. The Sample Design Documentation. Please provide the complete documentation of the methodology, written sampling plan, any probe samples, statistics, decision criteria, methodology for handling data anomalies, calculations and choices about representativeness of sample size requirements, reasons and decision dates for samples, and any statistical analyses of error rates. We specifically request the sample plan, random number tables, seeds and files to which they were applied. The data files and statistical formula used in calculation of the point estimates and confidence intervals should be included. Any additional information, decisions or discussions that deviate from the stated methodology are necessary to replicate the process utilized in the audit and projection of alleged overpayment. + Level Two: Reconsideration 9

10 + Level Two: Reconsideration 19 A party to the redetermination may request a reconsideration if dissatisfied with the within 180 days Written Request to QIC See 42 C.F.R SIGN IT! 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 + Reconsideration 20 A minimum monetary threshold is not required to request a reconsideration A request for a reconsideration may be made on Form CMS Grievances/OrgMedFFSAppeals/ReconsiderationbyaQualifiedIn dependentcontractor.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 10

11 + 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 Qualified Independent Contractor Reconsiderations are conducted onthe-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 + Level Three: Office of Medicare Hearings and Appeals 11

12 + Request for ALJ Hearing 2 3 If at least $140 remains in controversy following the QIC s decision, a party to the reconsideration may request an ALJ hearing Amount in controversy adjusted annually 42 C.F.R (f) See Grievances/OrgMedFFSAppeals/Downloads/AppealsProcessFlo wchart-ffs.pdf Appeal must be filed in writing within 60 days of receipt of the Reconsideration decision Procedures for requesting an ALJ hearing Forms/Downloads/CMS20034AB.pdf. + Requesting an ALJ Hearing 24 Jurisdictional Elements QIC reconsideration/dismissal/escalation Amount in Controversy ($140) (2013) Timely Request (60 days) Party standing Requests for Hearing Include All 42 C.F.R (a) Elements Send to Centralized Docketing Forms/Downloads/CMS20034AB.pdf 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 Appellants must send a copy of the ALJ hearing request to all other parties to the QIC reconsideration (Beneficiary) 12

13 + ALJ Authority 25 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 NCD/LCD, Manual Instructions Whether Sampling Met CMS Requirements Liability Issues 1879 Limitation on Liability 1870 Overpayment Waiver Provider Specific Provisions + ALJ Hearing Issues 26 Evidence New Witness Testimony Permitted Good cause must established for submitting written evidence for the first time at the ALJ level (42 C.F.R ) New denial basis introduced by QIC may constitute good cause, but not always Appellant is charged with making the prima facie case OMHA Appellant Forum Recommendations Don t bury the case in lots of technical/legal discussion Consider Waiving the Hearing (Not recommended without more info!) Keep the discussion simple 13

14 + Causes of Delay 27 All parties not copied on the request for hearing ( ) Untimely request for hearing ( ) Request for hearing sent to the incorrect entity or not sent to all parties ( ) Discovery requested ( , ) Written evidence is submitted late ( ) Appellant has material missing evidence ( ) Appellant waives timeframe ( ) Consolidated hearing granted at request of appellant ( ) + Level Four: Appeals Council 14

15 + Appeals Council 2 9 The Medicare Appeals Council ALJ Decision Binding on the parties, unless reopened or Appeals Council decides to review on Own Motion Post-Hearing Appeals Appeals Council review 60 days to request CMS can refer cases for Own Motion Review Grievances/OrgMedFFSAppeals/Downloads/DABform.pdf + Level Five: Federal Court 15

16 + Federal Court 31 Any party to the Medicare Appeals Council (Appeals Council) decision or an 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, may seek Federal court review if the amount remaining in controversy satisfies the requirements set forth in 42 C.F.R days to request review Standard of review: substantial evidence based on the record + Appeals of Hospital Inpatient Claims 32 16

17 + The Difficult Challenging of Inpatient Admission Denials 33 Medical Necessity is a term laden with legal and administrative meanings that are contradictory and poorly defined The need for physicians in the moment best medical judgments do not mesh with a complex Medicare payment system that requires documentation of decision-making Medical Review seems less focused on the rational decision making of the treating physician than on the availability of less intensive or cheaper treatment options A lack of consensus on treatment options seems to lead to second-guessing physician judgment. + Case Study 34 When MB left the hospital after surgery after hip replacement surgery and an infection in the incision, she was able to walk with the assistance of a cane and without pain. She returned to her apartment where she lived alone. Five days later, she awoke one morning to find her knee tender, painful, and swollen. The pain persisted for the next week. Finally, she was brought by ambulance to the hospital and carried in by stretcher to the Hospital ED. She could no longer walk except in pain. The admitting doctor examined MB and found that she had swelling from the left knee to the ankle, warm skin over the mid- to lower leg plateau, red spots on the lower left leg, and could walk only in pain with the assistance of a crutch, and only for fifty feet. The patient was admitted to the hospital. The diagnosis on admission indicated status-post removal of infected hardware from left femur--inability to walk. 17

18 + Case Study, Continued 35 Upon admission, MB had x-rays taken not only of her left knee but also of her left hip. The knee was determined not to be fractured or dislocated. Rather, a spur had developed at the inferior portion of the patella. Over the coming days, she underwent intensive physical therapy for the knee and was released, able to "ambulate well. The claim for an inpatient stay was denied as not medically necessary. On redetermination, the MAC said the knee joint was distant from the site of left hip swelling and infection. Swollen knee did not require hospitalization. Diagnostics could have been done on an outpatient basis. Similarly, the QIC stated that upon admission, there was no swelling or redness of the knee to indicate the presence of infection at admission. The QIC also noted that the admitting order did not appear to have been signed by the admitting physician. On appeal to the ALJ the physician testified that he saw a possible link between MB s left hip infection from which she had just recovered and the pain in her knee but the link was not expressly described in the medical record. + Making the Prima Facie Case 36 Assume nothing Do not assume that the ALJ will be familiar with the relevant benefit or its coverage criteria Set out the relevant coverage policy Medicare statute, regulations, manuals, LCDs, NCDs Do not assume the stated basis of the denial is the only issue you need to defend Is there is anything else they can say no to? Reference specialized documentation you must show to establish coverage Diagnosis codes Physician orders Certifications Signatures 18

19 + The Prima Facie Case 37 Do not submit evidence as if it speaks for itself Make the patient personal Draft a cover page to be appended to each set of documents telling the patient s story, referring to the record Summarize critical elements in the patient s case and cite to the record Affirmatively state that prima facie case for coverage is satisfied It will be difficult to establish good cause to submit these elements post QIC + Documenting Decision Making: The Role of the Physician 38 Medical Review appears to require physicians to 'download' the thought process that led them to choose one treatment option over other options Practically speaking, physicians do not document the thought processes that lead them to select one therapy instead of another Denials are based on the fact that the physician's rationale for rejecting observation instead of an admission is not spelled out in his records or clinical notes or supported through independent sources 19

20 + Medicare Benefit Policy Manual Chapter 1 - Inpatient Hospital Services 39 Section 10. An inpatient is a person who has been admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services. Generally, a patient is considered an inpatient if formally admitted as inpatient with the expectation that he or she will remain at least overnight and occupy a bed even though it later develops that the patient can be discharged or transferred to another hospital and not actually use a hospital bed overnight The physician or other practitioner responsible for a patient's care at the hospital is also responsible for deciding whether the patient should be admitted as an inpatient. The decision to admit a patient is a complex medical judgment which can be made only after the physician has considered a number of factors, including the patient's medical history and current medical needs, the types of facilities available to inpatients and to outpatients, the hospital's by-laws and admissions policies, and the relative appropriateness of treatment in each setting + Standards for Review 40 Medicare Benefit Policy Manual Chapter 1 - Inpatient Hospital Services Covered Under Part A (Continued) Factors to be considered when making the decision to admit include such things as: The severity of the signs and symptoms exhibited by the patient; The medical predictability of something adverse happening to the patient; The need for diagnostic studies that appropriately are outpatient services to assist in assessing whether the patient should be admitted; and The availability of diagnostic procedures at the time when and at the location where the patient is seen 20

21 + Defending the Admission: Severity and Treatment 41 Tell the patient s story clinically and the treatments/services provided What caused the patient to come to the Hospital? Who recommended that the patient go to the Hospital? GP? Specialist? SNF? Had the patient failed to thrive in a different setting? How did the patient arrive at the hospital, in an ambulance, family, public transportation What was the patient s status at the time the admission decision was made? Describe appearance, mobility, lucidity Has the patient status changed since arrival? What was the initial Treatment in the ED? What symptoms remained after initial treatment? What was the patient s status at the time the admission decision was made? What was the treatment plan for the admission? Is the treatment plan s intensity consistent with severity + Defending the Admission: Adverse Consequences of the Alternative 42 Patients needing inpatient services are often suffering from chronic, non-curable or irremediable conditions that may not be directly related to the admission but may also affect the body's response to illness or injury Underlying systemic diseases, mobility, medications and poor nutrition are impediments to healing and decrease the probability that a patient will recover without the inpatient level of care In medical review, there is often little recognition that those have an impact on the ongoing medical necessity. Records of those conditions might not be in time frame requested in ADRs Discuss Applicable Conditions and Comorbidities Diabetes Vascular or arterial disease End stage renal disease (ESRD); Drug therapy Radiation, chemotherapy or steroid use 21

22 + On Going Medical Necessity: Connect the Dots 43 Link the risk factors and the decision to the admission decision Link the admission decision to the treatment plan Link the treatment plan to the severity Link the treatment plan to need for inpatient status (what are the reasons the treatment plan can only be safely done as inpatient) Entire record should reflect severity/risk that justifies the treatment continuously -- every day for all care givers Document Progress Relative to the last prior note Don t leave clinical conclusions unstated + Don t Neglect the Discharge 44 What were the discharge instructions? Discuss any new medications, treatments, and/or services that will be provided after discharge What future health problems were anticipated 22

23 + External Support for Clinical 45 Decisions Did The Admission Meet Hospital-specific standards? Inpatient Guidelines Approved By The Hospital s Utilization Management Committee Reference Published Standards Of Care Or Community Norms InterQual, MCG (Milliman Care), Or Heart Rhythm Society Guidelines Consensus Statements Standards Of Professional Organizations Text Books Peer Reviewed Articles + Documenting the Decision Making 46 Don t be drawn into Second Guessing Issue is the rationality of the medical decision: Discuss the record as the hospital and physician have and argue on that basis if the decision was rational Medical Review is not intended to be retrospective reevaluation of the decisions made An ALJ reviewing a medical necessity determination is at a disadvantage because no one from the Medicare program ever personally sees the beneficiary 23

24 + Consistent Evidence: Medical Records Must Support Treatment Decisions 4 7 In the vast majority of cases, if the attending physician s certification of the medical need for the services is consistent with other records submitted in support of the claim for payment, the claim is paid. However, if the medical evidence is inconsistent with the physician s certification, the medical review entity considers the attending physician s certification only on a par with the other pertinent medical evidence.... The only questions that can be considered based on the evidence in the medical record are the reasonableness and necessity of the patient's admission to the institution and the necessity of his or her continued stay. Both are discrete past events that can only be reviewed from a documentary medical record. Although the physician must make prospective judgments about the need for initial and continuing inpatient care, the medical review entity has the benefit of hindsight in reviewing a case retrospectively. For this reason, the review criteria set forth in regulations, Rulings, and other pertinent guidelines recognize that a physician's opinion and medical judgment should be evaluated in terms of the information available to the physician at the time. These criteria recognize that medical judgments may not always be clear cut at any given point in time and permit reasonable leeway in questionable situations. HCFA Ruling on Weight to Be Given Treating Physician's Opinion, HCFA Ruling, 93-1 (May 18, 1993) + CONGRESSIONAL INTENT 4 8 The approach to coverage that underlies medical review requirements can be traced back to the Congressional committee reports that accompanied the enactment of the Medicare program in 1965 The Senate Finance Committee emphasized "that the physician is to be the key figure in determining utilization of health services--and... it is a physician who is to decide upon admission to a hospital, order tests, drugs, and treatments, and determine the length of stay." (Report of the Committee on Finance, U.S. Senate, to accompany H.R. 6675, the Social Security Amendments of 1965 (S. Rep. No. 404, Part I, 89th Cong., 1st Sess. 46 (1965)) 24

25 + Substantial Evidence 49 In demonstrating to us that substantial evidence underlies his determination that inpatient hospitalization was not reasonable and necessary, the Secretary of course is at an immediate disadvantage, because none of his representatives ever personally examined [the patient]. To reach his determination, the Secretary had to patch together discrete findings and observations in records made by the very same health care professionals who were on the scene examining and caring for [the patient] and who were unquestionably in the best position to certify the necessity of a hospital stay. Given the Secretary's second-hand knowledge, we must necessarily demand that his review of the record be probing, precise, and accurate. State of New York d/b/a Bodnar v. Sullivan, 903 F.2d 122, 126 (2d Cir. 1990) + Donna Thiel Partner King & Spalding, LLC Washington, DC 25