(December 29, 2010): At the outset, it is important to keep in mind that the following observations merely reflect our opinions, nothing more, regarding the participation of an AdQIC in the Medicare appeals areas. These observations are based on our experiences working on health care provider post-payment audits of Medicare claims, over many years.
I. Overview of the AdQIC's Stated Responsibilities:
Many health care providers are familiar with the revised administrative appeals process for contesting denied Medicare claims. In exercising their appeal rights, many providers (or their legal counsel) have appealed denied claims through the second level of appeal, submitting their claims and arguments in support of payment to the Qualified Independent Contractor (QIC) responsible for hearing reconsideration appeals. Q2 Administrators (Q2A) is one of the contractors selected by the Centers for Medicare and Medicaid Services (CMS) to serve as a QIC.
Notably, Q2A has also been awarded the first task order to serve as Administrative Qualified Independent Contractor (AdQIC). Q2A’s responsibilities as AdQIC are separate and distinct from its responsibilities as one of the general QICs chosen by CMS to serve as the reconsideration reviewer of denied Medicare claims.
The role played by Q2A as AdQIC is often misunderstood by many health care providers. Officially, Q2A performs its AdQIC duties out of its headquarters in Columbia, South Carolina. As Q2A’s reflects, in its role as AdQIC, is responsible for performing a number of essential administrative appeal functions. As AdQIC, QA2 notes that the unit is responsible for:
- Developing training and standard work protocols.
- Analyzing appeal outcomes.
- Recommending improvements to the appeals process.
- Managing case files.
Sounds fairly innocuous doesn’t it? Unfortunately, the current AdQIC system represents a major challenge for prevailing providers to overcome. Rather than merely “analyzing appeal outcomes,” as Q2A’s website reflects, the AdQIC has effectively become CMS’ appellate counsel, challenging favorable decisions by Administrative Law Judges (ALJs) with which it disagrees (typically because the decision is not supported by the record or allegedly incorrectly applies the law). At this time, we have not seen any cases where an ALJ ruled against a health care provider but the AdQIC chose to appeal the negative determination, irrespective of any action that the provider might choose to take. Instead, our review of the cases referred to the Medicare Appeals Council (MAC) by the AdQIC suggests that unit is only interested in cases where the presiding ALJ has ruled in favor of the provider.
II. So What Does as AdQIC Really Do?
As Q2A’s website reflects, the company’s stated mission is to:
“[P]rovide support and services to the Federal government and other customers that reflect our ideal of ‘Quality to the Next Level.’ Q2A delivers consistent, quality outcomes and solutions for our customers by utilizing sound processes and a stringent quality assurance program. (emphasis added).
On its face, Q2A’s mission expressly reflects where its interests lie – the company’s focus is on delivering “consistent, quality outcomes and solutions” for its “customers.” In the case, the customer is CMS, not health care providers. As the “Frequently Asked Questions” section Q2A’s website reflects:
Question: What happens after I receive a favorable (emphasis added) ALJ Decision?
Answer: Favorable rulings by an Administrative Law Judge (ALJ) do not result in immediate payment of claims.
Once an ALJ rules favorably on an appeal, the Office of Medicare Hearings and Appeals (OMHA) forwards the decision and case file to the Administrative Qualified Independent Contractor (AdQIC).
The AdQIC subsequently has 10 days to update the appeals tracking system and to decide whether the case requires further review by the Medicare Appeal Council or is sent to the Medicare contractor for payment. The AdQIC’s review cannot begin until it receives the case file. Regulations do not require the OMHA to forward case files within a given amount of time.
If the AdQIC refers the case to the Medicare Appeals Council, the Medicare contractor that processed the original claim is notified. Effectuations (payment of claims) made by the contractor are then contingent upon the Medicare Appeal Council’s decision.
For ALJ decisions that require no further review, the AdQIC sends an effectuation notice to the contractor, who must then pay specified claim amounts within 30 days. Effectuations in which the contractor must calculate the amount may take up to 60 days.
While an AdQIC doesn’t have the authority to appeal a favorable ALJ decision to the MAC, it can (and often will) refer a case (where the provider prevailed) to the MAC and ask that the Council review the decision. Two primary points of contention have been typically been appealed by the AdQIC:
(1) Cases where the ALJ has overturned an extrapolation of damages.
(2) Cases where the ALJ has held that a provider is not liable for alleged overpayments associated with one or more claims under Section 1870 of the Social Security Act.
In many (but not all) cases, the MAC will, in fact, open and review an ALJ’s favorable decision. We have handled cases where the MAC chose not to review a favorable case holding, depsite the fact that it was referred by the AdQIC. When the MAC chooses to review a holding, it may issue its own judgment or it may choose to remand the case back to the presiding ALJ for his / her reconsideration of the contested points.
III. Don’t Go Into This Process Alone – Retain Experienced Legal Counsel:
As Medicare claims audit and assessment efforts increase (through CMS’ use of ZPICs, RACs and PSCs), health care providers will be under increasing pressure to ensure that statutory and regulatory coding and billing requirements are met. Despite your best efforts to remain compliant, you may find that your practice or clinic is subjected to review. Should that occur, we strongly recommend that you retain qualified, experienced legal counsel to represent your interests. In a number of cases, we have been retained by other law firms to assist with administrative appeals. When working with other law firms, the level of our involvement has varied from case to case.
IV. When is a “Win” Truly a “Win”?
Unfortunately, it is becoming more and more difficult each year to rely on a favorable ALJ ruling. Over the past year, the AdQIC has become more aggressive than ever in challenging holdings with which it disagrees. As a result, it is important that your counsel plan for beyond the ALJ level when asserting defenses to the government’s arguments. While a number of arguments may be persuasive to an ALJ, the same arguments may also automatically generate a referral by an AdQIC to the MAC. When hiring an attorney to handle your Medicare claims case, be sure and ask prospective counsel the following:
- How much of your law practice is devoted to health law issues?
- Please describe the extent of your experience handling large, complex administrative appeals of denied Medicare claims.
- How often have you responded to AdQIC appeals of favorable ALJ decisions?
- How often have you handled MAC appeals?
- Can you provide provider references?
Hopefully, your practice will not face a large administrative appeal of denied Medicare claims. However, should such an event occur, you need to be ready to respond to the contractor’s audit. While there are no guarantees in this business, knowledge of the rules and experience handling administrative appeals may prove essential to increasing the likelihood of your success.
Robert W. Liles, J.D. represented healthcare providers and suppliers around the country. Liles Parker attorneys have extensive experience handling complex Medicare administrative appeals. Our attorneys have represented Home Health Agencies, Hospice Companies, Ambulance Companies, Chiropractic Clinics, Physical / Occupational / Speech Therapy Clinics, Nursing Homes, Physician Practices (E/M Claims), Psychology Practices, DME Companies and a wide variety of other Medicare Part A and Part B providers. Should your practice or clinic be audited by a ZPIC, RAC or PSC, give us a call for a free consultation. We can be reached at: 1 (800) 475-1906.