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CMS Seeks to Overhaul Medicare Claims Appeal Process

(July 18, 2016): The Centers for Medicare and Medicaid Services (CMS) has announced a series of proposed changes to the Medicare claims appeal process. The new rules primarily impact the Administrative Law Judge (ALJ) level of review, and CMS has indicated that the purpose of these changes is to help reduce the backlog of pending ALJ hearing requests. As many Medicare providers are aware, the claim appeal process consists of five steps:

  1. A request for redetermination by a Medicare Administrative Contractor;
  2. A request for reconsideration by a Qualified Independent Contractor;
  3. A request for a hearing before an ALJ;
  4. A request for review by the Medicare Appeals Council; and
  5. A request for review in Federal district court

Due to the frenetic auditing activities of CMS’ contractors in recent years – particularly the recovery audit contractors – this system has become overloaded with appeals. This is particularly true with respect to ALJ hearing requests filed with the Office of Medicare Hearings and Appeals (OMHA), where the enormous backlog has prevented OMHA from fulfilling its legal duty to decide appeals within 90 days. As of April 30, 2016 CMS estimates that there are more than 750,000 pending hearing requests. And the backlog only appears to be worsening: the average processing timeframe for an ALJ appeal has increased from 661 days to 819 days between 2015 and 2016.

CMS has stated that the changes to the claim appeals process have two main objectives: to streamline the ALJ hearing process and to increase the number of available adjudicators. Although these new changes impact most of CMS’ existing ALJ appeal regulations, the most significant revisions are summarized below.

  • The Medicare Appeals Council may render binding decisions. In many types of appeal systems, lower courts are required to follow the decisions of higher appellate courts. For example, the decisions of the U.S. Supreme Court are binding on all other Federal courts.

The Medicare Appeals Council is the highest level of appeal within the Department of Health and Human Services, and it is responsible for reviewing ALJ decisions. The Council’s decisions are currently not binding on ALJs or any of CMS’ contractors. The new rules would change this and permit the Council to designate certain decisions as precedential, which means that all of CMS’ contractors and the ALJs would be required to follow them. CMS believes that permitting the Council to render binding decisions would streamline the appeals process and allow for uniformity of some coverage and procedural issues.

  • Attorney Adjudicators will assist with appeals processing. ALJs do not just conduct hearings and write decisions, they also perform a variety of other tasks related to each case, such as: determining if the provider’s appeal is timely, valid, and complete; reviewing the record to ensure all pertinent case materials are present; and determining if good cause exists to admit new evidence offered by a provider.

CMS’ new rules would create new positions within OMHA called “Attorney Adjudicators,” who will be responsible for assisting ALJs with pending appeals. These new decision makers would perform most of the ancillary tasks currently undertaken by ALJs, thereby allowing the judges to focus on holding hearings and issuing decisions.

  • The amount in controversy requirement will increase for some providers. In order to file an ALJ hearing request, the current “amount in controversy” must be at least $150. When determining whether this requirement has been met under the existing regulations, an ALJ will consider the amount billed by the provider to Medicare for the item / service / claim in question.

The new regulation will change the amount in controversy rule for providers who are reimbursed according to a fee schedule, such as physicians, labs, or suppliers of durable medical equipment. In those cases, the amount in controversy will be changed from the amount billed to the amount allowed per the fee schedule. CMS believes that this will reduce the number of appeals submitted to OMHA. It is important to note that, under this new proposed rule, providers will still be permitted to bundle claims together to meet the amount in controversy requirement for an ALJ appeal. For providers who are not reimbursed based on a fee schedule, the amount in controversy rule will continue to be determined according to the amount billed for the claim or service.

These are only three examples of the changes sought by CMS. Many other aspects of the ALJ hearing process will also change, such as when new evidence may be admitted into the record, how cases involving statistical sampling and extrapolation should be handled, and how CMS’ contractors may participate in an ALJ hearing.

In practice, some of these changes may work to the detriment of providers. For example, deeming certain Council decisions precedential would mean that the contractors and ALJs would be required to follow those decisions in identical or similar cases. This could deprive ALJs of independence and flexibility to decide cases based on the unique facts and circumstances of each appeal. CMS does not appear to have offered an estimate as to how many appeals may be affected by this portion of the new rules.

Similarly, the involvement of attorney adjudicators in the process may increase the procedural hurdles encountered by providers during the appeals process. Failure to adhere to most of the procedural requirements for an ALJ hearing request may result in dismissal of the appeal. This increased focus on procedural aspects of the process will likely lead to more providers seeking assistance from attorneys to navigate the increasingly complex hearing process.

Time will tell whether these adjustments to the claim appeal regulations will actually help alleviate the backlog of pending ALJ appeals. The most direct way for CMS to accomplish that result would be to rein in the contractors responsible for the never-ending stream of audits as opposed to tweaking the rules for appeals.

If you have questions about the Medicare claims appeal process or need help with an appeal, you should contact an experienced attorney to discuss your questions and explore your options.

Medicare Claim AppealLiles Parker attorneys assist providers across the country with all matters related to claim appeals, reimbursement, enrollment, compliance, and corporate formation / transactions. If you have questions or concerns about a pending Medicare claim appeal, please contact Adam Bird for a free consultation.  He can be reached at:  1 (800) 475-1906.

CMS Announces Home Health Pre-Claim Review Demonstration Project for Five States

July 5, 2016 by  
Filed under Home Health & Hospice

Pre-Claim Review(July 5, 2016) The Centers for Medicare and Medicaid Services (CMS) has announced a home health pre-claim review demonstration project to be initiated in five states. According to CMS, the purpose of the new project is to prevent improper Medicare payments, enhance quality of care, and deter waste, fraud, and abuse in the Medicare program. This pre-claim review demonstration will impact home health agencies in Illinois, Florida, Texas, Massachusetts, and Michigan.

According to the Operational Guide released by CMS, the general contours of this new project will be as follows:

  • Agencies will continue to submit requests for anticipated payment (RAPs) as usual.
  • At some point prior to submission of the claim for the end of episode (EOE) payment, agencies will be required to submit documentation to the Medicare Administrative Contractor (MAC) that substantiates the beneficiary is homebound, requires intermittent skilled care, and that a physician has certified the beneficiary’s eligibility for home health services.
  • The MAC will render a provisional pre-claim review decision to either affirm or non-affirm coverage of the services within 10 days of receiving the agency’s documentation. The decision letter will contain a rationale for the determination.
  • If the pre-claim review decision is affirmed, the agency can then submit the EOE at the appropriate time and will receive payment as usual.
  • If coverage is non-affirmed upon pre-claim review, the decision letter should contain the reason(s) for that determination. The agency will then have an unlimited number of opportunities to submit additional documentation to further corroborate that the services meet Medicare coverage rules. Those subsequent pre-claim review decisions will either affirm or non-affirm coverage for the claim. MACs will be required to render decisions regarding resubmitted documentation within 20 days of receipt.
  • If an agency submits an EOE after receiving a non-affirmed pre-claim review decision, the EOE will be denied and the RAP will be recouped. The provider will then be able to appeal that denial.
  • CMS has portrayed the pre-claim review process as “voluntary.” However, if an agency submits an EOE without first obtaining an affirmed pre-claim review decision, payment will be immediately stopped and the claim will be subject to pre-payment review. If the reviewer approves the claim upon pre-payment review, the reimbursement for the claim will be reduced 25%. This penalty is non-appealable. If the pre-payment review decision is unfavorable, the RAP will be recouped and the provider may appeal that denial.

CMS and the home health MACs will roll out this demonstration gradually throughout the five target states over the course of six months:

  • Illinois: August 1, 2016
  • Florida: October 1, 2016
  • Texas: December 1, 2016
  • Michigan and Massachusetts: January 1, 2017

In cases where providers do not opt to participate in the pre-claim review process, CMS has stated that the 25% penalty component of the project will be phased in three months after the commencement dates listed above.

According to Palmetto GBA, the home health MAC for Illinois, Florida, and Texas, providers will be able to submit the requested documentation via mail, facsimile, or an online portal.

Home health agencies across the five target states along with other stakeholders have aptly expressed concern as to the need for and potential ramifications of this demonstration project. Agencies are already under enormous pressure, for example, to obtain physician orders within specified timeframes along with appropriate face-to-face documentation from the certifying physicians. The pre-claim review project will only exacerbate those difficulties. In the meantime, agencies will now be expected to continue providing care to beneficiaries without any assurance that they will receive reimbursement for their services.

In our opinion, some of the biggest concerns with this demonstration relate to the timeliness and quality of the pre-claim reviews along with the possibility that the same claims could be subject to multiple audits by different entities.

Although CMS has stated that the MACs will “make every effort” to review pre-claim submissions within 10 days of receipt, there is no assurance they will consistently meet this goal. Unfortunately, the project guidelines announced by CMS do not contain any remedies for providers whose requests may be subject to lengthy processing delays.

The second concern principally relates to the quality of reviews and the adequacy of the explanations provided for “non-affirmed” decisions. Chapter 7 of CMS’ Operational Guide does not contain any requirements as to how detailed those explanations will be. If the MAC’s reasons for “non-affirming” coverage are vague or non-specific, as most unfavorable claim or appeal decisions by Medicare contractors tend to be, then many providers will be left wondering how to improve their documentation or what other records to furnish upon resubmission. This could result in significant delays in reimbursement for many agencies and substantial negative impact on otherwise compliant providers.

CMS has affirmatively stated that claims subject to the pre-claim review process will not be exempt from targeted reviews performed by other entities, such as Zone Program Integrity Contractors. Even the medical review staff at the MAC – the same entity charged with performing the pre-claim reviews – could theoretically initiate targeted medical review of home health agencies. CMS has not indicated whether claims submitted for pre-claim review could also be audited by the Recovery Audit Contractors or the Supplemental Medical Review Contractor. CMS has not offered any justification for the tremendous administrative burdens that serial audits of the same claims could impose on agencies.

In light of this new demonstration project, we recommend that agencies in all of the five states take the following steps to prepare for pre-claim review:

  • CMS has not specified exactly what documentation must be submitted with each pre-claim review request. However, the MACs are currently developing checklists for providers to use when preparing their documentation. Agencies should closely monitor their MAC’s website for this information and review it as soon as it is available. This will likely be an important tool when compiling documentation for submission.
  • Pre-claim review will apply to all home health claims – including recertification episodes – in target states as of the effective dates specified above. For example, initial face-to-face encounter documentation must be submitted with pre-claim review requests for all recertification episodes, even if the face-to-face was performed before the commencement of the demonstration project in that agency’s state. For this reason, providers should not wait to begin reviewing their documentation and searching for ways to improve it. We strongly recommend that providers initiate internal auditing protocols now, irrespective of when the demonstration may begin in their state.
  • Face-to-face documentation will likely play a key role in many pre-claim review decisions. If they have not already done so, we recommend that agencies conduct inservices with their physician referral sources now regarding timeliness and content requirements of face-to-face encounter records. If some physicians consistently refuse to document adequate or timely face-to-face encounters, agencies should consider no longer accepting referrals from those physicians.
  • Agencies should be aware that pre-claim review will likely disrupt their ordinary revenue cycles and begin taking appropriate action.
  • Agencies should regularly review Medicare coverage requirements for home health services as set forth in the Medicare Benefit Policy Manual. Moreover, agencies should familiarize themselves with the local coverage determinations (LCDs) of their MACs, which also contain guidelines for home health care. Palmetto GBA, for example, has LCDs that relate to physical / occupational / speech therapy services and home health care provided to beneficiaries with diabetes mellitus, among other topics.
  • To speed up the pre-claim review process, agencies should submit documentation via the MAC’s secure web portal instead of by mail or fax.
  • We recommend that agencies always utilize the pre-claim review process. The 25% payment reduction is too steep a penalty for non-compliance, particularly since any such claims would still be subject to pre-payment review upon submission of the EOE.

If you have questions regarding this new home health pre-claim review process, you should contact an experienced attorney to discuss additional steps that you could take to minimize the potential negative impact that this initiative will have on your agency.

Pre-Claim ReviewLiles Parker attorneys assist providers across the country with all matters related to claim appeals, reimbursement, enrollment, compliance, and corporate formation / transactions. If you have questions or concerns about a pending Medicare claim appeal, please contact Adam Bird for a free consultation.  He can be reached at:  1 (800) 475-1906.

CMS Expands ALJ Appeal Claim Settlement Process to Include Part A Providers

SCF Process(April 4, 2016) In an effort to reduce the enormous backlog of pending Administrative Law Judge (ALJ) appeals, the Centers for Medicare and Medicaid Services (CMS) recently announced that it has expanded the pilot Settlement Conference Facilitation (SCF) process to include Part A claims. This process, which was previously only available to providers with pending Part B appeals, is conducted by the Office of Medicare Hearings and Appeals (OMHA). OMHA is responsible for adjudicating ALJ hearing requests and is organizationally separate from CMS.  The SCF is performed by an OMHA staff attorney, who will use mediation principles in an effort to help the provider and CMS reach a settlement agreement. Because the SCF process is still a pilot program, OMHA has announced several limitations on SCF eligibility:

  • The provider must have filed its ALJ hearing request on or before 12/31/15, and the request must meet all applicable requirements for a complete and timely ALJ appeal.
  • SCF must include all claims for the same or similar services for which the provider has filed an ALJ appeal.
  • The provider must have at least 50 claims at issue with a total amount in controversy of more than $20,000 but less than $100,000.
  • The claims must not currently be scheduled for an ALJ hearing.

To initiate SCF, a provider may submit an “Expression of Interest” form to OMHA, which will then perform a review of its system to ensure the provider meets eligibility requirements. Alternatively, OMHA may send notice to a provider that it is eligible for the SCF process. The provider and CMS then have 15 days to respond to the notification and agree to participate in the conference. If a settlement conference is conducted and the parties reach an agreement, the provider will be required to stipulate to the dismissal of its pending ALJ appeal(s) as to all claims subject to the settlement. Otherwise, both the provider and CMS may decline to participate in SCF or decline to accept any offer extended by the other party. If no agreement is reached, the provider’s claims will be returned to the hearing process for adjudication before an ALJ.

This expansion of the pilot SCF program appears to be aimed principally at high volume appellants, i.e. individual Medicare providers with dozens or hundreds of pending claim appeals. Aside from those types of providers, it is unclear how many appellants may avail themselves of the expanded SCF process due to the narrow eligibility criteria. For example, many Part A claims can be worth several thousand dollars each. Therefore, it would be difficult for a provider to meet the minimum 50-claim threshold while also not simultaneously exceeding the $100,000 amount in controversy ceiling.

If you believe that you may be eligible for this new SCF program, you should carefully consider whether to submit an Expression of Interest to OMHA. On the one hand, the financial strain resulting from non-payment of claims denied on a pre-payment basis or the recoupment of monies for claims denied upon post-payment review could make SCF an attractive option for you. This is particularly true if you are not inclined to wait 27 months for OMHA to process and decide your appeal. On the other hand, there could be some drawbacks to SCF. For example, OMHA has announced that, even if a settlement amount is agreed upon by the parties and payment is made for some claims, those claims will still be considered “denied” in Medicare’s claims processing systems. Furthermore, providers will not be able to selectively submit some claims to SCF while moving forward with ALJ hearing requests for others; SCF must include pending appeals for all claims for the same or similar services from a given provider.

If you have questions regarding the new SCF process, you should contact an experienced attorney to help weigh your options. In the event you elect to move forward in an effort to settle your pending claims, we strongly recommend that you retain counsel to represent you during that process in order to help reach a settlement that is as beneficial to you as possible.

SCF ProcessLiles Parker attorneys assist providers across the country with all matters related to claim appeals, reimbursement, enrollment, compliance, and corporate formation / transactions. If you have questions or concerns about a pending Medicare claim appeal, please contact Adam Bird for a free consultation.  He can be reached at:  1 (800) 475-1906.

 

Update on American Hospital Association v. Burwell

ALJ Appeals(February 23, 2016):  The U.S. Court of Appeals for the District of Columbia Circuit recently issued a decision the Administrative Law Judge (ALJ) level of the administrative appeals process that breathes new life into efforts to resolve the backlog of ALJ appeals cases currently pending around the country.  The case, American Hospital Association v. Burwell, was originally filed by the American Hospital Association (AHA) to obtain a court order to force ALJs in the Office of Medicare Hearings and Appeals (OMHA) to adjudicate ALJ appeals within the 90 days mandated by law. The lower court initially refused AHA’s request and dismissed the case. On appeal, the D.C. Circuit reversed the lower court’s decision and remanded the case for further consideration. The appellate court instructed the district court to weigh all of the facts in favor of and against the AHA’s request and to issue a new decision. Although the case has now been returned to the lower court for further review, the D.C. Circuit appeared to suggest in its own decision how the district court should decide the case. The appellate court wrote, “…the clarity of the statutory duty [for Medicare ALJs to hear and decide cases within 90 days] likely will require issuance of the writ [ordering ALJs to timely adjudicate appeals] if the political branches have failed to make meaningful progress within a reasonable period of time – say, the close of the next full appropriations cycle.”

The importance of this decision for Medicare providers whose claim appeals are or may be stuck in “limbo” at OMHA cannot be overstated. The D.C. Circuit has clearly acknowledged the mandatory duty of ALJs to hear and decide claim appeals within 90 days. The court also strongly implied that the order sought by the AHA should be issued in the relatively near future unless Congress acts in the interim.

Meanwhile, the logjam at OMHA has continued to grow even since the AHA first filed suit. According to the agency’s own statistics, the average processing time for ALJ appeals hearing requests increased from 661 days in 2015 to 791 days in the first quarter of 2016. This fact may contribute to the court’s decision as to whether to order the ALJs to begin timely processing of cases.

It is likely that industry and trade groups representing other types of Medicare providers will take action to capitalize on the AHA’s success. CMS will also almost certainly step up efforts to lobby Congress to help fix the issue and to resolve the backlog of pending ALJ appeals. Ultimately, whether the ALJ appeala backlog is resolved by court order or through meaningful efforts by Congress and CMS, this is spectacular news for Medicare providers across the country.

ALJ AppealsLiles Parker attorneys assist providers across the country with all matters related to claim appeals, reimbursement, enrollment, compliance, and corporate formation / transactions. If you have questions or concerns about a pending Medicare claim appeal, please contact Adam Bird for a free consultation.  He can be reached at:  1 (800) 475-1906.

 

Medicare’s Home Health Probe and Educate Program is Underway

December 4, 2015 by  
Filed under Home Health & Hospice

Arbitration(December 4, 2015): The Centers for Medicare and Medicaid Services (CMS) has directed its contractors to initiate a home health probe and educate program review process with home health agencies around the country. The focus of this program will be to assess agencies’ compliance with the new face-to-face (F2F) documentation requirements that became effective 01/01/15.

CMS has directed its Medicare Administrative Contractors (MACs) to request records for 5 claims from each home health agency within their jurisdiction to review on a pre-payment basis. This review will apply to claims with dates of service beginning on or after 08/01/15. If the MAC denies one out of the five claims under review, it will send an education letter to the agency summarizing its findings and the process will be complete. However, if more than one of the five claims is denied or if the agency fails to submit documentation in response to the request, then the MAC will send a “detailed” findings letter and repeat the review process with another 5 claims with dates of service on or after the date of the findings letter. The purpose of this second review will presumably be to assess the agency’s compliance with the MAC’s previous education efforts.

As part of the post-review education process, CMS has directed the MACs to offer agency-specific education (to include a one-on-one telephone call with contractor medical review staff) regarding the face-to-face requirements.

Although CMS has not explicitly outlined further consequences for agencies with high error rates determined through this “Probe and Educate” program, it is likely that MACs would continue the review process for delinquent agencies, implement more extensive medical review audits on either a pre-payment or post-payment basis, or refer non-compliant agencies to a Zone Program Integrity Contractor (ZPIC) for investigation. In light of this new ongoing review program, home health agencies should:

  • Continue to obtain supporting F2F documentation on a rolling basis from referring physicians prior to submitting your EOE for the initial certification period. Agencies should not wait until Medicare requests records to obtain F2F documentation from referring physicians.

  • Promptly comply with the MAC’s request for documentation and ensure that all records submitted are complete and accurate. Records should be submitted via the MAC’s online portal or by some trackable method of delivery with signature confirmation.

  • Take advantage of the MAC’s offer to conduct one-on-one education with your agency, even if the review findings are largely positive. As all agencies know, the F2F requirement is extraordinarily vague, and agencies should always take advantage of educational opportunities offered by CMS and the contractors.

  • Contest any and all improper claim denials in the administrative appeals process.

Although the home health probe and educate reviews are, by definition, intended to be educational in nature, they could potentially result in serious consequences for non-compliant agencies. If a MAC has attempted to educate an agency regarding the F2F requirements and a subsequent audit by a MAC or another CMS review contractor determines that the agency has failed to adhere to the previous educational intervention, this could set the stage for an extrapolated overpayment assessment or a payment suspension.

Liles Parker attorneys can assist you with your home health probe and educate obligations.  We also represent home health agencies across the country with all matters related to reimbursement, enrollment, compliance, and corporate formation / transactions. If you have questions or concerns, please contact Adam Bird for a free consultation.

Bird,Adam-WebAdam Bird is a health law attorney with the firm, Liles Parker, Attorneys & Counselors at Law.  Liles Parker has offices in Washington DC, Houston TX, McAllen TX and Baton Rouge LA.  Our attorneys represent home health agencies, hospices and other health care professionals around the country in connection with government audits of Medicaid and Medicare claims, licensure matters and transactional projects.  Need assistance?  For a free consultation, please call: 1 (800) 475-1906.

Medicare’s New Face-to-Face Rules Must be Implemented

October 15, 2015 by  
Filed under Home Health & Hospice

Medicare's new face-to-face rules must be implemented and followed.(October 15, 2015): Many agencies have expressed relief that, effective January 1, 2015, the Centers for Medicare and Medicaid Services (CMS) mostly eliminated the narrative component of the face-to-face (F2F) requirement.[1] As most agencies across the country readily understand, the narrative rule was hopelessly vague and not interpreted or applied consistently by the Medicare contractors. Unfortunately, the new version of the face-to-face regulation may not afford agencies the relief from improper claim denials that they have been hoping for.  Medicare’s new face-to-face rules must be properly implemented and documented. As a recap, the elements of the new face-to-face requirement are as follows:

 

  • The encounter must be performed by an “allowed” type of provider (e.g. certifying physician, physician who cared for the patient in an acute / post-acute setting, physician assistant, nurse practitioner, etc.).

  • The encounter must still be performed 90 days before the start of care (SOC) or 30 days after SOC. In a case where the physician orders home health for a new condition that was not apparent during an encounter performed 90 days prior to SOC, a new encounter must be performed to address that condition within 30 days after SOC.

  • The records of the certifying physician or the physician who cared for the patient in an acute or post-acute setting must corroborate the patient’s homebound status and need for intermittent skilled services. The records must also validate that the encounter occurred within the appropriate timeframe, was performed by an “allowed” type of provider, and was related to the primary reason why the patient was admitted to home health.

  • An agency may provide information to the physician for incorporation into his / her medical records that substantiates a patient’s homebound status and skilled need. However, the physician must sign off on this information, incorporate it into his / her medical records, and the information must be consistent with and supported by the entries in the physician’s own records.

  • Physicians are required to provide the supporting documentation of the face-to-face encounter to the home health agency and / or CMS upon request.

As many agencies already understand, however, Medicare’s new face-to-face rules may end up being just as problematic as the older version of the rules. Ultimately, the face-to-face requirement is a significant burden on agencies because it places the validity of the agency’s claim and its reimbursement in the hands of a separate, independent physician. And as most agencies will readily attest, it is oftentimes difficult enough to persuade physicians to timely date and sign orders, must less write (or re-write, as the case may be) medical record entries to confirm the eligibility of a patient for home health services. Although CMS has stated that physicians who demonstrate a pattern of refusing to comply with this new rule may be subject to certain consequences, those penalties – such as denial of the claim submitted by the physician to bill for the face-to-face encounter or the initiation of a physician-specific probe review by a Medicare contractor – are not nearly as severe as those potentially faced by the home health agency, particularly in cases involving payment suspensions or extrapolated overpayments.

In addition, although CMS has provided some examples of face-to-face records that it would considerable acceptable, the new “supporting documentation” component of the rule is just as vague as the narrative requirement. This new standard may be subject to just as much inconsistent interpretation as the old rule.

Experience has shown that the Medicare contractors are willing to take advantage of the vague nature of the face-to-face requirement in order to deny otherwise appropriate claims for home health services. Home health agencies must therefore be proactive in working to achieve effective compliance with the face-to-face rule. Here are some tips for agencies that may be struggling with the implementation of this new rule:

  • Conduct an inservice with your referral sources regarding this new requirement. This will be a great opportunity provide physicians with valuable resources – such as a “cheat sheet” that summarizes the major elements of the rule and examples of correct face-to-face documentation.

  • Conduct periodic re-training with physicians as appropriate. Don’t expect that they will remember all of the different parts of this potentially complicated rule after just one inservice.

  • The face-to-face documentation must be complete before you bill the end of episode (EOE) claim to Medicare. So don’t be afraid to ask physicians to add late entries to their documentation in order to substantiate homebound status and skilled need, if appropriate, before you bill. Remember that any such amendments / corrections must comply with applicable Medicare requirements for late entries. Excessive or inappropriate late entries may subject physicians to increased scrutiny, audits, or investigations.

  • Obtain face-to-face documentation from physicians before you bill every applicable final claim to Medicare. Do not simply hope that the physicians are documenting the face-to-face encounters appropriately. In addition, agencies may find that physician documentation is lost or unavailable if they are subject to a post-payment audit several years after the claims were initially paid.

  • Consider no longer accepting referrals from physicians who refuse to document face-to-face encounters correctly.

These basic steps should help your agency to achieve and maintain ongoing compliance with the new version of the face-to-face regulation. Once again, it is absolutely imperative that you take proactive measures to ensure that your claims will not be subject to denial simply because a referring physician may not have appropriately documented a face-to-face encounter.

Liles Parker attorneys have extensive experience assisting agencies across the country with compliance programs and government audits / investigations. Contact Adam Bird for a free consultation if you have a question or concern about any laws, regulations, or policies regarding home health services.

Bird,Adam-WebAdam Bird is a health law attorney with the firm, Liles Parker, Attorneys & Counselors at Law.  Liles Parker has offices in Washington DC, Houston TX, McAllen TX and Baton Rouge LA.  Our attorneys represent home health agencies, hospices and other health care professionals around the country in connection with government audits of Medicaid and Medicare claims, licensure matters and transactional projects.  Need assistance?  For a free consultation, please call: 1 (800) 475-1906.

 

[1] The narrative rule still applies in cases where a patient is referred to home health for skilled management and evaluation of his / her care plan.

CMS Issues New Instructions to its Contractors Regarding the Scope of Claim Appeals

Doc Prescription(October 15, 2015): In an effort to stem the ever-increasing tide of claim appeals, CMS recently issued new guidance (MLN Matters SE1521) to its Medicare Administrative Contractors (MACs) and Qualified Independent Contractors (QICs) regarding the conduct of requests for redetermination and reconsideration, respectively. Effective 08/01/15, MACs and QICs may no longer review claims denied during postpayment audits and develop their own bases for unfavorable appeal decisions. Instead, the contractors are now required to review claims in light of the denial reason set forth by the entity that performed the initial audit. This rule will not be applicable in cases where claims are denied on a post-payment basis because the providers failed to submit medical records.

MLN Matters SE1521 should work to the benefit of providers who are subject to sloppy Zone Program Integrity Program (ZPIC) audits and reviews by recovery auditors, MACs, and the Supplemental Medical Review Contractor (SMRC). For example, we often encounter cases where ZPIC audit contractors have erroneously denied claims due to a purported lack of documentation or review claims using a patently unreasonable interpretation of a coverage standard. In years past, the MACs and QICs would simply ignore these flawed denial rationales and develop new bases for their unfavorable decisions. Moving forward, this will no longer be a possibility.

It is important to emphasize that Administrative Law Judges (ALJs) who conduct hearings at the third level of the appeals process are not subject to this rules discussed in MLN Matters SE1521. Medicare regulations are clear that ALJs are free to conduct de novo reviews of claims and are not bound by the decisions of prior adjudicators / auditors.

Unfortunately, MLN Matters SE1521 will not afford any relief to providers who are subject to prepayment reviews of their claims. CMS has made clear that MACs and QICs may still develop their own issues and articulate new reasons for denial in appeals of claims denied on a prepayment basis.

Providers whose claims are reviewed or subjected to a SMERC, RAC or ZPIC audit should contact qualified counsel to ensure that they maximize their chances for success at redetermination and reconsideration given this new guidance.

Bird,Adam-WebAdam Bird is a health law attorney with the firm, Liles Parker, Attorneys & Counselors at Law.  Liles Parker has offices in Washington DC, Houston TX, McAllen TX and Baton Rouge LA.  Our attorneys represent health care professionals around the country in connection with government audits of Medicaid and Medicare claims, administrative appeals of denied claims, licensure matters and transactional projects.  Need assistance?  For a free consultation, please call: 1 (800) 475-1906.

CMS Awards Zone 6 ZPIC Contract to SafeGuard Services

Audit(August 15, 2015): The Centers for Medicare and Medicaid Services (CMS) has awarded the contract for Zone Program Integrity Contractor (ZPIC) services for Zone 6 to SafeGuard Services, LLC. Zone 6 encompasses Maryland, Delaware, Washington, D.C., Pennsylvania, New Jersey, New York, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire, and Maine. SafeGuard is the current program safeguard contractor (PSC) in this jurisdiction, and its functions as a ZPIC will be similar to its duties as a PSC. SafeGuard is also the ZPIC for Zone 1 (California, Nevada, and Hawaii) and Zone 7 (Florida).

As the new Zone 6 ZPIC, SafeGuard will be responsible for investigating suspected waste, fraud, and abuse among Medicare providers. ZPICs have the authority to conduct unannounced, onsite inspections of providers’ facilities, perform pre-payment and post-payment reviews of claims, impose payment suspensions, recommend to CMS that a provider’s billing privileges be revoked, and refer providers to law enforcement for investigation. In our experience, SafeGuard is among the most aggressive ZPICs in the country.

If you receive correspondence from SafeGuard Services or any other ZPIC, we strongly recommend that you contact an experienced health care attorney as soon as possible. You should never assume that ZPIC audits or inspections are merely “routine.”

Liles Parker attorneys assist all types of providers across the country with responses to Zone 6 ZPIC investigations, audits, and other administrative actions. If you have questions or concerns about a ZPIC investigation, please contact our office for a free consultation.

Liles Parker has offices in Washington DC, Houston TX, McAllen TX and Baton Rouge LA.  Our attorneys represent health care professionals around the country in connection with ZPIC audits of Medicare claims, licensure matters and transactional projects.  Need assistance?  For a free consultation, please call: 1 (800) 475-1906.