Washington & West Resources

Written by Linda Fotheringill, Esq.

Providers have been scrambling to get their so-called RAC Tracking System in place. But did you know that Medicare Contractors are mandated by CMS to have a Provider Tracking System (PTS)?

The PTS is to assist with CMS’s overall goal of requiring Medicare contractors to analyze provider compliance with Medicare coverage and coding rules and to take appropriate corrective action when providers are found to be “non-compliant”. This sounds generally reasonable. But when contemplating the Medicare appeal process, it is of interest and concern that the provider information within the PTS “should be shared” with the Administrative Law Judge (ALJ) when the provider appeals a medical review determination. CMS’s stated reason for the requirement to “share” the information in the PTS with the ALJ is “to demonstrate corrective actions have been taken by the contractor”. This is quite concerning because the information in the PTS might be unfairly prejudicial to the provider, and could cause the ALJ to decide a case unfavorably due to information unrelated to the particular case being appealed. Therefore, Providers participating in an Administrative Law Judge Hearing on a RAC or MAC denial should obtain copies of any PTS information provided to the ALJ. Once this information is obtained, it should be carefully reviewed to ensure accuracy and relevance to the case at issue.

So what kind of information about your Hospital will be tracked?

CMS requires the PTS to be used to identify all individual providers and to track all contacts made as a result of actions to correct identified problems such as eligibility issues, medical necessity issues, and repeated “billing abusers” that frequently change the way they code their bills to their financial advantage.

The contacts tracked will include Medical Review notifications, telephone calls directly related to probe or complex reviews, and referrals to Provider Outreach & Education (POE).

Contractors are also required to coordinate this information with the Program Safeguard Contractor Benefit Integrity Unit (PSC BI) to assure contacts are not in conflict with benefit integrity related activities. The PTS should contain the date a provider is put on a provider specific edit. Of note is the fact that the contractor is required to reassess all providers on Medical Review quarterly to determine whether the behavior has changed. The contractor will note the results of the quarterly assessment in the PTS.

A variety of interventions could be implemented by contractors to correct perceived inappropriate behaviors. Contractors should use feedback and/or education as part of their intervention, and should make sure that administrative actions are commensurate with the seriousness of the problem identified, after a limited probe is done to understand the nature and extent of the problem. CMS warns that serious problems will be dealt with using the most substantial administrative actions available, such as 100 percent prepayment review, payment suspension, and use of statistical sampling for overpayment estimation of claims. “Small and isolated” problems should be dealt with through provider notification or feedback and reevaluation after notification. And as always, any evidence of fraud could result in referral to the PSC BI unit for possible action.

The message for Providers is to pay close attention to any and all “contact” made by any CMS contractor whether it is notification, outreach, feedback, or a “limited probe”. You do not want to be taken by surprise by the cumulative effect of the contacts – Big Brother is watching.

About the Author

Linda Fotheringill, Esq., is a founding member of Washington West, LLC, and is a nationally recognized expert on denial and appeals management. Ms. Fotheringill successfully assists hospitals across the country, overturning “hopeless” denials and generating millions of dollars in otherwise lost revenue.

Contact the Author:  l.fotheringill@washingtonwest.com

Written by Linda Fotheringill, Esq.

Many providers are planning to appeal all claims wrongfully denied by the RACs, and are also attempting to calculate the financial impact of potential RAC denials within their facility. Therefore, the timeframe within which one can expect a final decision is critical to forecasting.

Unfortunately, due to the variable nature of the 5 Level Medicare Appeals Process, it is not possible to nail down a specific timeframe within which a final decision can be expected. For instance, the reviewing entities (i.e., Fiscal Intermediaries/MACs, Qualified Independent Contractors, Administrative Law Judges, and the DAB/Medicare Appeals Council[1]) are given 60 to 90 day timeframes to reach their decisions. However, the entities cannot always meet the time goals and the Provider’s only remedy is to advance to the next level which may not be advantageous. Furthermore, Providers may wish to file all appeals promptly, but may not be able to do so due to sheer volume or staffing issues. Therefore, each claim could easily take from 12 to 24 months to go through to a decision at Level 5. (The American Hospital Association provides a beautiful flow chart of the Medicare Appeals Process on their website.)

If there is any silver lining to this situation, it may be that most claims will more than likely be resolved by Level 3 (if not before), which is the Administrative Law Judge Hearing. In my opinion, there will be relatively few claims that are appropriate to appeal to Level 4 and Level 5, which will shorten the timeframe for a final determination.

Why do I say this?

First, this has been the case historically in the RAC Demonstration. According to the January 2009 “Update to the Evaluation of the 3 Year Demonstration”, out of 274,952 Part A claims with overpayment determinations and 42,794 appeals, only 197 claims went to Level 4, and there was only a 32.8% favorable determination rate for providers at all appeal levels combined. (Statistics were not provided as to whether any claims were filed in U.S. District Court – Level 5.)

Another factor to keep in mind is that in order to go to Level 4, the Medicare Appeals Council Review, your request must be granted by the Medicare Appeals Council (“AC”). In other words, the AC can take a number of actions, including denying or dismissing your request for review. In general, the AC will only review a case if:

(1) There appears to be an abuse of discretion by the administrative law judge;

(2) There is an error of law;

(3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence; or

(4) There is a broad policy or procedural issue that may affect the general public interest.

Finally, it has been my personal experience that most Administrative Law Judges do their best to carefully consider the evidence presented in order to come to a thoughtful conclusion about the case. The ALJ’s decision is provided in a detailed written format and rarely contains opinions that rise to the level of an “abuse of discretion”, “an error of law”, or a conclusion “not supported by substantial evidence”.

What Does This Mean? It means that many, if not most, of your RAC denials which involve determinations as to whether medical necessity criteria were met may not meet the AC standard for review of the ALJ decision. (Assuming, of course, that your ALJ carefully considered the evidence and appropriately applied the law.)

In short, this means that Level 3 will more than likely conclude the appeal process for most of your claims. Hopefully, you will receive a Favorable Determination from the ALJ, and you can begin the process of recouping your lost revenue

[1]

The Departmental Appeals Board (DAB) is a Board established in the Office of the Secretary of the U.S. Department of Health and Human Services (DHHS) whose members act in panels to provide impartial review of disputed decisions made by operating components of the Department or by its ALJs. The Medicare Appeals Council is a division of the DAB.

About the Author

Linda Fotheringill, Esq., is a founding member of Washington West, LLC, and is a nationally recognized expert on denial and appeals management. Ms. Fotheringill successfully assists hospitals across the country, overturning “hopeless” denials and generating millions of dollars in otherwise lost revenue.

Contact the Author:  l.fotheringill@washingtonwest.com