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Hello, everyone. This is Michael Miscoe with Miscoe Health Law with this week’s installment of ChiroSecure’s Growth Without Risk podcast. And today we’re going to talk about Medicare postpayment audit risk. I’ve addressed this in part from the backside and explaining the benefits of doing Medicare patients for cash.
But for those of you that continue to bill Medicare Just understand, it’s a lot of risk and a lot of work for a little bit of money, but to the extent that you elect to continue doing that let’s talk about what the risks are. I notice, historically, we go through every 3, 4 years Medicare audit contractors, which UPICs, Unified Program Integrity Contractors, or SMRCs, Supplemental Medical Review Contractors, go through a chiropractic audit swing.
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Because there is a historically high 93 percent error rate in payment of claims under the Medicare program. And while I’m sure you all believe that won’t happen to you, think again because the tactics that get used to declare services medically unnecessary have nothing to do with whether it was a real patient.
Whether they had a real problem, whether they got a real service whether that service really helped them or not, those are not relevant facts when they’re evaluating medical necessity, which is why chiropractors tend to get stung pretty hard. Now I’ve noticed that the Office of Inspector General has started Up again with its Comprehensive Error Rate Testing or CERT audits and you may have gotten one of these where essentially you get a record request from the OIG for a single patient in a single day to service.
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And if you are responding to that, you need to make sure that you are providing the initial evaluation plan of care. Hopefully, it complies with the documentation content requirements of the Medicare Benefit Policy Manual, which at Chapter 15, Section 240. 1. 2. 2A, it is a requirement. Detailed laundry list of stuff that has to be in the record.
And with respect to treatment plans, frequency, duration, sure. Specific goals, objective measures to evaluate treatment effectiveness contractors routinely combine those 2nd 2 elements of what. And I’ll emphasize, should be in a treatment plan, they, their analysis indicates that these things must be in a treatment plan as a condition of payment, and as I mentioned, those second two elements, specific goals and objective measures, they combine them and they’re looking for objective measurable goals.
Which no one has. So that is the most common reason. Beyond that, maybe you don’t document subluxation either by part or x ray specifically enough. Potentially, you don’t have diagnoses or exam findings supporting all the regions that you’re performing manipulation. Maybe there’s not a complaint in one of the regions that you’re performing manipulation.
Those are generally deeper analysis issues. That cause denials for reasons of medical necessity and or downcoding but most commonly they find a defect in your documentation and either for your initial visit, so if you don’t send it, you’re going to lose, and then for the visit that they’re asking for it has to meet the subsequent visit content requirements, and those are at 240 point let me see, 240.
1. 2. 2b. And they’re pretty, you need a review of the patient’s complaint, a review of the exam information, any changes to the diagnosis, assessment of progress. Even if it’s unchanged. And then documentation of the treatment. Sometimes they get a little goofy and documentation of the treatment doesn’t necessarily mean that you have to document each segment that was manipulated, but if you’re looking for a documentation tip.
To the extent that you are identifying subluxations at vertebral levels on a visit to visit basis, you’re not required to do that. You do that initially, and then you just tell whether, say, whether it changed or not but in your documentation manipulation performed using X, Y, whatever technique to the areas of noted subluxation that is, is an appropriate way to cover that base, even though you’re not technically document required to document the vertebral levels.
But if you don’t wanna do that document the regions where manipulation was performed, and like I said, connecting the dots. You gotta connect the complaint with a complete HPI the exam, the diagnosis and the treatment. With these CERT audits going on, that tells me that the OIG is soon going to publish a report once they get all their CERT audits done.
And once they publish that report the UPICs what, just understand the OIG’s role. They’re not really out there to audit you. They’re there to evaluate whether the Medicare Administrative Contractors that pay you, you submit your claims to them. The Novotas’s, Noridian’s. Palmetto, GBAs, WPS those folks, First Coast Service Options is another one whether they are, in fact paying claims correctly and doing their due diligence to validate whether these claims should be paid.
So what happens, this report comes down saying there’s this, whatever the error rate is. And then the audit contractors, the SMRCs and the UPICs they gear up and then they do data analysis. So they start evaluating provider profiles and they’ll look at who bills the most visits per diagnosis, visit frequency less than one looking for palliative or supportive maintenance care.
So they’ll do a variety of metrics to identify. Outliers, and then you’ll get a record request and have to submit the records and go through that audit process. It is not uncommon. In fact, I can’t remember the last time I saw a chiropractic audit come down from an SMRC or UPIC where there wasn’t 100 percent denial.
It’s a very common finding and it’s almost impossible. You won’t get that reversed at redetermination or reconsideration. Potentially, you’ll get that reversed it at the administrative law judge level now. There are a couple of, two ways that they audit. They will either do a probe audit meaning they’ll select 20, 40 claims, and that’s all they’re going to look at.
The other option is they do what’s called a statistically valid random sample, where they’re going to pull a larger sampling of your claims, and they will, in that case, in the probe audit, The overpayment amount is just about the services that are in the audit. However, there’s some collateral liability we’ll talk about in a second.
In the statistically valid random sample, they’re going to project the error in the sample to your entire sampling frame. Which is going to be all paid claims within the audit period. And usually they go back, they can go back five years total, but basically they take the date a claim was paid, go to the end of the year and add four.
So that’s what they can reopen for cause. And the cause that they use to reopen the claims is the fact that you’re a, you’re an outlier on one of their data metrics. Now, with the probe audits, oftentimes, when you’re dealing with 40 services, you’re not talking about a lot of money. It’s usually 1, 000, 900 to 1, 200.
And, in, in the old days, you just tell the doctor, just write the check and move on. Now, you can’t do that. And the reason is that there is as part of the ACA the Affordable Care Act aptly misnamed, but the a component of that made what was a voluntary obligation to disclose and refund overpayments mandatory.
So what happens is you have this 1, 200 audit saying your documentation doesn’t have this and your documentation doesn’t have that and therefore, these claims were improperly paid and you have to refund the money. Now, yes, you can appeal that, but what that does is it puts you on notice that there are very likely a whole bunch of other claims that would, sustained similar allegations of error had they been audited.
And with the Voluntary Disclosure and Refund Rule, it’s part of the False Claims Act. What it requires is that it requires you to conduct an investigation internally, identify all claims with similar error, air quote error, and then you’d have to disclose and refund that. So it’s, and you have to go back six years.
So you’re looking at 6 years worth of Medicare payments, if you had 100 percent error rate, most likely you would have to disclose and refund. So the only way that you can avoid that obligation is to do an appeal. And those appeals are quite expensive, so you’re probably looking at somewhere around 30 grand to get through an ALJ hearing.
If there’s a statistical audit, if it’s a non statistical audit, maybe 25, something like that. But it is getting more burdensome and expensive these days. But in any event, if you don’t have audit defense coverage as part of your medical malpractice, there are a number of payers, including ChiroSecure, that offer this coverage.
Make sure that you pay a few extra dollars and get Max out your coverage. ChiroSecure offers a 10, 000 and a 50, 000 and unfortunately, folks that have 10, 000, it’s not going to be enough and you’re going to be paying out of pocket. To avoid that, I’m a big believer in insurance. Buy a bunch of it and but when you need it.
It’s very handy to have there so it offloads that burden from you during what is likely going to be a very stressful process. Real quick about the administrative appeal process. Once you get an initial determination from a payer, you keep that. Okay, and then probably within about 30 days, you’re going to get you’ll get the initial determination from the audit contractor, the UPIC or the SMRC and it may be your Medicare administrative contractor.
It might not be. The once you get that, then 30 days later, your Medicare Administrative Contractor will send you what’s called an MMA 935 Initial Request, and that’s the actual demand for the payment, and that’s when clocks start ticking. In response to that, you have 30 days. To pay the amount demanded, otherwise interest accrues, and I think the current interest rate is at 11 and three quarter percent.
It’s pretty stiff. So if you have the financial ability to pay that off, I always recommend that you do. And if you’re going to go through the appeal process, if you ultimately win, you’ll get that money back. Okay. Now, if you don’t have the financial wherewithal to pay it back, you can do what’s called an extended repayment schedule.
There’ll be instructions for that on your demand letter and that will give you time to pay off, but interest still accrues and all of that. And like I said, if you win in the end, anything that you paid plus any interest that you paid, you get back and you get 3%. Interest on the amounts that you that the government had pending this appeal that, where the overpayment got overturned, assuming that happens.
Now, the first level of appeal, you have 120 days from the date you get the demand letter to submit the first level of appeal. If you submit it within 30 days, It will stop recoupments, assuming that you haven’t paid anything and you haven’t gotten on an ERS. They will start to recoup from future claims on day 31, unless you get your redetermination filed early.
If you file it within 30 days, which usually is very difficult to do because there’s expert work that needs to be done, maybe statistical experts as well as clinical experts. Sometimes we don’t have all the information we have to request it. So it might come to pass. If you want to avoid recoupment, you’ll have to hold claims until that redetermination appeal can get submitted.
They will the. The Medicare Administrative Contractor has 60 days to render a determination. It will be a template letter demonstrating let’s just say less than a rigorous look at the issues raised on appeal. And then once that lands, then another clock starts ticking. So interest is accruing at this point, but then you have 30 days to file a request for reconsideration, which is the second level of appeal.
If you do, it again will stop recoupment. It will not stop the accrual of interest. However, again, you’d be filing that reconsideration early because the law gives you 180 days to put your request for reconsideration together. Probably the most significant step in the appeal process because any information that you’re going to need to get in front of an ALJ under the premise that you’re going to lose your recon, and you will has to be submitted to the QIC.
Okay we need to, maybe update expert reports. Maybe we got some additional information you need to update. The Statistical Expert Report, if there’s an SVRS involved, Statistically Valid Random Sample, but any information, additional documentation, whatever, has to be submitted to the QIC.
Because otherwise, the only way to get it in front of the judge is to show good cause, and the only way that we’re going to pull that off is if the QIC comes up with a different rationale for error, thereby creating the need for us to respond to it. Okay but just understand we need to be very diligent about what we’re submitting at the recon level to make sure that, all the extra, any extra documentation, addendums, attestations, signature, all that stuff is handled.
With additional information at the recon level. Now, I mentioned you’re likely to lose the recon. You’re going to lose the redetermination reconsideration level. I have had maybe one case in the last 16 years where I got a movement at the recon level. Never happened in a Chiro case. Just plan on losing those levels.
We have to do them because that’s just part of the process. The third step which is our best chance of having some success is the administrative law judge appeal. Once the reconsideration decision comes down recoupments will start. Even if we file a request for administrative law judge hearing that does not stop recoupment.
After the recon level. Recoupments are going to happen if you haven’t paid the amount demanded back. The ALJ level, there’s a request, you file a brief, they schedule a hearing it’s over the phone. You don’t need to dress up. It’s audio only. And you, we make the case to the Administrative Law Judge.
Now, you have to understand, statistically, overall, all Medicare appeals, medical, Chiro, every specialty on the planet, the win rate is 25%. It’s a pretty steep hill to climb. Judges are as different as people can be different. They’re all lawyers and you would think that they would all apply the law in the same way, but they don’t.
You might win in one case in front of a different judge, you’d be a loser or vice versa. The, there are judges all over the country. The country during the couple of years ago where they had a rather significant backlog, case backlog of 800, some thousand cases, they opened up a whole bunch of new ALJ offices OMHA, the Office of Medicare Hearings and Appeals brought in a bunch of new judges and occasionally you get a judge is willing to sit down and listen.
Otherwise, my, maybe I’m being a little cynical and I apologize to the great ALJs out there that are doing a good job, but it seems like in some cases they’re just moving paper. Usually the judges show up prepared. They have questions, and, we do a factual, legal, and substantive presentation through the judges.
The doc, experts, to demonstrate that the Medicare coverage requirements were satisfied, and then we wait for a decision. After the ALJ level, you do have, if you lose, you have a right to request a a hearing before the Medicare Appeals Council. That redetermination, reconsideration is pretty much a waste of time, unless there’s a manifest error of law it would have to be huge.
And even if it was, often what’ll happen is it’ll get remanded back to the ALJ, giving the ALJ the opportunity to write a better opinion. But the Medicare Appeals Council is not an area of relief, and then the fifth level is to get out into federal district court. To go through all five levels, you’re talking about massive amounts of money, and oftentimes, it’s not, especially in a probe audit it’s not the money.
that they’re asking for back that we’re concerned about or that we’re fighting about. It’s the last six years of claims that you would otherwise have to disclose and refund if we’re unsuccessful. Look at your audit defense coverage with your medical malpractice carrier validate that you have it, find out what your policy limits are, see if you can get those limits raised some carriers other carriers that I work with they just have one limit.
And it’s usually pretty sufficient, but make that call, find out because there’s a Medicare audit swing coming in and you definitely don’t want to get caught flat footed without coverage and have to defend six years worth of your Medicare reimbursements. So hopefully that was informative, if not horrifying, and I apologize for that, but.
If you want to know why I’m such a strong advocate for doing Medicare patients and many commercial insurance carrier patients cash that’s the reason. When you start to account for that kind of risk and those kind of expenses in your profit model, looking at a five year cycle it really doesn’t make sense.
Anyway hope that’s helpful and we’ll see you next time.
MUSIC
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