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As today’s healthcare world becomes even more complex due to increased regulations, it’s clear that more and more healthcare providers are under tremendous scrutiny when it comes to Medicare and Medicaid payments. Because of this, the Centers for Medicare and Medicaid Services, or CMS, has added a number of additional programs designed to take a closer look at submitted claims, which has naturally resulted in more and more audits being conducted. For healthcare providers who find themselves on the receiving end of a Medicare or Medicaid audit, there are several key points to keep in mind.
It’s crucial you take medicare audits seriously. If you don’t, you could be facing a significant overpayment assessment. Most are conducted by a medicare carrier, and fall into one of two categories. They are either reviewing claims before medicare pays the physician, or they are an analysis of claims after payment is made. Prepayment audits – the most common – are random sweeps where carriers will look at just a few claims from each physician.
Focused reviews are the simplest form of post-payment audits. The carrier is trying to learn more about the physician’s coding practices, and trying to educate the physician as well. In these audits, the doctor may be asked to make a refund for overpayment. In some cases, the doctor will be required to submit additional documentation with future claims.
In comprehensive medicare audits, the carrier is going over a small sample of claims, and uses the results to calculate a projected overpayment over a period of months and years. This analysis isn’t typically statistically valid – which is why the carrier will the physician 3 choices as a consequence of the medicare audit:
In many cases, the carrier’s assessments are wrong – which is why you should hire an attorney when facing medicare audits and fight back. Typically, if a carrier is requesting numerous patient visit charts (5 or more) then that means the carrier is investigating a pattern of miscoding. If the carrier finds overpayment instances, you may face fines and perhaps criminal/civil penalties.
If you receive a letter from a medicare carrier requesting charts – we recommend you contact our law office. You should fax the letter to us immediately. We’ll conduct an investigation into your charts, and do it all before you submit them to the carrier. If the experts we hire can’t complete the review before the deadline, we’ll ask for an extension or simply have the expert conduct the review at the same time the carrier does. We have all work done under the attorney work product privilege, so the results are confidential.
Before charts are submitted, you should review them. You should include as much information as possible, for the purposes of the medicare audit, that support your claim. For example, if the history in the charts refers to other notes – then include those earlier notes. If you’re missing any documentation that’s supporting your claims, then add labeled / dated addendums, or include explanations in the cover letters. If the code for the claim matches the work done, then leave it. Don’t downcode it.
If during the course of the investigation you are visited by an agent from the FBI, HHS Office of Inspector General, or DEA, then this isn’t a good sign. Such a direct contact means you’re facing either civil or criminal charges. You should never speak to the agent – and should instead contact your medicare audit attorney who can help you.
The first impression left on an investigator is crucial. It can mean the difference between an open vs closed investigation, and even criminal charges. It’s crucial you work with your lawyer so you are prepared and avoid any pitfalls. You must prepare your staff for the possibility that an investigator may approach them outside of the work place environment. You aren’t allowed to forbid them from speaking to the agent. That’s considered obstruction of justice – you can however inform them of their rights. Staff members have a right not to speak to the investigator. If they choose to do so, they have the right to an attorney. You should provide them with an attorney. The dangers of talking to an agent without an attorney can be catastrophic. For example, saying statements like “my lawyer told me XYZ,” can invalidate the attorney-client privilege, and give the investigator permission to go through your attorney’s file on you. You should also speak to an attorney before discussing your medicare audit case with the FBI, OIG, or any other agency.
Medicare will expect to be repaid any overpayment as soon as possible after the medicare audit concludes. If medicare doesn’t get the full payment in 40 days, it’ll recoup the full amount on day 41. That means the overpayment will be deducted from current payments due to you, or from future claims you submit. There are many ways a medicare attorney can help at this stage. We can help file a rebuttal to your MAC within 15 days of the initial demand letter, and we can file an appeal for the first to level of appeals within the timeframe. Healthcare providers have to file the first level appeal – which is known as redetermination level – within 30 days of the initial demand letter in order to prevent recoupment through the time that a redetermination decision is issued. If a redetermination decision is found to be unfavorable, the provider then has to file a second level appeal – which is called the reconsideration level – within 60 days of the redetermination decision being made. If it’s found that the reconsideration decision is also unfavorable, then medicare will typically initiate recoupment 30 days after the reconsideration decision was made. If the reconsideration is somewhat favorable, then the overpayment sum will be recalculated, and the recoupment will begin 30 days after the recalculated amount is demanded.
It’s crucial you understand that even when recoupment is stalled – interest is accruing as of the initial demand letter, and is assessed on a recurring 30 day period. The interest rate is very high at 10.5% as of Jan 2015. Even if you are successful at postponing recruitment, you still have to win the first two levels of medicare appeals process. Recoupment will begin if the provider is unable to repay the overpayment, and the provider will likely wait many years before being able to have an Administrative Law Judge hear their case. Interest accruing and recoupment delay measures should be considered a short term strategy – which allows you to do financial and strategic planning. If you can repay some, or all, of the overpayment on demand – you can lower or prevent the interest penalty – and be in control of the process.
Extended Repayment Schedules
You can setup an extended repayment schedule, at any time, once a demand is made after the medicare audits done. If an unfavorable reconsideration decision was issued, and the provider hasn’t repaid the overpayment or established an ERS – then the provider has two options left: allow medicare to recoup or to request an ERS. As long as you continue to appeal, Medicare can’t refer your debt to the Department of Treasury. Interest will continue to accrue during the recoupment period, which can be devastating – especially if your revenue comes heavily from medicare. If an ERS is put into place, then interest accrual stops. Medicare will also take into consideration any financial hardships or extreme hardships on healthcare providers as a result of repayment – and can extend the ERS to as much as 60 months. For providers who aren’t sole proprietors, the ERS application process is long and tedious. You’ll need to have a long list of documents to support financial hardship, including balance sheets, cash flow statements, investments, notes, and other mortgages. If you can’t establish genuine hardship, the ERS will be rejected or modified – to what medicare believes is fair and appropriate. Any payments you make under the ERDS do not accrue in your interest. If you are successful at either reducing or eliminating the overpayment once you appeal – the interest doesn’t accrue in favor of medicare either.
Paying the Overpayment On Demand
If you can repay some, or all, of the overpayment upon demand – then you have more control over the repayment process during the appeals process. Even if you disagree with the overpayment assessment, you have more financial control. You can avoid, or limit, recoupment and accrual of interest. You will get your money back, if you win the appeal. If the provider doesn’t win, the medicare keeps the money.
What’s a notice of overpayment
For any healthcare provider, the one thing they do not want to receive is a notice of overpayment from CMS. However, as health care reform and other increased regulations have added an extra layer to the already strained healthcare system, these notices are becoming more commonplace among the healthcare community. As a result, the demand for the services of attorneys skilled in Medicare audits has grown substantially within the past decade. Even though a healthcare provider is not required to have legal representation during an audit, going without it could prove very costly. Due to the appeals process related to an audit being very confusing and time-consuming to those who are unfamiliar with it, it’s imperative to have an attorney who has experience in this area.
What’s a recovery audit contractor
For healthcare providers who find themselves being contacted by a recovery audit contractor, also known as an RAC, the situation can become difficult in a hurry. In most cases, an RAC is compensated on a contingency-fee basis, which can lead to an increased number of audits due to supposed overpayments. In fact, research has shown an RAC will almost always uncover far more overpayments than underpayments. Along with scrutinizing standard Medicare claims, an RAC also examines Medicare Advantage plans, Medicare Prescription Drug plans, and Medicaid claims. Our medicare audits attorneys can help with any issues that arise from a RAC investigation.
What’s comprehensive error rates? contractor
In order to determine why overpayments happen, the CMS has developed a testing program known as the Comprehensive Error Rate Testing program. Known as CERT, it aims to discover the major reasons for overpayment and how to avoid future errors. While CERT works on more than 120,000 claims each year, healthcare providers who find themselves being audited are subject to increased scrutiny. For providers who find themselves receiving notifications on a regular basis, chances are they will need the services of an experienced Medicaid and Medicare audits attorney in order to rectify the situation.
Can medicare audits decisions be appealed?
During the course of their careers, most healthcare providers at some point find themselves appealing a decision made by the CMS. When this is the case, the services of a knowledgeable Medicare audits attorney will be needed in order to navigate the complexities of the case. Whether it’s in the form of a demand letter or an indication given on an Explanation of Benefits, or EOB, these appeals can become extremely complex. When this happens, a variety of options are available. One of the most common is having a hearing before an Administrative Law judge, which can be conducted in person, over the telephone, or even through videoconferencing. These hearings, due to their importance, almost always require a provider to have proper legal representation. By doing so, they can be assured an attorney has been able to examine all available evidence prior to the hearing.
What other contractors might look into medicaid overpayments?
Along with these parts of the appeals process, there are several other variations providers may face from time to time. One of these involves Medicaid Integrity Contractors, which were created in 2005 to conduct reviews and audits. Due to the Deficit Reduction Act of 2005, the federal government has since greatly expanded its focus on Medicaid payments and the possible fraud associated with them. While this has led to some healthcare providers reducing or eliminating their Medicaid patient caseload, it has also led to an increase in the number of cases being examined for potential fraud.
For those who find themselves facing a Medicare audit, having the services of an attorney who is experienced in these legal matters is imperative. Whether it’s a hearing with an Administrative Law judge or a meeting with a Recovery Audit Contractor, understanding this process is vital for success.
Does medicaid do audits?
Medicaid fraud has become an alarming issue in the United States, and medicare audits and medicaid audits are common. These fraudulent activities add billions of dollars to the State expenditures budget every year. Over the years, Medicaid has identified certain billing procedures that may indicate cases of fraud. If a health care provider engages in these practices, Medicare and Medicaid can flag them and make inquiries into their actions. Few doctors commit fraud deliberately. However, many of the mistakes arise from the complexity that surrounds hospital billing systems. Small issues can easily be detected in the audits, and these can have dire consequences on the health care providers.Understanding Medicare and Medicaid audits
If Medicaid suspects you of fraudulent activities or an improper billing system, they are obligated to make an inquiry. The inquiry begins by requesting certain documentation. The audit begins when something in your billing or coding systems is flagged. This may be a single entry or a pattern in your coding system. Many of the flagged coding systems do not necessarily indicate fraud. Once Medicaid looks into the documents and records you have submitted, they send a letter announcing an audit. Once the documents received have been submitted, the Medicaid auditors will determine whether further investigation is necessary.
Once the investigation is over, you may receive a clearance letter to satisfy that no fraudulent activities were detected. If fraudulent undertakings are discovered, you may be subject to fines, repayments or even possible jail time. With the help of an experienced attorney, you can avoid these hefty fines and possible license revocation.
It is crucial for healthcare providers to note that Medicaid officials and Recovery Audit Contractors (RACs) receive remuneration on a contingency basis. This means that they are highly driven by financial gain. This makes your practice a target. RACs are tasked with auditing claims in medical clinics, nursing homes, hospice, physical therapy companies, long-term care providers and home health agencies. If you have received an audit letter, you need to bear in mind that RACs are private firms hired by the government to review and investigate healthcare givers. This means that they are very aggressive in their efforts to recoup money for the government because their pay depends on it. It is, therefore, ill-advised not to seek the legal expertise of a medicare audit lawyer.
A medicare audit lawyer will first help you establish the reason for an audit. There are instances when the motive behind the audit is not very clear. The audit lawyer will also advise you on the documents to present to the auditors. In some cases, it is wise to present only what the Medicaid auditors request for, while in others supporting documentation is necessary. The audit lawyers have worked with RACs before and can help you sidestep mistakes that could cost you your practice. While the lawyer handles the audit issues, you can continue with your business without interruptions. It gives you much needed peace of mind to know that an expert is working on your case.
What are the types of medicare audits
There are many different types of medicare audits. The various different contractors responsible for conducting the audits, use various methods to do the audit – but have to abide by medicare’s guidelines when it comes to medical review, denials, appeals process, and how they do payment recovery. This is set by the Center for Medicare and Medicaid Services. Medicare Administrative Contractors and Recovery Audit Contractors work with healthcare providers in order to determine if improper payments were made – by reviewing and analyzing claims made. In the process of the medicare audit, the contractors go through medical documentation which is obtained from the provider. In some cases, the contractor will use a statistical sampling of the patient’s file in order to generate an error rate. Once the error rate is established, the medicare contractor will determine if overpayment has been made – and will request it in the form of reimbursement.
After the medicare audits done, contractors will request the provider to be placed on either a prepayment, or post-payment review. Prepayment review is a standard medical review, where a conclusion will be made related to the claim being submitted. Post-payment review results in a revised determination of the medical claims submitted. The main difference in the standards, is whether a provider will be initially compensated for the claim he/she submits. Healthcare provider claims which are flagged in the prepayment review, results in funds being withheld from the healthcare provider. If there are post-payment claims, then those flagged will result in a request for repayment at a later time after the initial payment is made.
Another type of medicare audit done, is by the Zone Program Integrity Contractors (ZPICS). The ZPIC will identify, and stop, potential fraud – and refer those instances of fraud to the Department of Health and Human Services, the Office of Inspector General, and the Office of Investigations. This type of audit creates a huge risk, for a provider. Administrative audits don’t have a potential for criminal charges, but have to be handled swiftly and you must take corrective actions – in order to ensure that the healthcare provider is in compliance before ZPIC is involved.
What are OIG Subpoenas
Many potential prosecutions begin with a subpoena from the OIG. Anyone who gets an OIG subpoena, should be aware they are now a part of a federal investigation. The subpoena will not say whether the investigation is civil, or criminal. Having said that, if you work with a medicare audits attorney – he/she can tell you what the true intention of the subpoena is. There are a few mistakes when responding to OIG subpoena’s that should be avoided.
First, many providers don’t take subpoena’s seriously, and/or delay responding to them – or only respond partially, which results in a full scale federal investigation. Second, subpoenaed businesses can sometimes try to fight them in order to avoid giving over evidence. In this case, the government will enforce it with the help of a federal court. Third, a business can surrender and give up too much information, including incriminating information – which becomes the basis for the government to open up a criminal investigation. These are very fatal mistakes which are often made.
Grand Jury Subpoenas in Medicaid Audits
The purpose of a grand jury is to determine whether probable cause exists to lead a jury to believe a person committed the crime. If the jurors are convinced that probable cause for the crime exists, then the grand jury will proceed to indict the defendant. If no probable cause exists, then grand jury will issue a no-bill and release the healthcare provider with no prosecution. In the case of an indictment, the case becomes a formal criminal case. In order to get to this point, the government will issue a subpoena. It will direct you to appear, and testify, at a time and place, or it will ask you to produce certain documents of interest to the government. Grand jury subpoenas are very powerful tools, and government lawyers have the authority to request documents which may establish the commission of a crime.
What are Medicare Administrative Contractors
In addition to RACs, providers are also targets of audits from MACs. The CMS is currently transitioning, and consolidating, intermediaries and carriers into MACs. The MACs will handle both the processing and administration of both part A and part B medical claims that are made. One of the CMS’s goal is to simplify provider services by creating a single MAC process for both part A and B claims. In addition, the CMS expects a competitive bidding process between MAC’s in order to deliver the best possible service. CMS awarded a total of 19 contracts for MACS, and they have to compete for it again every 5 years.
MAC’s participate in the medical review program, which is focused on reducing claim error rates by focusing on billing errors. They address coverage and coding vulnerabilities. MAC’s identify potential problems via data analysis. They conduct audits on providers who seem to be prone to errors. Contractors will review submitted claims in order to determine the proper payment amounts, and will then adjust or deny payments if the services were not found to be medically reasonable or necessary. If the % of claims which have errors is high, then contractors be subject to additional payment, and other issues – like post-payment reviews, pre-payment reviews, or suspension of your payments.
Comprehensive Error Rate Testing Programs
These are designed to determine the underlying cause for claim errors, and are used to develop programs which improve compliance with payment, claims processing, and provider billing requirements. CMS works with Livanta in order to act as CERT documentation contractor and AdvanceMed to serve as the CERT review contractor. The CERT program was used to establish an error rate for all provider claims.
The CERT contractor will review approximately 120,000 claims processed by affiliate contractors each year. CERT Contractors randomly selects a sample of Medicare Fee For Service claims and will request medical records and info from providers who submitted the claim. When reviewing the sample claims and the medical records, the CERT contractor follows Medicare coverage decisions, NCDs, LCDS, and contractor articles. If there are no written policies available – then the CERT medical review specialist will make a determination based on clinical expertise.
Results of CERT reviews are published annually – and then the main focus of CERT is obtain a general error rate – rather than identifying underpayments or overpayments of an entity.
What are Quality Improvement Organizations
QIO’s, are charged with reviewing medical services that are provided by medicare beneficiaries. QIO’s mission is to improve effectiveness of medical care. QIO’s improve the overall quality of care for beneficiaries, and protect the integrity of Medicare by ensuring medicare pays for services reasonable and necessary. QIO’s are a critical part of the “medicare audit,” big picture.