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Why You Need a Healthcare Attorney to Represent You in a Medicare Audit and Appeal

By: Daniel B. Frier and John E. Morrone, Esq.

One: According to Supreme Court Justice Antonin Scalia, “Administrative Law is not for sissies.”

Medicare rules in general, and the appeals process in particular, are codified in a complex body of regulations known as administrative law. Many healthcare providers rely on non-lawyers, typically billing staff, to file their Medicare appeals. This is a tremendous mistake, as the foundation of any successful appeal is a thorough understanding of the procedural and substantive rules that make up the appeal process. There are five levels of appeal, culminating in Federal District court, each with its own requirements and time limits for filing. Filing errors can extinguish future appeal rights, and arguments and evidence not presented at the appropriate stage of the process are inadmissible at later stages.

Two: It is imprudent to rely on the person or entity that made the original billing error to conduct the appeal.

Medicare attempts to recoup monies from providers when billing errors are detected during an audit process. It is an ill-advised approach to allow the billing company that made the original errors to attempt to defend those errors in the appeals process without oversight or assistance. A conflict of interest may exist when a billing company attempts to address a recoupment that is based on billing and coding issues that were created by them. The billing company has a vested interest in shifting the blame for a recoupment to the provider and away from the coding and billing in an effort to avoid liability. Moreover, errors made by the billing company that trigger the recoupment may indicate that the billing company is not knowledgeable or current with the appropriate Medicare regulations. An attorney versed in Medicare law is better suited to represent the provider’s interests and detect oversights or potential negligence by the billing company.

Three: Medicare fraud is a crime and the penalties for abuse can be significant.

Medicare enforcement is on the rise. The federal government has a variety of contractors and task forces that are aggressively pursuing Medicare fraud, waste, and abuse. Many of these Medicare contractors are paid “bounties” based on the Medicare overpayments that they recover. Aggressive investigations by the Office of the Inspector General and the Department of Justice frequently result in the recoupment of overpayments, and may involve treble damages, civil money penalties, exclusion from the Medicare program, and criminal prosecution. Errors committed by billing staff are the responsibility of the provider. Many providers are under the misconception that their reliance on a billing company immunizes them from penalties. No matter who codes and bills, the responsibility remains with the provider. Providers should only rely on a qualified healthcare attorney to represent them in these matters.

Frier Levitt has a team of attorneys experienced in Medicare appeals. We have a proven track record of success at various levels of the Medicare appeals process and we have recovered hundreds of thousands of dollars for our clients. We have attorneys on staff that have managed large professional medical billing operations and are experts in Medicare law.