One: Administrative Law is extremely complex and difficult to navigate
Medicare rules in general, and the appeals process in particular, are codified in a complex body of regulations known as administrative law. However, many healthcare providers rely on non-lawyers, typically billing professionals, to file their Medicare appeals. This approach to tackling appeals often creates substantial risks for many providers, 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 a Medicare appeal: (1) redetermination by a CMS contractor, (2) reconsideration by a qualified independent contractor, (3) hearing before an administrative law judge, (4) review by the appeals council, and finally (5) judicial review in federal district court. Each level of the appeal process has its own requirements and time limits for filing. Failure to satisfy these requirements, such as missing an appropriate deadline, can extinguish future appeal rights. Furthermore, presenting inadequate arguments or insufficient evidence at various stages of the process may prevent the introduction of evidence at later stages of the appeal process. An experienced healthcare attorney is best suited to help practitioners navigate this area of administrative law in order to avoid irreparable errors.
Two: It is imprudent to rely on the person or entity that made the original billing error to conduct the appeal
During a Medicare audit, contractors will attempt to recover funds paid by federal healthcare programs to providers that resulted from billing errors. 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 by a qualified attorney. A billing company that is responsible for a Medicare error resulting in a payment recoupment has a direct conflict of interest in addressing the appeal process. The company has a vested interest in shifting the blame for recoupment to the provider in an effort to avoid liability. Moreover, the existence of these billing errors that subject the provider’s payment to recoupment may indicate that the billing company is not knowledgeable or currently competent to implement practices in compliance with Medicare regulations. An attorney versed in Medicare regulations is better suited to represent the provider’s interests and act as a barrier of protection to 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. While fiscal year 2016 numbers have not yet been released, the government’s efforts to combat health care fraud resulted in a recovery of $2.4 billion in fiscal year 2015 and $24.9 billion since 2009. Some Medicare contractors are paid “bounties” based on the overpayments that they recover, incentivizing a strict culture of review.
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, and criminal prosecution. However, a provider should also be concerned with the potential for exclusion from the Medicare program. Exclusions may be permissive or mandatory—the distinction between the forms of exclusion is related to the particular misconduct on the part on the provider. Mandatory exclusion has a minimum period of five years and may result in permanent exclusion in certain circumstances. Exclusion can be crippling for solo practitioners as well as for larger medical groups. It is therefore critical to seek the advice of a knowledgeable attorney to aid in the Medicare appeals process.
What many providers fail to recognize is that errors committed by billing professionals, whether employees of the practice or a third-party, are the responsibility of the provider. There is a misconception that reliance on a third-party billing company immunizes a provider from penalties. However, no matter who is tasked with coding and submitting claims, the responsibility for the claim remains with the provider. It is in the provider’s best interest to rely on a qualified healthcare attorney to represent them in these matters.
Frier Levitt has a team of attorneys experienced in Medicare appeals with a proven track record of success at various levels of the appeals process. Our attorneys have managed large professional medical billing operations and are experienced in the analysis of Medicare regulations. Frier Levitt has been successful in reversing $2 million of overpayment claims for a large cardiology group at the redetermination stage of a Medicare appeal. Recently, Frier Levitt attorneys successfully fought in Federal court to overturn a Medicare termination of a laboratory as a result of an audit allegation based on billing discrepancies. Contact us today to speak to an attorney.
These examples represent only some of our firms many successful attempts to guide our clients through the appeals process. Past results are no guaranty of future success.
