Medicare Audit & Appeals

Medicare Audit and Appeals Lawyer in Dallas, TX

Based in Dallas, TX, the Law Office of Johnathan Fish specializes in healthcare law, offering both regional and national legal services to providers. Our expertise covers issues related to the Centers for Medicare and Medicaid Services (CMS) and the Medicare program. We represent a wide range of licensed healthcare professionals, including physicians, chiropractors, nurse practitioners, physician assistants, physical therapists, speech-language pathologists, dentists, and DMEPOS suppliers. Our firm offers crucial support in situations involving Medicare audits that result in overpayment determinations, exclusions from the Medicare program, or revocation of billing privileges.

Medicare Program Integrity Background

While many associate the Health Insurance Portability and Accountability Act (HIPAA) with complex medical privacy regulations, its enactment in 1996 also introduced the Medicare Integrity Program (MIP). This initiative aimed to curtail waste, fraud, and abuse within the Medicare system. In 2003, the Medicare Modernization Act (MMA) further advanced these efforts by establishing Medicare Administrative Contractors (MACs). MACs are tasked with ensuring program integrity, primarily through conducting Medicare audits. Their focus today is on verifying that healthcare providers submitting claims adhere to Medicare’s payment rules, laws, and guidelines. Instances of non-compliance include:

• Documentation does not support medical necessity.
• Encounter notes fail to support all eligibility elements.
• Initial or re-certifications are missing or incomplete.
• The certifying physician’s signature is absent from the record.
• There is a lack of appropriate supervision.
• Services provided are not properly documented.
• Billing occurs for services not rendered.
• Controlled substances are inappropriately prescribed to one or more patients.

In previous years, MACs randomly selected claims for a Medicare audit. Following a successful pilot program in 2016, which expanded in 2017, MACs have embraced a new strategy known as Targeted Probe and Educate (TPE). This approach focuses on auditing claims for items or services that pose significant financial risks to the Medicare trust fund or have a high national error rate.

UPIC).Targeted Probe and Educate (TPE)

When a healthcare provider or supplier becomes the focus of a Medicare audit, the Medicare Administrative Contractor (MAC) will issue a Notice of Review. This notice outlines the reason for the audit and requests medical records for 20-40 claims, known as an Additional Documentation Request (ADR). Once the healthcare provider submits the required documentation, the MAC has 30 days to review it and decide on payment. If the MAC finds the provider non-compliant, a letter detailing the issues and concerns will be sent, and the provider must engage in one-on-one education and training with a MAC staff member.

After 45 days, the MAC may conduct a second review of another set of 20-40 claims using the same Notice of Review and ADR process. This is to assess whether the provider has enhanced documentation or taken corrective measures following the initial review. This cycle can continue for up to three rounds if needed.

If, after the third round, the provider or supplier remains non-compliant, further action may be taken. This could involve prepayment review, suspension of Medicare payments, revocation of billing privileges, extrapolation of overpayment, and referral to a Unified Program Integrity Contractor.

Unified Program Integrity Contractor (UPIC)

The Unified Program Integrity Contractor (UPIC) functions as a type of Medicare Administrative Contractor (MAC). UPICs emerged from the merger of Zone Program Integrity Contractors (ZPICs), Program Safeguard Contractors (PSCs), and Medicaid Integrity Contractors (MICs). Each UPIC oversees a specific region (jurisdiction) in the U.S. Presently, the entire U.S. is covered by five UPICs:

• Health Integrity, LLC
• AdvanceMed Corporation
• IntegriGuard, LLC, operating as HMS Federal
• Noridian Healthcare Solutions, LLC
• Safeguard Services, LLC

UPICs conduct both prepayment and postpayment reviews. During postpayment reviews, UPICs begin by “reopening” previously settled claims and requesting related medical records, contracts, and other documentation from providers or suppliers. Once the documentation is received, UPICs, with the help of physicians or licensed nurses, evaluate the information to ensure compliance with Medicare reimbursement regulations. These regulations are outlined in several key sources:

• The Social Security Act
• U.S. Code of Federal Regulations
• CMS National Coverage Determinations (NCDs)
• CMS Local Coverage Determinations (LCDs)
• CMS Internet-Only Manuals (IOMs)
• Recognized coding standards, including CPT, HCPCS, and ICD

The UPIC will send an audit determination to the healthcare provider, containing the following details:

• Provider identification by name and provider number
• An overpayment summary outlining the claims selected for medical review
• Notable findings, including issues such as documentation not supporting medical necessity
• A summary of review findings with references used for the determination
• Overpayment calculation
• Referral to CMS for collection

There are two types of overpayments: identified overpayments, which are claims that have been directly reviewed, and extrapolated overpayments, which involve sampling reviewed claims to estimate errors across a broader range of similar claims over a specific period. Extrapolation results in a larger overpayment determination. When the matter is referred to CMS for collection, the provider will receive a follow-up letter a few weeks later from another MAC, responsible for administrative services for CMS and the Medicare program. These MACs include:

• Novitas Solutions, Inc.
• Palmetto GBA
• National Government Services (NGS)
• First Coast Service Options (FCSO)
• Wisconsin Physician Services (WPS)
• Celerian Group Company (CGS)
• Noridian
• NHIC

The collection letter will confirm the overpayment determination, summarize the reasons for the overpayment, and request repayment. Payment options include recoupment, full payment, or an extended payment schedule approved by CMS.

Beyond demanding repayment, CMS may take additional actions against providers submitting improper claims, such as revoking billing privileges, excluding them from the Medicare program, conducting follow-up audits, or referring the case to the state licensure board. The collection letter will also inform the healthcare provider or supplier of their appeal rights.

Medicare Appeals Process

Healthcare providers and suppliers have the option to appeal a negative outcome from a TPE or UPIC audit. Successfully overturning these denials in the Medicare appeal process allows providers to retain payments for the contested claims. The appeal process consists of five levels.

1. Redetermination: Healthcare providers can file a Redetermination appeal with the original CMS contractor within 120 days of receiving the initial determination letter. The contractor then has 60 days to review the appeal and provide the results to the provider. Providers may submit new evidence during this stage.
2. Reconsideration: Should the Redetermination appeal be unsuccessful, the provider can request a Reconsideration appeal with a Qualified Independent Contractor (QIC) within 180 days of the unfavorable Redetermination decision. This independent review is crucial, as it is the final stage allowing the submission of new evidence. The QIC must issue its decision within 60 days. For denials based on medical necessity, the QIC’s Reconsideration involves a panel of medical professionals who decide based on clinical expertise, the patient’s medical records, and any other pertinent evidence.
3. Administrative Law Judge (ALJ) Hearing: If the Reconsideration is unsuccessful, the provider may appeal to an Administrative Law Judge within 60 days of receiving the QIC’s decision. The ALJ will arrange a hearing where the provider can present oral testimony via video, telephone, or in-person. These proceedings may include the provider, legal counsel, clinical experts, and other participants as needed.
4. Medicare Appeals Council: A review by the Medicare Appeals Council can be initiated by the provider after an unfavorable ALJ decision, by CMS following the decision, or by the Council itself. Typically, the Council does not hold hearings but bases its decision on the administrative record, including the ALJ’s oral testimony.
5. Judicial Review in Federal Court: Providers have 60 days from receiving the Medicare Appeals Council decision to seek judicial review in the appropriate federal district court.

Texas Medicare Audit and Appeals Attorneys

At the first indication of a TPE or UPIC audit, it is advisable to promptly consult with qualified healthcare legal counsel. Taking proactive steps early in the process can help avert a significant overpayment finding. Delaying action until an overpayment determination is made may drastically reduce your chances of success in the administrative appeals process. Once an overpayment decision has been issued, engaging legal counsel experienced in the Medicare appeals process can enhance your ability to mount an effective appeal. They can improve your chances of success at each stage by challenging claim determinations or the extrapolation used.