By Michael Rosenblat on March 15, 2018
How Medicare Providers can Fight a Medicare Recoupment
CHICAGO – Medicare and Medicaid providers are more often than ever facing audits from government agencies, regulators, or their surrogates. When contacted by any such an entity the first step is to determine your potential liability and exposure. Too many times, I have seen providers expose themselves needlessly to a criminal prosecution based on what started out as an administrative investigation. The goal should be to keep the inquiry at the lowest level possible, which is why it is important to obtain counsel experienced in both criminal and civil matters.
Most commonly, audits start with a document request or visit from law enforcement seeking records related to Medicare beneficiaries. This first contact tells us something about the government’s posture. If the government sends out agents to obtain records that is signaling that the government may believe that the provider will alter records if given the opportunity to produce them at a later time, typically 30 days. A document request by mail typically signals a civil inquiry.
When submitting records it is imperative that all documents are reviewed prior to submission and are bates labeled so that the produced documents can easily be identified for purposes of an appeal.
If there is an administrative finding of an overpayment, the provider may begin the appeals process. The first level of a Medicare appeal is the redeterminations. The redetermination is submitted to the same entity that did the original finding of an overpayment and in my experience is unlikely to result in a significant departure from the original overpayment determination. Nonetheless, a Medicare provider must complete this step to move through the appeals process.
The second level of appeal, the reconsideration, is submitted to a Qualified Independent Contractor or QIC. At this level, a Medicare provider is more likely to obtain relief. It is important at this level to submit all evidence the healthcare provider has to support its position because the healthcare provider will not be able to supplement the record, without good cause, if the provider wants to continue the appeals process.
Following the appeal to the QIC, the next level of a Medicare appeal is an appeal to an administrative law judge. These appeals are conducted by HHS, Office of Medicare Hearings and Appeals (OMHA). Here the appeal is usually conducted via telephone but it can be conducted by video teleconference, or even in person. If the Medicare provider wishes to appeal further, the provider may continue the appeal to the Medicare Appeals Council, with the final opportunity to appeal to the federal district court.
The entire appeals process was designed to take less than one year. The redetermination was to take 60 days, the reconsideration 60 days, the ALJ appeal 90 days, and the appeal before the Medicare Appeals Council, 90 days. However, the backlog of appeals at the ALJ level is now expected to take several years.
To learn more about filing an appeal as a Medicare provider of healthcare services, visit RosenblatLaw, or contact Medicare and Medicaid appeals lawyer Mike Rosenblat at 847-480-2390.
Information and articles on this website are for general information only and are not intended and should not be taken as legal advice.