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After being audited by Medicare and hit with a $150,000 recoupment demand, California primary care physician Robert E. Feiss was determined to fight the findings.
Auditors had declared that Dr. Feiss was providing care to patients in their homes that did not qualify as being medically necessary. He appealed, and after 3 long years of paperwork, petitions, and hearings, the doctor was successful in overturning the decision.
“It was a scary thing, without a doubt,” said Dr. Feiss, who is in private practice in Ventura, Calif., and treats a large population of seniors in their homes. “But I felt very strongly about what I do and am committed to what I do. It’s a bittersweet victory because, aside from the incredible stress it took, there was no recovery of legal fees. There was no recovery of damages or of the time spent away from my practice.”
Dr. Feiss’s experience is not unique. He is one of thousands of health providers who decide to appeal their audits by the federal government. Win or lose, audit experts say the course of an audit appeal is often long and arduous. Along with financial uncertainty and legal expenses, physicians face substantial delays before their case can be resolved. The wait time for an appeal to be assigned to an administrative law judge is about 2 years, according to a December 2013 letter from the Office of Medicare Hearings and Appeals (OMHA). After assignment, it’s another 6 months before the case is heard.
The wait times reflect OMHA’s enormous backlog of appeals. In fiscal 2013, OMHA received 384,151 new appeals, up from 59,600 in 2011, according to July testimony before Congress by Nancy J. Griswold, OMHA chief administrative law judge. Fiscal 2014 appeals through July 1 totaled 509,124. More than 800,000 OMHA appeals were pending as of July, and the office continues to receive 1 year’s worth of appeals every 4 to 6 weeks, Judge Griswold said. In July a coalition of medical associations, including the American Medical Association, wrote a letter to OMHA urging the agency to immediately remedy the excessive surplus.
“The backlog is a huge problem,” said Jessica L. Gustafson, a Southfield, Mich., health law attorney and vice chair of the American Bar Association Health Law Section’s Physician Issues Interest Group. “One major implication of the backlog is a cash flow interruption to a physician’s practice.”
Ms. Gustafson noted that under federal law, the Centers for Medicare & Medicaid Services is prohibited from recouping an alleged overpayment during the first two stages of an appeal. However, following a reconsideration decision, the CMS is authorized to recoup an alleged overpayment and withhold future payments as an offset to the alleged overpayment. Because of the backlog, the CMS can hold onto a physician’s money for years, until a final determination is made, she said.
In Dr. Feiss’s case, the CMS withheld his Medicare payments during the appeals process, he said. He hired Ms. Gustafson, who assisted him through three rounds of appeals before the case was assigned to an administrative law judge. The process was fraught with unexpected costs, such as hiring an accountant and paying for expert witnesses, he said.
“It was a very stressful period in my life,” Dr. Feiss said in an interview. “It’s almost like having two jobs. I was trying to maintain my practice, but I was trying to compile all this information that was required by Medicare and educate myself in terms of the terminology and definitions of Medicare law to understand their vernacular.”
While the lengthy process of an audit appeal may sound off-putting, experts stress that a large portion of physician appeals are successful. In 2013, 60% of Medicare Part B claims appealed were overturned in providers’ favor, according to a September report released by the CMS. In contrast, only 11% of Medicare Part A claims were overturned on appeal. Of Part B appeals associated with overpayments, about 9% of determinations were overturned in 2013.
For physicians deciding whether to appeal an audit, key considerations include whether their argument against the recoupment is sound and if they have sufficient documentation, said Michael E. Clark, a health law attorney in Houston, speaking in an interview.
“Physicians should assess whether they have meritorious grounds for an appeal before doing so because if the Qualified Independent Contractor renders an adverse decision then they will be required to pay interest on the overpayments in addition to the amount of the overpayment,” said Mr. Clark, who is chair of the American Bar Association’s Health Law Section. “Some basic issues are whether the underlying documentation is complete and supports the claims for reimbursement that have been made and whether the coding used is appropriate.”
Physicians should also consider the number of claims at issue and the amount of payment before deciding whether to pursue the appeal, Ms. Gustafson adds.
“In many physician cases, the amount at issue may not be worth the time associated with pursuing the appeal,” she said.
On the other hand, appealing is the only way to stop a recoupment demand, said Dr. Brent Moody, a member of the American Academy of Dermatology’s Workgroup on Innovation Payment Delivery and an American Academy of Dermatology Association adviser to the American Medical Association’s Relative Value Scale Update Committee (RUC).
“If a provider thinks they’re in the right, they should appeal,” Dr. Moody said in an interview. “It’s their right to appeal. They should exercise that right if they believe the RAC audit is incorrect.”
The government meanwhile, is taking steps to reduce the appeals backlog. Earlier this year, CMS offered to pay hospitals 68% of inpatient-status claims in exchange for withdrawing their pending appeals. If hospitals accept the offer, the move would free up the system for other pending claims, Ms. Gustafson said.
Mr. Clark does not foresee the appeals bottleneck truly loosening until Congress funds additional administrative law judge positions, he said.
“There’s a well known saying that well describes this problem: ‘Justice delayed is justice denied,’ ” Mr. Clark said. “The specter of having to wait months or years before an appeal can be heard is simply inexcusable given the intrusive nature of the RAC audits, the uncertainties involved, and the impact on the ability of physicians to practice medicine without fear of financial ruin.”
On Twitter @legal_med
After being audited by Medicare and hit with a $150,000 recoupment demand, California primary care physician Robert E. Feiss was determined to fight the findings.
Auditors had declared that Dr. Feiss was providing care to patients in their homes that did not qualify as being medically necessary. He appealed, and after 3 long years of paperwork, petitions, and hearings, the doctor was successful in overturning the decision.
“It was a scary thing, without a doubt,” said Dr. Feiss, who is in private practice in Ventura, Calif., and treats a large population of seniors in their homes. “But I felt very strongly about what I do and am committed to what I do. It’s a bittersweet victory because, aside from the incredible stress it took, there was no recovery of legal fees. There was no recovery of damages or of the time spent away from my practice.”
Dr. Feiss’s experience is not unique. He is one of thousands of health providers who decide to appeal their audits by the federal government. Win or lose, audit experts say the course of an audit appeal is often long and arduous. Along with financial uncertainty and legal expenses, physicians face substantial delays before their case can be resolved. The wait time for an appeal to be assigned to an administrative law judge is about 2 years, according to a December 2013 letter from the Office of Medicare Hearings and Appeals (OMHA). After assignment, it’s another 6 months before the case is heard.
The wait times reflect OMHA’s enormous backlog of appeals. In fiscal 2013, OMHA received 384,151 new appeals, up from 59,600 in 2011, according to July testimony before Congress by Nancy J. Griswold, OMHA chief administrative law judge. Fiscal 2014 appeals through July 1 totaled 509,124. More than 800,000 OMHA appeals were pending as of July, and the office continues to receive 1 year’s worth of appeals every 4 to 6 weeks, Judge Griswold said. In July a coalition of medical associations, including the American Medical Association, wrote a letter to OMHA urging the agency to immediately remedy the excessive surplus.
“The backlog is a huge problem,” said Jessica L. Gustafson, a Southfield, Mich., health law attorney and vice chair of the American Bar Association Health Law Section’s Physician Issues Interest Group. “One major implication of the backlog is a cash flow interruption to a physician’s practice.”
Ms. Gustafson noted that under federal law, the Centers for Medicare & Medicaid Services is prohibited from recouping an alleged overpayment during the first two stages of an appeal. However, following a reconsideration decision, the CMS is authorized to recoup an alleged overpayment and withhold future payments as an offset to the alleged overpayment. Because of the backlog, the CMS can hold onto a physician’s money for years, until a final determination is made, she said.
In Dr. Feiss’s case, the CMS withheld his Medicare payments during the appeals process, he said. He hired Ms. Gustafson, who assisted him through three rounds of appeals before the case was assigned to an administrative law judge. The process was fraught with unexpected costs, such as hiring an accountant and paying for expert witnesses, he said.
“It was a very stressful period in my life,” Dr. Feiss said in an interview. “It’s almost like having two jobs. I was trying to maintain my practice, but I was trying to compile all this information that was required by Medicare and educate myself in terms of the terminology and definitions of Medicare law to understand their vernacular.”
While the lengthy process of an audit appeal may sound off-putting, experts stress that a large portion of physician appeals are successful. In 2013, 60% of Medicare Part B claims appealed were overturned in providers’ favor, according to a September report released by the CMS. In contrast, only 11% of Medicare Part A claims were overturned on appeal. Of Part B appeals associated with overpayments, about 9% of determinations were overturned in 2013.
For physicians deciding whether to appeal an audit, key considerations include whether their argument against the recoupment is sound and if they have sufficient documentation, said Michael E. Clark, a health law attorney in Houston, speaking in an interview.
“Physicians should assess whether they have meritorious grounds for an appeal before doing so because if the Qualified Independent Contractor renders an adverse decision then they will be required to pay interest on the overpayments in addition to the amount of the overpayment,” said Mr. Clark, who is chair of the American Bar Association’s Health Law Section. “Some basic issues are whether the underlying documentation is complete and supports the claims for reimbursement that have been made and whether the coding used is appropriate.”
Physicians should also consider the number of claims at issue and the amount of payment before deciding whether to pursue the appeal, Ms. Gustafson adds.
“In many physician cases, the amount at issue may not be worth the time associated with pursuing the appeal,” she said.
On the other hand, appealing is the only way to stop a recoupment demand, said Dr. Brent Moody, a member of the American Academy of Dermatology’s Workgroup on Innovation Payment Delivery and an American Academy of Dermatology Association adviser to the American Medical Association’s Relative Value Scale Update Committee (RUC).
“If a provider thinks they’re in the right, they should appeal,” Dr. Moody said in an interview. “It’s their right to appeal. They should exercise that right if they believe the RAC audit is incorrect.”
The government meanwhile, is taking steps to reduce the appeals backlog. Earlier this year, CMS offered to pay hospitals 68% of inpatient-status claims in exchange for withdrawing their pending appeals. If hospitals accept the offer, the move would free up the system for other pending claims, Ms. Gustafson said.
Mr. Clark does not foresee the appeals bottleneck truly loosening until Congress funds additional administrative law judge positions, he said.
“There’s a well known saying that well describes this problem: ‘Justice delayed is justice denied,’ ” Mr. Clark said. “The specter of having to wait months or years before an appeal can be heard is simply inexcusable given the intrusive nature of the RAC audits, the uncertainties involved, and the impact on the ability of physicians to practice medicine without fear of financial ruin.”
On Twitter @legal_med
After being audited by Medicare and hit with a $150,000 recoupment demand, California primary care physician Robert E. Feiss was determined to fight the findings.
Auditors had declared that Dr. Feiss was providing care to patients in their homes that did not qualify as being medically necessary. He appealed, and after 3 long years of paperwork, petitions, and hearings, the doctor was successful in overturning the decision.
“It was a scary thing, without a doubt,” said Dr. Feiss, who is in private practice in Ventura, Calif., and treats a large population of seniors in their homes. “But I felt very strongly about what I do and am committed to what I do. It’s a bittersweet victory because, aside from the incredible stress it took, there was no recovery of legal fees. There was no recovery of damages or of the time spent away from my practice.”
Dr. Feiss’s experience is not unique. He is one of thousands of health providers who decide to appeal their audits by the federal government. Win or lose, audit experts say the course of an audit appeal is often long and arduous. Along with financial uncertainty and legal expenses, physicians face substantial delays before their case can be resolved. The wait time for an appeal to be assigned to an administrative law judge is about 2 years, according to a December 2013 letter from the Office of Medicare Hearings and Appeals (OMHA). After assignment, it’s another 6 months before the case is heard.
The wait times reflect OMHA’s enormous backlog of appeals. In fiscal 2013, OMHA received 384,151 new appeals, up from 59,600 in 2011, according to July testimony before Congress by Nancy J. Griswold, OMHA chief administrative law judge. Fiscal 2014 appeals through July 1 totaled 509,124. More than 800,000 OMHA appeals were pending as of July, and the office continues to receive 1 year’s worth of appeals every 4 to 6 weeks, Judge Griswold said. In July a coalition of medical associations, including the American Medical Association, wrote a letter to OMHA urging the agency to immediately remedy the excessive surplus.
“The backlog is a huge problem,” said Jessica L. Gustafson, a Southfield, Mich., health law attorney and vice chair of the American Bar Association Health Law Section’s Physician Issues Interest Group. “One major implication of the backlog is a cash flow interruption to a physician’s practice.”
Ms. Gustafson noted that under federal law, the Centers for Medicare & Medicaid Services is prohibited from recouping an alleged overpayment during the first two stages of an appeal. However, following a reconsideration decision, the CMS is authorized to recoup an alleged overpayment and withhold future payments as an offset to the alleged overpayment. Because of the backlog, the CMS can hold onto a physician’s money for years, until a final determination is made, she said.
In Dr. Feiss’s case, the CMS withheld his Medicare payments during the appeals process, he said. He hired Ms. Gustafson, who assisted him through three rounds of appeals before the case was assigned to an administrative law judge. The process was fraught with unexpected costs, such as hiring an accountant and paying for expert witnesses, he said.
“It was a very stressful period in my life,” Dr. Feiss said in an interview. “It’s almost like having two jobs. I was trying to maintain my practice, but I was trying to compile all this information that was required by Medicare and educate myself in terms of the terminology and definitions of Medicare law to understand their vernacular.”
While the lengthy process of an audit appeal may sound off-putting, experts stress that a large portion of physician appeals are successful. In 2013, 60% of Medicare Part B claims appealed were overturned in providers’ favor, according to a September report released by the CMS. In contrast, only 11% of Medicare Part A claims were overturned on appeal. Of Part B appeals associated with overpayments, about 9% of determinations were overturned in 2013.
For physicians deciding whether to appeal an audit, key considerations include whether their argument against the recoupment is sound and if they have sufficient documentation, said Michael E. Clark, a health law attorney in Houston, speaking in an interview.
“Physicians should assess whether they have meritorious grounds for an appeal before doing so because if the Qualified Independent Contractor renders an adverse decision then they will be required to pay interest on the overpayments in addition to the amount of the overpayment,” said Mr. Clark, who is chair of the American Bar Association’s Health Law Section. “Some basic issues are whether the underlying documentation is complete and supports the claims for reimbursement that have been made and whether the coding used is appropriate.”
Physicians should also consider the number of claims at issue and the amount of payment before deciding whether to pursue the appeal, Ms. Gustafson adds.
“In many physician cases, the amount at issue may not be worth the time associated with pursuing the appeal,” she said.
On the other hand, appealing is the only way to stop a recoupment demand, said Dr. Brent Moody, a member of the American Academy of Dermatology’s Workgroup on Innovation Payment Delivery and an American Academy of Dermatology Association adviser to the American Medical Association’s Relative Value Scale Update Committee (RUC).
“If a provider thinks they’re in the right, they should appeal,” Dr. Moody said in an interview. “It’s their right to appeal. They should exercise that right if they believe the RAC audit is incorrect.”
The government meanwhile, is taking steps to reduce the appeals backlog. Earlier this year, CMS offered to pay hospitals 68% of inpatient-status claims in exchange for withdrawing their pending appeals. If hospitals accept the offer, the move would free up the system for other pending claims, Ms. Gustafson said.
Mr. Clark does not foresee the appeals bottleneck truly loosening until Congress funds additional administrative law judge positions, he said.
“There’s a well known saying that well describes this problem: ‘Justice delayed is justice denied,’ ” Mr. Clark said. “The specter of having to wait months or years before an appeal can be heard is simply inexcusable given the intrusive nature of the RAC audits, the uncertainties involved, and the impact on the ability of physicians to practice medicine without fear of financial ruin.”
On Twitter @legal_med
