Audits: Stakeholders strike while iron is hot

Friday, January 24, 2014

WASHINGTON – Expect the outcry over audits to heat up in the coming weeks, say HME industry stakeholders.

The Office of Medicare Hearings and Appeals (OMHA) plans to hold a daylong forum Feb. 12 to discuss a massive backlog of appeals that has forced it to suspend the assignment of new cases to the administrative law judges (ALJs) for as long as two years. Chief ALJ Nancy Griswold detailed the dire situation in a Dec. 31 memo to providers who currently have appeals pending.

“I think the memo was an attempt by the judge to showcase that they don’t have the manpower,” said John Gallagher, vice president of government affairs for The VGM Group. “They are throwing up a huge red flag to cease and desist.”

Gallagher plans to strike while the iron is hot, meeting with lawmakers the day after the forum, on Feb. 13. VGM is urging providers to join him.

Stakeholders aren’t the only ones crying foul. The American Coalition for Healthcare Claims Integrity on Jan. 21 issued a response to Griswold’s memo, accusing the ALJ of “jamming up the auditing process and undermining the RAC program overall.”

With audits affecting such a wide swath of health care—not just HME providers—stakeholders are reaching out across the aisle to home health agencies and hospital groups.

“We plan to draft a letter to CMS reiterating what all the associations are saying,” said Kim Brummett, director of regulatory affairs for AAHomecare. 

But getting everyone on the same page may be a challenge, stakeholders acknowledges.

“Because the healthcare system is so fractionalized, we rarely ever find out what someone else wants to do or is considering doing until it is done,” said Edward Vishnevetsky, an attorney with Munsch Hardt. “We still need to go at this and contact others.”


The Industry lost this issue January 19, 2013 and here is why!!! 

January 19, 2013 was the last day the industry had to appeal The Nichole Medical case to The U S Supreme Court.  Why is this soo important?  Incorporated in the Decision of that case as opinioned by The Third Circuit Court in Philadelphia is a bestowing of "An Outer Perimeter Discretion" ordained upon CMS Contractors!!  This opinion is signed by Two Third Circuit Judges with the imprimatur of The Retired Supreme Court Justice Sandra Day O'Connor.  Now I am NOT an Attorney but I have been fighting this issue for almost 10 years and I find it very doubtful for any Attorney to argue, someone with The Judicial Ranking like Sandra Day O'Connor got it wrong!!

This "Outer Perimeter Discretion" was first handed down in March 2011 by The Third District Judge.  I tried to inform the entire industry since 2011 this case would set an unprecidented Discretion crippling everyone with it's concept.  I said it would generate CMS Contractors to the analysis of a run-away train!!!  This "Outer Perimeter Discretion" was giving CMS and it's Contractors the open door to do whatever, however and whenever they wanted to administer the Medicare Program leaving the industry an inability to challange anything they do or the manner in which they do it.  It was all there for everyone to do what would have been neccessary to at least get the nine Supreme Court Justices to evaluate this Decision and bring this issue to the forefront and attention of Wahington Politicians but that ended January 19, 2013.

Anyone can search my name or my Company's name and read the articles and or comments I have written on this issue in the past 2 1/2 years.  It is ALL in print that this was coming.  The run-away train has left the station and you CAN'T bring it back!!  You can't unring the bell!!!

I wrote over & over that the industry needed protection from within The Courts!!  I paraphrased it as the industry having rules without any referees to enforce them.  The industry NEEDS and MUST HAVE a release from the grips on this "Outer Perimeter Discretion" that has NO boundaries!!  That's the issue!! The Opinion is soooo lossely written that I don't know if a CMS Contractor enroute to a Provider would be subject to a local traffic violation as long as the Contractor would have been on The CMS clock!!!!!