Stakeholders to lawmakers: Stop the audit madness

Friday, February 7, 2014

WASHINGTON – A small but determined group of HME stakeholders will travel to Capitol Hill this week to take on audits.

“We don’t want to sit back and take it anymore,” said Lisa Willis, director of compliance for Jasper, Ala.-based Med-South. “We are at the point where you shut down the ALJs, and they’ve dragged their feet on all of the other audit (problems).”

The Office of Medicare Hearings and Appeals (OMHA) will host a daylong forum Feb. 12 to discuss an increased workload that has resulted in a backlog of some 460,000 appeals. In a Dec. 31 memo, the chief ALJ announced it would suspend assignment of hearings for appeals going back to July 15, 2013, for as long as two years.

This, despite a law that states providers that file an appeal must receive a decision within 90 days.

“Where in America do you have an appeal process where the government takes money and there’s (no recourse)?” said John Gallagher, vice president of government relations for The VGM Group. 

Gallagher will lead a group of about 15 providers to the Hill. They will attend Wednesday’s forum and live tweet using the hash tag #VGMAuditMadness. On Thursday, they will meet with key members of Congress, including members of the Ways and Means, Energy and Commerce and Senate Finance committees. Among their asks: suspend audits immediately, and stop recoupments on current claims denials that are waiting for an ALJ hearing.

“I recognize that they are shorthanded but the guidelines clearly state that there’s a time limit,” said Willis.

CMS, in an email to HME News, said that the agency “does not forsee halting audits.”


Wow!!  Respectfully, while I certainly encourage and welcome some positive recourse taken by the industry confronting this issue I have been fighting for almost 10 years.  I don't remember ALL the concern about Audits from 2 1/2 years ago when I first tried to bring it to everyone's attention as your public enemy number one.  I think most of you sat back as I attempted to get this issue through The Federal Courts on my own and it was thought of as my problem.  Now everyone wants to close the barn door after the horses are out!!  Stop as I characterized CMS a run-away train!

I think maybe you should think about what you are going up against before you attempt this!!!

Let's look at your scenario.

First, As I understand the law I DO NOT  believe Congress has ANY control over how or what CMS does in it's administration of The Medicare Act.  I believe it is totally an Administrative function under the jurisdiction of 1600 Pennsylvania Avenue.  It is the responsibilty of The President!!

Second, You are attempting to convince members of Congress; a Congress that could NOT stop the rollout of the ACA at the end of last year under the jurisdiction of CMS even using a government shutdown as one of it's weapons.  You want them to stop CMS Contractors from it's assault with Audits!!  This same Congress that had both The Secretary of HHS and the CMS Administrator appear before it for questioning as to the ACA rollout debacle.  Both of them surviving the debacle of the 600+ M dollar expenditure for software created under their supervision for the ACA that DID NOT work. 

CMS as stated in this article above will NOT be halting any Audits!!!

Third, even if Congressional members approach CMS about this issue I hope you ALL have your evidence gathered to refute the arguments CMS will present those Congressional members the billions of dollars they are recapturing and saving The Medicare Program as a result of Audits!!  When you argue that the ALJ's overturn more than 1/2 of the audited claims.  CMS will counter to Congress they are recapturing almost 1/2 of ALL claims Paid!!!  Saving The Medicare Trust Fund Billions of dollars!!! 

You hopefully have hard data to refute this argument!!  It will be CMS's Weapon of Choice!!

Fourth, about the Constitutionality of the Audit issue as reported.   It is true The ALJ's have as written in the  law adjudication by them needs to be done within a 90 day window.  This 90 day window I DO NOT believe, however, pertains to The Medicare Appeals Council!!!  That being said you close the Front door they will come in the Back door.  It will be a mandate by The Secretary EVERY ALJ Decision be remanded to The Council for review!!  For those that may NOT be completely apprised of the rules NO MONEY withheld is remitted back to a Provider until ALL and I CAN NOT emphasize enough ALL Administrative Remedies are exhausted.  BTW The Council members are a much smaller group of Administrative Law Judges than the ones that would be subject to the 90 day rule!!!

Finally, my favorite, CMS will inform the members of Congress or remind them.   The Third Federal Court in Philadelphia, PA. on September 13, 2012 has already ruled in a PRECEDENTIAL DECISION; CMS and it's Contractors have an "Outer Perimeter Discretion" in the Administering "The ACT" as a matter of law.  This veil was signed by Retired Supreme Court Justice, Sandra Day O' Connor.  The ruling further stipulated that The Federal Courts have NO legal jurisdiction "lack of jurisdiction" on this issue.

CMS will then inform the members of Congress this case was NEVER appealed before The Supreme Court by the industry!!

I do wish ALL of you Good Luck!!  I just want ALL of you to realize the additional OFFENSIVE weapons available to CMS and for the most part unless you have hard DATA to refute the current actions of CMS  you are shooting blanks.  As I have said previously; "you have rules with NO Referees to enforce them!!"




I receive audit request probably on average 5 per week. sometimes up to 10.  It is a nightmare they are all denied stating that dwo not received, equipment received before order etc. I have a time limit as everyone does for responding to these audits. When you call in to customer services to see why it is denied they give you the same reasons 90 % of the time. You then send to Redeterminations and again it is denied for the same reason, then the same happens when it gets to reconsiderations. Is no one reading the documentation sent in. I fax anywhere from 35 to 60 pages for each audit request. Once it gets to ALJ it is so backed up I am still waiting for hearings as far back as October 2012 on a patient. I call in to get updates for the hearings and they tell me it is not on the docket. All this time we are not paid for equipment issued. It is very time consuming for are suppliers to track, resubmitt paperwork three and four times for a payment. I believe the audits are out of hand and for companys doing business properly and not getting paid is only hurting business. I have over 50 accounts i am waiting for a reply on one level or another.  I believe the Alj should report the number of cases they review and found that they should have never gotten to their level and fine the departments that denied them to begin with. That would stop some of this madness.  Please feel free to call me 337 942 8911 ext 2102. again thanks for allowing us to comment and let others know what is going on.  Frustrated in Louisiana.