A year in the life of one provider: '24 months of lunacy'
We ran a story in our NewsWire this week, "Providers commit to fighting denials but call process 'inefficient,'" that prompted a detailed and thoughtful e-mail from one of our readers. It's an e-mail that if shared with members of Congress would make them shake their heads. Michael Watson, vice president of government affairs and corporate compliance officer for American Medical Technologies (d/b/a Gordian Medical), had this to say about the chaos of audits, and all the work and persistence it takes to straighten them out:
I don’t believe “inefficient” is even a remotely descriptive adjective for the current DMEPOS appeals process. I, unfortunately, did not receive the survey and was unable to respond but let me give you some of our experiences with this totally broken segment of Medicare.
Start with the Qualified Independent Contractor. . . since its creation we have submitted in excess of 70,000 claims to the QIC for Reconsideration. To date, the reversal rate has been 0.00% Yes, zero percent of the DME-MAC’s initial determinations and redeterminations have been overturned. This forces all of those claims into the realm of the Office of Medicare Hearings and Appeals. There are only two explanations for this 100% affirmation rate: (1) the DME-MACs are infallible in their claims processing and do not make mistakes; or (2) the QIC is merely “rubber stamping” the DME-MACs’ determinations without performing the function for which CMS is paying them, a violation of their contractual responsibility.
The Office of Medicare Hearings and Appeals is only slightly “less efficient” than the QICs. Our headquarters is located in Irvine, Orange County, California so it was only logical when OMHA began operation our Administrative Law Judge requests would be forwarded to the Western Field Office, also located in Irvine and only about one mile from our headquarters. The staff at the Western Field office were efficient and professional while the ALJs were all business, no-nonsense individuals providing truly a de novo proceeding and issuing decisions based on the evidence presented. The ALJ’s decisions were timely, accurate and we experienced an approximately 95% reversal rate of claims appealed.
We occasionally had a group of claims sent to one of the other Field Offices which caused some delays and it became necessary to request the Chief Administrative Law Judge, Perry Rhew, in Arlington to issue an order to all the Field Offices to forward any of our appeals to the Western Field Office for processing. This process, while somewhat inefficient, continued for 24 -36 months. It was rather pleasant to be able to answer documentation requests by putting someone in the car and dropping them off at the OMHA office 10-minutes away. Irvine would send us electronic copies of everything including the decisions. Suddenly, one day, we were notified that our appeals would be transferred to the Mid-Western Field Office in Cleveland for the sake of judicial expediency. Thus began the last 24 months of lunacy.
First off, what was supposed to be a move to enhance efficiency turned into a nightmare of chaos. Cleveland started “requesting” (meaning more of a demand) that we waive timeliness on our appeals. They didn’t know how to properly consolidate claims, pulling a statistically valid random sample to represent the universe (how Irvine handled all of the appeals). They did not segregate claims by jurisdiction, even though we submitted the requests in that way so as to make effectuation by the AdQIC more timely.
They began to lose documentation blaming it on the QIC . . . a possibility by far too frequent. The ALJs and Attorney Advisors did not understand surgical dressings and how they were used in long-term-care venues. They still refer to advanced wound care products as “bandages.” It’s a little like calling a Lamborghini a “cute, little Italian car.” Our reversal rate went from above 95% to below 15% and then finally to “Fully Unfavorable.”
In August 2010, we were informed that Cleveland no longer had money in its budget to hire a statistical expert to pull the random sample and extrapolate the results against the universe of claims. We were informed that we’d either have to waive timeliness and pay for their expert ourselves or we would have to address each claim individually. The first such appeal under this new austerity system contained 1,500+ claims. When the hearing was convened, it was explained that at 5 minutes per claim it would take in excess of 125 hours to review each claim. The judge then elected to change the issue from medical necessity to “adequacy of the documentation submitted.” We provided excerpts from the Surgical Dressings Local Coverage Determination which outlines the documentation required of a supplier, as well as excerpts from the Supplier Manual on the same requirements. We demonstrated how the documentation submitted in support of the claim met or exceeded the criteria outlined in the LCD and Supplier manual. The hearing lasted a little over an hour and the decision arrive a week later as “Fully Unfavorable” because, in her opinion, our documentation did not meet the criteria listed.
There are 3 ALJs in Cleveland that “hear” our appeals. They each use the same boilerplate decision format, changing nothing more than the appeal number in most instances. In some instances, the number of appeals/claims are not even changed to match the current appeal. We had one Judge keep the record open until the close of business the Friday following the hearing to allow us to present additional evidence. The decision arrived the following Tuesday having been dated and postmarked the Thursday BEFORE the record was scheduled to close. There was no mention of the additional evidence in the decision.
One ALJ had two hearings scheduled on the same date and for the same time. He opened the first appeal, swore the witnesses, heard testimony, closed the record and adjourned the hearing for that first appeal. He then proceeded to dismiss the attendees. The second appeal was never called, opened, testimony heard or anything else. A week and a half later we received two “Fully Unfavorable” decisions . . . one for the hearing that was convened and one for the hearing that was not. So much for administrative appeal rights.
We received a notice from one of the DME-MACs stating they had conducted a “post-payment review” and determined from the documentation that we’d submitted (they never made a documentation request) that we’d been over paid by a seven figure amount. We filed for a Reconsideration requesting, as is our right, a full copy of the case file from the QIC. We received an immediate affirmation of the overpayment but showing a different amount and no case file copy. We requested an ALJ hearing, again requesting a copy of the case file. We received confirmation of the appeal request and then nothing further from Cleveland for 2 months. After our third request for a full and complete copy of the case file, the ALJ responded that the case file contained nothing but a printout of claims. No worksheets, no notes, no templates for extrapolation, NOTHING! We immediately filed a motion to dismiss for lack of evidence. Instead, the ALJ “remanded” the appeal back to the QIC to complete the file. Another two months went by and we started pestering Cleveland about the status of the case. We were informed that the QIC had responded to the ALJ the month prior that the QIC was “unable to locate” any case file for the Million Dollar-plus overpayment. We again filed a motion to dismiss for lack of evidence. Instead, the ALJ scheduled the hearing for a month later. We provided testimony that in the absence of any case file, there was no way to determine if the DME-MAC had followed the CMS requirement for establishing an overpayment, no way to determine what the “reviewers” found or didn’t find . . . essentially no way to establish an overpayment occurred at all. Two weeks after the hearing, the ALJ reluctantly agreed with our arguments and gave us a “Fully Favorable” decision. The only one we’ve received in more the 2-1/2 years and tens of thousands of appeals.
Adding further insult to injury and even greater inefficiency, all of these appeals are now pending at the Medicare Appeals Council with the exception of the first two with the “inadequate documentation” issue which are now in Federal District Court, Central District of California, Los Angeles. The MAC has informed us that “due to the increased workload” it did not know when they would “get around” to reviewing our appeals. The MAC is overwhelmed. Federal District Court is soon to be overwhelmed.
What did we do about this? We filed a lengthy complaint with the new Chief Administrative Law Judge, Nancy Griswold, in Arlington. Judge Griswold politely blew us off. She said that Cleveland was “best equipped to handle the . . . workload” we generated. Irvine never had any problems handling the caseload from us. She said that “she had no authority” to review an ALJ’s determination or actions in a specific case. She responded to our complaint about the inability to obtain a full and complete copy of any of the case files by saying that if we used the HHS Form 719, “specifically designed for that purpose,” she would “ensure that all field offices uniformly and consistently follow OMHA’s policy.” We use the forms but still don’t receive copies of the case file.
The madness continues. We had an ALJ hearing on Wednesday March 9th for 224 beneficiaries. The ALJ issued the decision on Monday, March 14th (Fully Unfavorable – same old boilerplate) and we received it on March 21st. There’s more but I need to get off my soapbox for now.