Wachler & Associates Health Law BlogMedicare Audits: What a Provider Can Expect
Medicare claims audits can be a complex and frustrating experience for healthcare providers who choose to accept Medicare. If claims are denied during the audit – and they nearly always are – the appeal process can itself take months or years and contains many strategic decisions for a provider to make.
A Medicare audit generally begins when a Medicare contractor requests medical records from a provider. At this stage, it is important to note which type of contractor is making the request (is it a MAC, UPIC, RAC, SMRC, etc.?), which type of review the contractor is performing (pre-payment, post-payment, TPE, PPEO, CERT, is it likely to be statistically extrapolated, etc.?), and any special circumstances of the provider (Has it received similar audits or requests recently? Did it have a recent change of ownership? Does a separate entity possess relevant documentation? Etc.). Depending on the circumstances of the review, the provider may take additional steps to increase the likelihood that the claims reviewed by the contractor are found payable in the first instance. A provider may choose to submit additional records, retain a clinical expert, engage in additional communication with the contractor, or submit some form of legal brief or position paper. On the other hand, in some cases, it may be more appropriate to simply submit the records and await a response.
If claims are denied during the review, such claims are generally eligible for the Medicare claims appeal process, a complex, 5-step administrative appeals process. First is Redetermination, usually with the same contractor that issued the denials initially. Second is Reconsideration, before a different Medicare contractor. Third is review by an Administrative Law Judge (ALJ), where the provider has the opportunity to conduct a hearing and present witnesses. Fourth is review by the Medicare Appeals Council, the highest level of appeal within the Department of Health and Human Services. Fifth is appeal to federal court, which is usually limited in scope and not appropriate in many cases.
Each stage of appeals has its own regulatory requirements regarding deadlines, what types of evidence a provider may submit, whether the provider is permitted to submit evidence, standard of review, and what issues the contractors may raise. If Medicare is recouping funds from a provider, there are mechanisms to stop recoupment early in the appeal process, but it generally greatly accelerates the deadlines and can be administratively difficult to get the MAC to actually stop recoupment. Further, a provider faces a plethora of strategic decisions regarding how to present their appeal, what factual and legal arguments to make, whether to hire clinical or statistical experts, what evidence to gather and submit, how the audit may affect other aspects of the provider’s business, and many more. An experienced healthcare attorney can provide valuable advice and assist a provider in making these decisions.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, including Medicare audits, and our attorneys can assist providers and suppliers in understanding new developments in healthcare law and regulation. If you or your healthcare entity has any questions pertaining to Medicare audits or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.