This past week, you would find me in my home office, ironing out documents from Novitas, CMS’s MAC contractor which services the part of the country which includes Dallas, Texas.
When I say “ironing out,” I mean that literally.I pulled from the closet an old ironing board I have been lugging around for 40 years, and stood there like “Carson the butler” from Downton Abbey, ironing a stack of 35 bundles of letters which had just arrived in the mail (each with 15 pages printed front and back), which for some reason, CMS continues to stuff into envelopes that meant to hold no more than a few pages.
If I don’t iron them, the folds in the paper prevent them from going through the scanner. But this does make them stick with humidity. I have found it is best after ironing, to let them sit overnight to completely remove the humidity from the air, that prevents them from them stick together.
What’s a 935 Recoupment? When a provider is reimbursed by Medicare, there is always a potential that the government may audit the documentation and seek to recoup overpayments. It does not matter what happened in the real world, nor that the patient needed the treatment and got better.
If the documentation is lacking, then CMS can recoup amounts paid immediately. Section 935 of a 2010 statute, the MMA,allows a provider to stop recoupment, at least through the first two levels of appeal.
There are three recent 5th Circuit Medicare clawback cases which illustrate this point. InFamily Rehabilitation, Inc, 886 F.3d 496 (5th Cir. 2018), a home health agency treating 280 patients, received $7.6 million from Medicare. Family Health likely thought it had made it safely to “dry land” after navigating Medicare’s regulatory waters—it had managed, after all, to get paid the $7.6 million by Medicare.
But then, something terrifying crawled from the abyss, seeking to clawback the $7.6 million. A Medicare ZPIC auditor asked for documents on claims for 43 of Family Rehab’s 288 patients; ultimately deciding that 93 percent of the claims contained documentary deficiencies. These 43 claims were then extrapolated across the entire universe of Family Rehab’s 288 patients; resulting in an overpayment demand of $7.6 million, which sum could be immediately recouped from future payments— if Family Rehab didn’t act quickly to stop it.
Family Rehab did act quickly, but the Medicare Appeals process did not. As the 5th Circuit described it, “Family Rehab entered the harrowing labyrinth of Medicare appeals.”A provider must exhaust a four-level administrative appeals process before reaching the courts:(1) Level IMAC, (2) Level IIQIC, (3) Level IIIALJ and (4) Level IV the Appeals Council.
The problem, as Family Rehab argued, only the first two levels stop the recoupment. “If the QIC affirms the MAC’s determination, the MAC may begin recouping the overpayment by garnishing future reimbursements otherwise due the provider under 42 U.S.C. § 1395ddd(f)(2); 42 C.F.R. § 405.371(a)(3).” Id.
Many providers also misunderstand what is being requested.These UPIC letters are very clear, CMS isn’t asking for the records the provider might actually possess. The letters explain provideris expected to go get all the medical records from other providers, that support the billing provider’s claim, wherever they may be found—“as the billing provider you are responsible for obtaining those records for our review.”
A CLIA lab, for example, is expected to obtain patient records from the physician, showing why tests were necessary.UPICsmay order records from a third party under Ch. 3 of the Medicare Manual, but the UPIC will not share those records with the provider when it makes its findings. It will summarize what the records show. The provider won’t know what the records actually reveal, unless the provider independently obtains copies of the records.
While it is still possible to win at the third level, ALJ hearing, the recoupment will not stop during the remaining levels of an appeal.