ALJ Delay Will Ratify Eradication of Medicare Part B Providers

Nancy J. Griswold, Chief Administrative Law Judge at the Office of Medicare Hearings and Appeals (OMHA), sent a memorandum to various providers warning that, effective July 15, 2013, Administrative Law Judge (ALJ) assignments would be delayed for at least 24 months. Judge Griswold stated that she also expects post-assignment hearing wait times to continue to exceed six months. In total, some cases may linger three years or more before an ALJ hearing occurs and an adjudication is issued. Many Medicare Part B providers and suppliers remain unaware of the tools that the government uses to collect Medicare overpayments. The below hypothetical scenario summarizes part of the Medicare recoupment process to ensure your awareness. Hypothetically, a provider receives a letter from CMS stating that 40 percent of its claims for certain HCPC or CPT codes were improper in the past year, translating to an overpayment of $150,000. CMS then extrapolates the denial percentage to all of the provider’s claims for those codes within the past five years, leading CMS to demand the provider pay $4.5 million for overpayments. Extended Repayment—First, the provider must decide whether to submit a request for an Extended Repayment Schedule (ERS). The following are some facts about the ERS process: 1) The government will approve an ERS if the total amount of outstanding overpayments is 10 percent or greater than the total Medicare payments made the previous calendar year. 2) The longest an ERS can last, if approved, is 60 months from the date of the Initial Demand Letter. 3) The interest rate associated with an ERS is statutorily set at 10.875 percent. 4) Payments recouped during ERS processing will not be refunded to the provider. 5) Providers who submit a request for an ERS lasting greater than six months must submit financial documentation, including a bank letter denying a loan request for the amount of alleged overpayment. Assuming a maximum ERS approval of 60 months: 1) The provider must pay $97,560.61 in principal and interest each month. 2) Based on the three-year delay outlined above, the provider will pay $3,512,181.96 before an ALJ adjudicates the claim. Treasury Offset Program—If the provider fails to make payment arrangements with CMS or CMS is unable to recoup the alleged debt within 180 days, the debt becomes delinquent, and CMS refers it to the United States Department of Treasury for collection under the Treasury Offset Program (TOP). Under the TOP, the Department of Treasury can collect debt from the provider (debtor) by collecting funds directly from any federal sources of Debtor income. In addition to the TOP, CMS has the prerogative to refer debt collection activity to: (i) another debt collection center; (ii) a private collection contractor or (iii) the Department of Justice. These entities may initiate lawsuits against the provider for the debt. Lawsuit collection efforts include rights to collect on all of a provider’s assets—not simply the Medicare funds at issue. Providers with the Same Tax Identification Number—Section 6401 of the Affordable Care Act added the option to collect overpayments from entities sharing a tax identification number (TIN). Based on this, a provider needs to be aware that if he owes a debt to Medicare, the Department of Health and Human Services may withhold or recoup any payments made under Title 42 of the United States Code (i.e. Medicare, Medicaid) to any other provider or location of a provider that shares the same TIN, regardless of a difference in NPI or billing numbers. Auditors and Appeals—The government prevents a provider from appealing a claim at any level of the administrative appeals process, including the ALJ, if that provider fails to comply with any Medicare Conditions of Participation (ie., accreditation, licensure). This is particularly worrisome given the manner in couped by the time the ALJ hearing occurs; and (b) if the providers have no payments coming in, they cannot afford to comply with the mandatory Conditions of Participation; and (c) providers that cannot comply with the mandatory Conditions of Participation have no right to appeal those claims at the ALJ level. The RACs will end up initiating thousands of audits with the knowledge that the providers will be unable to appeal the audits at the ALJ level (where most claims are overturned), thus allowing the RACs to collect a commission on the recouped overpayment.