HMEs have become increasingly alarmed about the number, type and
scope of Medicare audits over the last 18 months. Some of the
audits are not just unfair — they are contrary to coverage
criteria and do not comply with applicable laws and
regulations.
The law requires that the Department of Health and Human
Services pay only for covered items and services that are
“reasonable and necessary for the diagnosis or treatment of
illness or injury or to improve the functioning of a malformed body
member.” But the law also clearly states that the intent of
Congress is that HHS will pay for items when a beneficiary has
shown he or she meets medical necessity criteria.
The Association's concern is that recent efforts by CMS to
identify and recoup alleged improper payments has caused the agency
take actions that are contrary to its fundamental statutory
mandate. CMS contractors are routinely denying, or requesting
refunds for, medically necessary home medical equipment items that
are clearly covered by Medicare.
A member-directed task force at AAHomecare has been carefully
examining and documenting recent Medicare Integrity Program (MIP)
activities carried out by CMS and its contractors. The task force
has looked at dozens of sample audit letters that are typical of
the ones HMEs receive from Medicare contractors nationwide.
Keep in mind that Medicare Integrity Contractors (MICs) focus
mostly on preventing, identifying and recovering payments that
should not be paid or that were paid in error. Zone Program
Integrity Contractors (ZPICs) and Program Safeguard Contractors
(PSCs) are MICs tasked with these benefit integrity functions.
ZPICs and PSCs also develop cases for possible civil or criminal
investigations.
ZPICs, PSCs and DME MACs conduct both pre- and post-payment
audits. Comprehensive Error Rate Testing (CERT) contractors and
Recovery Audit Contractors (RACs) only audit claims post-payment,
consistent with their more limited scope of work.
Generally, all contractor actions must comply with the following
authorities:
The provisions of the Social Security Act and other federal
statutes, including those parts of the Administrative Procedure Act
that establish due process protections;
CMS rules implementing its statutory authority, such as rules
that govern timeframes for claim adjudication, limitations on claim
reopenings, and appeals;
National Coverage Determinations (NCDs);
Local Coverage Determinations (LCDs); and
Medicare manuals and program instructions.
Based on our examination of recent audit actions, it is clear
that CMS contractors often do not comply with these policies, laws
and regulations. Contractors are either refusing to pay for
services or are requesting refunds for claims, in spite of the
treating physician's determination of medical necessity and patient
records that further demonstrate legitimate medical need for an HME
item. Our review shows that Medicare contractors often deny claims
for reasons that are not specified in a controlling NCD or LCD or
impose new documentation requirements without notice to
providers.
ZPICs, PSCs and DME MACs in particular are performing non-random
prepayment complex medical reviews that include patently unfair
requests for additional documentation and give providers little
guidance about what they must do to terminate the prepay
review.
For example, recently, and apparently without prior notice to
providers, CERT contractors have been disregarding medical
documentation created at the time of the initial order. The CERT
now requires suppliers to submit patient records that explicitly
document medical necessity on the date of service the CERT is
auditing.
Very few LCDs or NCDs require the beneficiary to be seen by his
or her doctor twice a year. Consequently, HME providers do not
have, and usually cannot obtain (because the doctor does not have
them either), medical records that satisfy the CERT's request. In
other instances, even if such records exist, they lack the specific
wording the contractor believes is necessary for Medicare coverage.
The result is that providers must refund the claim despite the
presence of medical records that would have established medical
necessity only a few months ago.
The review of our task force also found that HME providers are
being unreasonably burdened by being placed on 100 percent
prepayment review absent credible evidence of fraud, waste, or
abuse. Providers are receiving additional documentation requests on
hundreds of claims, requiring them to spend enormous numbers of
hours obtaining clinical documentation to support medical
necessity.
Due to the volume of these requests that ZPICs are issuing, the
ZPICs are not completing their reviews in a timely manner, which
cuts off the providers' cash flow for extended periods of time.
This ultimately affects the providers' ability to furnish an
acceptable quality and level of care.
To address these severe problems, AAHomecare will meet with
federal regulators and members of Congress to make several
recommendations for CMS.
Specifically, CMS should:
Not permit contractors to apply new audit strategies
retroactively;
Establish clear, consistent rules on the medical necessity
criteria and documentation that contractors may request in an
audit;
Publish the criteria for comment and include HME providers and
physicians in this process. Once there are clear guidelines,
contractors may enforce them prospectively;
Establish parameters on the manner in which ZPICs perform
audits;
Place limitations on the number of additional documentation
requests a ZPIC can issue to any one HME provider; and
Limit ZPIC audits to situations where CMS or the ZPIC has
credible evidence of serious wrongdoing on the part of a home care
provider.
Our goal is to ensure fair treatment by CMS staff and its
contractors. We need unambiguous guidance that clearly defines what
is required of HME providers. Contractors must also play by the
established rules and need detailed instructions from CMS.
Auditing cannot be a game of “gotcha.”
If you have audit “horror stories” you would like
share, AAHomecare asks that you contact the associaton's Walter
Gorski at waltg@aahomecare.org.
Read more AAHomecare
Update columns.
Tyler J. Wilson is president and CEO of the American
Association for Homecare, headquartered in Arlington, Va. You can
reach him at tylerw@aahomecare.org. For more
information on critical home care issues, visit the association's
Web site at www.aahomecare.org.
