by Sean Weiss, CHC, CEMA, CMCO, CPMA, CPC-P, CMPE, CPC
November 17th, 2017
I want this story that I am about to share with you to fit with the majority of clients that I represent and work with because I have represented clients with refund demands as small as $1,000 and clients who had demands greater than $30 million. This year has been absolutely mind-blowing as our firm is engaged in handling more than $156 million in audit refund demands by the payers.
The client is a solo practitioner that was audited by a ZPIC (I will not give the name of the company to protect the guilty) that requested 30 encounters from this provider from a 2-year (2013 & 2014) period. The reason for the demand was as detailed as the denial reasons provided on a remittance... The letter stated they were reopening the case for "Good Cause" but failed to state what that "Good Cause" was. Here is what the ZPIC said in their form letter, "The re- opening is based on credible evidence regarding data analysis findings." These ZPICs use generic form letters that contain identical language seen in almost every client letter I have reviewed over the past year. Thus, it was my opinion they failed to establish "Good Cause" in this matter as it was nothing more than another fishing expedition on the part of ZPIC. Subsection 10.11 states - Good Cause for Reopening (Rev. 3568, Issued: 07-29-16, Effective: 09-30-16, Implementation: 09-30-16) "a contractor may reopen an initial determination or redetermination within 4 years from the date of the initial determination or redetermination when good cause exists." Under 42 CFR 405.986, good cause exists when:
- There is new and material evidence that was not available or known at the time of the determination or decision and may result in a different conclusion; or
- The evidence that was considered in making the determination or decision clearly shows on its face that an obvious error was made at the time of the determination or decision.
This all sounds reasonable right? Hardly, because to really understand what "Good Cause" means you have to dig deeper... Subsection 10.11 states that, "Third party payer error in making a primary payment determination does not constitute good cause for the purposes of reopening an initial determination or redetermination when Medicare processed the claim in accordance with the information in its system of records or on the claim form. Contractors may only reopen for third party payer error under the "within one year for any reason" standard. This is true for both contractor initiated reopenings as well as reopenings requested by a party. All providers and suppliers have a legal obligation to determine the correct primary payer when billing Medicare. Failure to do so, regardless of third party payer error, does not constitute "good cause" that will permit reopening beyond one year. Information regarding such error does not constitute "new and material evidence."
Additionally, the ZPIC violated Chapter 3 of the Medicare Program Integrity Manual; specifically 18.104.22.168 - Time - Frames for Submission (Rev. 628, Issued: 12-04-15, Effective: 11-16-15, Implementation: 01-06-16). In their letter, they indicated that our client must submit all of the documentation requested within 15 days. However, the guidelines in Section 22.214.171.124 state "ZPIC, RAC and UPIC shall notify providers that requested documents are to be submitted within 30 calendar days of the request." Additionally, it is important to know that you have the right to request an extension and given that they were failing to comply with Medicare Guidelines, I felt an extension was warranted. Section 126.96.36.199 goes on to state that "Because there are no statutory provisions requiring that postpayment review of the documentation be completed within a certain timeframe, MACs, CERT, UPICs and ZPICs have the discretion to grant extensions to providers who need more time to comply with the request."
Because this provider was a subspecialist (Geriatric Psychiatry), I felt that as part of our diligence we needed to request, pursuant to subsection 4.3 - Medical Review for Program Integrity Purposes (Rev. 675, Issued: 09-0916, Effective: 12-12-16) Section D. Quality Assurance documentation to demonstrate that each aspect of this review is being performed consistently and accurately throughout the ZPIC's MR for PI program, specifically item #4: The ZPIC, RAC or UPIC shall have an objective process to assign staff to review projects, ensuring that the correct level of expertise is available. For example, situations dealing with therapy issues may include review by an appropriate therapist or use of a therapist as a consultant to develop internal guidelines. Situations with complicated or questionable medical issues, or where no policy exists, may require a physician consultant (medical director or outside consultant). Under Section 188.8.131.52 of the Medicare Program Integrity Manual, "Requires that coverage determinations be made only by RNs, LPNs or physicians, unless the task can be delegated to another licensed health care professionals. Reviews of coding determinations, likewise, must be made by certified coders, but should also be made by those who possess the requisite skills in the specialty they are reviewing. Upon receipt of disclosure of the identity and qualifications of the auditors, a request for the disclosure of the identity and qualifications of the auditors should be made," which we requested to ensure that only those proficient and holding certification/credentials and actual experience in Geriatric Psychiatry for those in Skilled Nursing Homes, Nursing Homes, and/or Domiciliary Rest Homes were reviewing our client's documentation.
So, I am sure you are wondering what the outcome was given the arguments laid out above and the fact the ZPIC failed to maintain compliance with Medicare guidelines... Simple, the demand for $9,000.00 was deemed inappropriate and the case was closed. This is not an isolated case nor is it an anomaly. This happens more than you can imagine and if you do not choose the right team to protect you, you might as well just send them the money the day you get the letter.