I just finished reading an article by Chuck Buck of RACmonitor that had to do with the administrative law judge (ALJ) appeal delay issue. According to Chuck, the Office of Medicare Hearings and Appeals (OMHA) has decided to suspend new ALJ hearing requests for two years. I think we should pause for a moment here to let you read that again and give it a moment or two to sink in.
Let’s walk through the scenario. You are audited by a RAC and in their normal, incompetent way, it finds 15 of the 30 charts it reviewed as paid in error (or overpaid, as it always seems to be). Statistics show that nearly 50 percent of their findings of charts paid in error will be, well, in error, meaning that the RAC is either poor at auditing medical records or, worse, dishonest.
Personally, my experience has been the former. In either case, the result to the provider is the same: a loss of revenue pending an appeal (or, to use different wording, guilty until proven innocent). Your recourse? Well, you can participate in the discussion period, which continues until the recoupment occurs (somewhere around 40 days). Maybe you can convince the RAC to overturn its decision. Excuse me, but am I missing something? Is there some kind of existential meaning to this that I am just not able to comprehend? A RAC auditor reviews my documentation, finds a higher-than-statistically-significant number of claims paid in error, and all I have to do to resolve this is “start a discussion?” What is this, junior high all over again? How about this: if all it takes is a good talking-to, then maybe the finding was inappropriate to begin with!
After the discussion degrades to an argument and they digitally blow you off, you then can move to the appeal phase (or phases, to be more accurate). How about redetermination? According to www.dictionary.com, this is defined as “the act of coming to a decision or of fixing or settling a purpose.” Hmmm. I actually thought that was the purpose of the audit: to thoroughly review the medical records to come to a decision as to whether the claim was paid in error. What is the purpose of the “discussion,” if not to address our concerns with the results of the audit? Instead, we can complete form CMS-20027, which has at its core the numbers six and seven. Line No. 6 reads “I do not agree with the determination decision on my claim because,” and then you get three lines to fill in your now often-reiterated argument. Line No. 7 reads “additional information Medicare should consider,” which I suppose is different from No. 6. Both probably contain more information that what was discussed during the ”discussion period.” If not, then what is the purpose of this step?
After wasting time on the redetermination step, you can move on to the … are you ready? The “reconsideration” step of the multi-layered appeal process. Now you get to fill out Centers for Medicare & Medicaid Services (CMS) form 20033, which has at its core the numbers six and seven. Can you guess what they are? Well, since we seem to have lost all concept of efficiency by now, let’s spell them out. No. 6 reads “I do not agree with the determination decision on my claim because,” and then you get three lines to fill in your even more often-reiterated argument. No. 7 reads “additional information Medicare should consider,” and the next three lines are there for you to provide more information for Medicare to consider that you forgot to mention in the “discussion period,” and on form 20027 during the redetermination phase. By the way, the definition for “reconsideration,” once again, is “to consider again, especially with a view to change of decision or action.”
By now, the overwhelming majority of providers have heard the word “no” more times than I did at my high school prom. Why is there such a low rate of success during these initial steps? Maybe (and I am just hypothesizing here), it’s because the folks to whom the appeals thus far have been made stand to lose between 9 and 12.5 percent of the overpayment findings, as this is their commission for the job. At this very moment, I am glad that I am sitting down. We really need to think this through and spend some time contemplating the absolute stupidity (and possibly corruption) involved in this whole process. Our medical records are being audited by people most likely unqualified to render an opinion as to whether the documentation supports payment of the claim associated to a chart. Their findings statistically exceed the upper limit of the findings in the CERT study (a benchmark for overpayment statistics) by a significant margin. They get paid a commission on every dollar they find paid in error, and then we ask these same people, who reached an incorrect conclusion, to reverse their own findings (giving up the commission) – and they say no. Perhaps the most egregious part of all of this is when we act surprised! Give me a break! This is governmental incompetence at its worst.
Finally, after a birthday or two has passed, and after spending likely more than the value of the claim, we finally get the opportunity to present our case to a (probably) qualified, unbiased and disinterested party: an ALJ. Perhaps the single most important component in this step is that the hearing officer doesn’t have any skin in the game. Unlike for the prior steps, the outcome is at least likely based on a decision by someone who does not have anything to lose, through a fair adjudication of the findings. Often overlooked, this is so critically important, and why so many providers want to go to the ALJ level: because it is one of the few times in which they really have a chance at a fair hearing. In fact, in several surveys I have conducted, our findings indicated that the rate of reversal at the ALJ level is near 80 percent. Think about that! An unbiased and objective method finds that the RAC was incorrect in their findings 80 percent of the time.
So, what does the government do? They take the only step in the appeal process that has any hope of restoring honesty and fairness to the system and rig it so that it can no longer work. As it is, it can take up to two years to get before an ALJ for an appeal. Now, you can bank on that number growing to three or four years. Not only is this not due process, I see it as a potentially intentional move by CMS to prevent providers from keeping the money that they worked hard to earn.
So, is there a point to this article other than it just serving as a dumping ground for some of my random rants? Well, yes, there is! And it is this: why in the world would anyone choose to be in business with a company that does everything it can to prevent you from profiting from your hard work? I mean, from a business perspective, who wants a business partner that creates chaos to such a degree that paying you for your contracted services becomes so burdensome and expensive that you eventually just give up and do the work for free? That, in essence, is what we are coming to with regard to all insurers, not just Medicare. Want to be free of the burden? Then send a “dear John” letter to all of them and stop the madness. John Gruber, the professor of Economics at the Massachusetts Institute of Technology (MIT) who is widely regarded as the father of Obamacare, published a study in September 2007 titled “How Much Uncompensated Care Do Doctors Provide?” In this study, Dr. Gruber clearly illustrates that physicians are more profitable serving uninsured patients than they are serving insured patients. And that was then, before stupidly high deductibles and our current environment of no pay for performance. Am I saying that healthcare providers should drop all of their payors and go either non-par or out of network? (This is where I am supposed to say “of course not,” but stand by.) Of course! That is exactly what I am saying. I guess there has to be an ROI in there somewhere, some notion that the value of what you get (revenue) from the payor is more than the cost of doing business with them (in terms of dollars and hassle factor), but I can’t imagine that the benefit is that great anymore. And while I try to stay away from politics, I was imagining how effective it would be if docs all across the country dumped Medicare right before an election, with a huge voting block mad as hornets over the inability of CMS to do anything right anymore. Just saying. If CMS really believes that in order to assuage the overload of ALJ hearings, they have to put a two-year moratorium on those requests, perhaps we should also consider a two-year moratorium on audits. Just thinking out loud here.
I end this with a quote from one of my favorite movies: Network, a 1976 film about a television network that cynically exploits a crazy ex-anchor’s ranting about how the media is just in it for the money. In the movie, the main character, Howard Beale (played by Peter Finch), includes the following quote in his famous rant:
“I want you to get up right now. Sit up. Go to your windows. Open them and stick your head out and yell – 'I'm as mad as hell, and I'm not gonna take this anymore!'”
And I can’t think of anything I could say that would better express my feelings.
Whew! I feel better; how about you?
About the Author
Frank Cohen is the senior analyst for The Frank Cohen Group, LLC and a member of the National Society of Certified Healthcare Business Consultants. He is a healthcare consultant who specializes in data mining, applied statistics, practice analytics, decision support and process improvement.
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