From the moment you open a medical records request to the closing of the ALJ hearing, there are steps you can take to increase the odds of your appeal being successful. The very first thing you can do is train whoever opens the mail to both keep the envelope in which the request arrived and stamp the request with a “received on” date. In fact, make certain all communications related to appeals receive this treatment. There have been instances when the date on a letter varies by months from the date of the postmark. Since the deadline for appeals is based on when you received the information, it is important to be able to show when communications were received.
When you produce the record, be generous in including information. Some organizations are reluctant to send “outside records” because there is a widespread myth that it is improper to share records created in another healthcare entity. There is no basis for that concern; any medical information contained in your medical record can and should be included, especially if the information may have affected the medical judgment of those involved.
Numbering the pages of the production is extremely helpful. Most hearings are telephonic. When the hearing participants are in different locations, it’s extremely challenging to make certain everyone is looking at the same document. Any mechanism that readily allows someone unfamiliar with a record to locate a document will improve your argument.
You should also be certain to keep an EXACT copy of whatever you produce. Sometimes organizations assume that since they are producing an electronic record, or have a complete copy of the record, it is wasteful to make an “extra” copy of the record. Because it is so common for an auditor to claim part of a record was not sent, and because it is easy to make a copying error, you want to have a precise duplicate of whatever is produced.
When writing the appeal letter, be terse. Don’t feel a need to recount every detail in the medical record. Consider every possible mechanism for shortening the letter. If you are appealing several cases, and there are common legal issues in the cases, use one cover letter. If the appeals are separate, however, the judges will appreciate it if you keep patient-specific information on separate pages, because they must segregate patient identifiable information.
As you write the letter, you have the ability to establish the framework for the review. That is a powerful advantage. For example, in a short stay appeal, RACs and MACs often apply standards that vary from the standards articulated in Medicare Manuals. The manuals indicate that when the physician anticipates a stay of more than 24 hours, an admission is appropriate. Don’t allow the RAC to reframe the debate by focusing on some invented standard; set out the coverage criteria found in Medicare regulations (or possibly the manuals). After articulating the standard, explain how the case meets the standard. If the RAC or MAC has applied an improper standard, briefly explain that point. This is particularly important in cases involving hospital admission decisions. RACs and MACs regularly focus on the level of care provided during a stay. However, the Medicare Manuals establish a prospective approach: The admission decision is based on the expectation of what will happen during the stay, not on what actually occurred during the stay. Don’t allow the RAC or MAC to shift the standard.
One of the most common errors I see in appeals is failing to include the physician who will be testifying about the case at the hearing in drafting the initial communications. I have seen many situations where the physician reads the appeal letter while preparing to give testimony and the physician is uncomfortable with assertions made in the letter. Whoever is expected to testify in the case should review the initial appeal letter.
This raises the question of whether it is best to use the treating physician or to have a small number of “designated” physicians responsible for the appeals. I prefer using the same physician for most appeals. This allows you to train the physician on both the regulatory framework and the art of testimony. In the rare case where testimony from a treating physician is necessary, you can use that professional to supplement the information from your “expert.” Using a “designated” physician allows you to build a small team of individuals who can learn and work together. Each appeal can build on lessons from past successes and failures. Having a consistent team is probably the best tip for improving your appeals.
About the Author
David Glaser is a shareholder in Fredrikson & Byron's Health Law Group and helped establish its Health Care Fraud & Compliance Group. David helps healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes.
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