SPECIAL NEWS BROADCAST: The Pause That Refreshes?

Monday Monitor

February 24, 2014

Someone who has championed the rights of providers for nearly three decades is health care attorney Andrew Wachler. Good morning, Drew. Drew, what’s your reaction to last week’s decision by CMS.

Good morning, Chuck. I’m cautiously optimistic, maybe not as optimistic as I was last week in terms of RAC behavior based on some additional information. But, optimistic because I think basically when you look at how things are lined up, we’ve had a lot of pressure, we’ve had problems with getting timely hearings while the withholdings continue. We have challenges with the 2-Midnight Rule, which does not seem to have a lot of industry support and I think this is the time for the providers, the hospitals and other providers, really have to keep the pressure up on CMS and input the process. I did not see a call for public comment on how the RAC program should be improved as a result of this announcement. Maybe it was there and I just missed it, but I think that’s what we need. We need some significant changes.

What did CMS say? They said they are transitioning down the current contracts so that recovery auditors can complete all outstanding claims review and processes, in addition to a plausible operation to allow CMS to refine and improve the Medicare Recovery Audit program. This is where I think we have to have substantial provider input. Now, you have to realize that the contractor’s agenda and CMS’ agenda may be two different things because we would expect a pause and we would expect a stop so they can catch up, but in fact, I received a call from a client, a large health system which did not have significant audit activity for a period of nine months, which received almost 1,000 requests on Friday and for them this change has actually increased their workload not decreased it. Now, CMS says in its notice that it has improved and is constantly improving the program and listening to feedback from providers and other stakeholders. We are seeing some changes, they are just too little and too late. We have to keep the pressure on. The CMS that people I talk to are some of the finest people around. It is just, it’s a big ship. They have a lot of different considerations. But, I don’t think there’s really been a history of really improving the program and listening to the providers. If you look at the Part B issue, they first implemented the ALJ orders that allowed rebilling for a period of time and then they implemented new rules that virtually cut off your ability to rebill. The 2 Midnight Rule doesn’t reflect to me substantial industry input or support. And now we have a situation where we have continuous statutory violations with late hearings while they’re withholding money. So again, the key is: don’t withhold the money if you can’t get a prompt hearing. I didn’t see anything of that in terms of the changes.

To kind of close and wrap it up, they are looking at a number of issues. One is a discussion period. By the survey and some of my discussions, the discussion period is under-used. It takes a substantial amount of resources. I’ve known doctors that have been very, very effective, but the RACs that they have, the resources, the contractors have to have the resources for the discussion period. Also, they’ve talked about the RACs not getting their contingency fee until the second level. What’s the big deal about that? It doesn’t change their behavior. It’s really the third level, the ALJ, which really impacts the contingency fee. And then the third area is the ADR limits and reducing those for those that have less denials. The input on that should really be, we have to consider the ALJ and the Appeals Council decisions. Because if you just favor those that have less denials and the denials are inappropriate you are basically favoring hospitals that are shifting to Part B, increasing the co-pay and deductible for the beneficiary, so we should really look at what someone’s record is at the entire appeals process.

Finally, I just want to say we should be pushing on the withhold issue. No withholds until after an ALJ hearing. That’s really where the key is, and some more reasonable approaches with denials up front. With that, I turn it back to you, Chuck.