April 29, 2020 Book Synopsis

How to Win Medicare Appeals

By David Mullens

How to Win Medicare Appeals provides a step-by-step guide through the maze of Medicare appeals. The goal of the book is to enable health care attorneys, Medicare providers (providers and suppliers), coders, billers, and Medicare billing companies to survive the maze and reach the Administrative Law Judge level of appeal, the only level of appeal where a provider can expect a truly neutral payment decision. The book is written in plain English so anyone can understand it the first time they read it.

Why would the senior attorneys want to look at this book? Every senior attorney has family members, friends, acquaintances, colleagues, and clients who either provide Medicare services or represent people who do and are struggling with payment denials and demands for repayment of overpayments. Any senior attorney looking at the section on the letter brief and the section on the proposed decision would immediately understand the value of this guide. Please forgive the lack of humility. I just wish I had this guide when I was a practicing surgeon, undergoing my own Medicare audit 20+ years ago (explained in the opening section of the book).

Why hasn’t a “how-to” book like this been written previously? I frankly don’t know. What I am sure of is that the Medicare appeals process has become progressively more difficult and more adversarial with the passage of time.

And senior attorneys will not be surprised by the facts driving these changes. In 1966, when Medicare went into effect, there were 19 million Medicare beneficiaries and life expectancy for the average American was 70 years. By 2015, there were 55.5 million Medicare beneficiaries and life expectancy had risen to 78.8 years.

In addition to three times as many beneficiaries and a significantly longer average life span, the annual cost of care for the average beneficiary has skyrocketed due to new technology (e.g. MRI studies, CT scans, artificial joints, etc.). In addition, the enhanced safety of general anesthesia enables Medicare beneficiaries to undergo procedures not considered reasonably safe in 1966.

While Congress expects Medicare to provide quality care for the Medicare beneficiaries, Congress cannot or will not provide Medicare with enough money to accomplish this goal. It should therefore come as no surprise that it is the providers who are being squeezed in this “quality of care versus inadequate funding” dispute. Specifically, in response to less than optimal funding, CMS/Medicare is doing the only thing they can do and that is to tighten up the payment rules for the Medicare providers.

One of the things that amazed me while writing this book was the apparent willingness of the providers to accept seemingly unacceptable billing rules without a peep of opposition. This apparent “go along to get along” view was expressed by providers I spoke with in every specialty during the more than five years spent on this project. I try to emphasize in the book that Medicare doesn’t like or dislike a provider or a provider’s specialty, a commonly held fear across all specialties, Medicare just doesn’t have the money to pay for the services provided for the beneficiaries.

Here is the answer to the senior attorneys’ next question: How bad is it out there? Well, we are now at the point where a violation of any payment rule, no matter how minor, will result in a conclusion of “improper payment.” As an example, even if a diabetic therapeutic shoe service enables a neuropathic diabetic patient with an infected ulcer on the bottom of the foot to heal the ulcer and avoid amputation, or even loss of life, and even if all progress notes in the patient’s chart are complete - but one out of five Medicare “reporting” documents is found to be incomplete - all payments for the diabetic therapeutic shoe service are considered “improper” and the provider will receive a demand for repayment of overpayment for the service.

If asked to summarize the advice and guidance offered to the readers, I would include the following.

  1. Medicare providers must stay current with the definitions and rules that apply to the limited universe of services and/or supplies they provide.
  2. When faced with an incorrect denial or an incorrect demand for repayment of overpayment, the providers must appeal. Otherwise, they will give up income they cannot afford to surrender and will simultaneously invite closer scrutiny by the Medicare contractors hired to oversee “improper payments.”
  3. A simple spreadsheet, maintained daily, enables the provider to keep current with all Medicare appeals in the provider’s practice/business.
  4. Providers cannot procrastinate. The rules-laden appeals process results in mistakes. Therefore, providers must submit next level appeals quickly in order to have time to correct any mistakes before the time limit runs at that next level of appeal.
  5. Once the time limit for an appeal has expired, the provider will be fighting an uphill battle trying to get an extension of the time limit to submit an appeal, trying to get a dismissal of an appeal reversed, or trying to get a claim reopened.
  6. Realistically, however, bad things do happen during appeals and separate chapters are included to explain.
  7. Other than the correction of a clerical error, the goal of most first level, redetermination appeals is to make sure a complete and correct claim form is submitted with the redetermination appeal request.
  8. The second level, reconsideration appeal, is the critical choke point in the appeals process. Before 2005 a provider could submit evidence to prove a service was medically reasonable and necessary (the previous standard) at any point in an appeal. As of 2005, a provider must submit all evidence supporting payment when the second level, reconsideration appeal is requested. Any evidence not submitted with the reconsideration appeal must be rejected by the ALJ at the third level of appeal.
  9. Because all evidence must now be submitted when the reconsideration appeal is requested, the book explains how to submit a letter brief with the reconsideration appeal that answers the five key questions for the ALJ.
    1. In lay terms, what kind of problem does the patient have?
    2. Why did the problem require treatment?
    3. What service/supply was provided for the patient’s problem?
    4. How did the provider know the treatment was correct?
    5. Why is each denial reason offered by the contractor in the redetermination denial letter wrong?
  10. The book emphasizes the ALJ will not award payment if the ALJ does not know and understand the answers to these five questions.
  11. The book also guides the reader through the writing of a “proposed decision” to be submitted with the third level appeal request for an ALJ appeal and hearing.
  12. The proposed decision provides the ALJ with an analysis of the patient’s problem and treatment as applied to the law.
  13. If an ALJ decision in favor of a provider is subsequently reviewed by the Medicare Appeals Council, the Council’s decision will turn on the ALJ’s analysis. The provider is always in the best position to clarify the medical issues for the ALJ and ultimately, for the Council.
  14. In the chapter on preparing for the ALJ hearing, the book tells the provider how to write, condense, and rehearse the presentation for the hearing and explains the need to tell the patient’s story during the hearing the same way the provider would explain the problem and treatment options to the patient - rather than using valuable hearing time to recite a list of medical facts.
  15. The book also provides skeleton-outline letters to be used at critical points in the appeals process.

The senior attorneys will be pleased to read the Administrative Law Judges really do seek the correct outcome in Medicare payment disputes. The federal Administrative Law Judges who preside over the hearings are both competent and fair and, if the ALJs remain independent, the providers will have a viable defense against erroneous denials and erroneous demands for repayment of overpayment. 

Author

David Mullens, B.S., D.P.M., J.D. Dr. Mullens is a fellow of the American Board of Podiatric Surgery and has authored articles and book chapters on lower extremity problems. He has served as a Clinical Associate Professor at the Stanford University School of Medicine and as a Professor with dual appointments in Basic Science and Podiatric Medicine at the California College of Podiatric Medicine. He was a community surgeon in the Orthopedic Department of Stanford University Hospital from 1976 through 2011. He earned his J.D. at Peninsula University Law School in 1997. He established his own law practice in Palo Alto in 2004 and represents health care providers regarding payment for services by Medicare and for-profit insurance companies. To date, Dr. Mullens has successfully prosecuted for the collection of thousands of CPT and HCPCS codes previously denied payment by Medicare and for-profit insurance companies.