Medicare Proposes Revision to RAC Appeals Process
Question: What is the potential impact of Medicare’s proposed revisions to the RAC appeals process?
Answer: The CMS is dealing with what it describes as “an unprecedented and sustained increase” in Medicare appeals that have come about as a result of the Recovery Audit Contractor (“RAC”) initiative. RACs, which retrieve overpayments on behalf of Medicare from providers, have created an immense backlog that has overburdened the Office of Administrative Law (“OAL”). With insufficient Administrative Law Judges (“ALJs”) to adjudicate the appeals, the CMS is proposing allowing the agency to reassign a portion of its appeals workload from ALJs to attorney adjudicators. The measure would allow attorney adjudicators to issue decisions when an appealing hospital or health system bypasses a hearing or withdraws a request for a hearing overseen by an ALJ. Decisions by attorney adjudicators can be reopened or appealed the same as if an ALJ had made the decision. The reception from the healthcare community has been lukewarm to this proposal. Many analysts believe that this proposal would barely put a dent in the massive backlog. As of April 2016, there were 750,000 pending appeals and CMS is capable of handling only 77,000 appeals per year. If the CMS’ proposal is accepted, the agency estimates that approximately 23,650 appeals per year could be redirected. Administrative Law Judges are also critical of this proposal as they are concerned that the agency has not outlined a set of review criteria required to be used by the attorney adjudicators when deciding cases. Also, even though the CMS said these lawyers should be “well-trained,” the term is not defined in the rulemaking, according to Marvin Bober, legislative chairman for the Forum of the United States Administrative Law Judges. Mr. Bober further stated that “with no definition of ‘well-trained’ or review criteria, an attorney adjudicator with little or no Medicare or adjudicatory training or experience is more likely to issue a legally or factually incorrect decision than a well-seasoned ALJ.” The CMS has not released a timeline for the issuance of a finalized rule.

Weekly Charting Tip:

Did you ever wake up in the middle of the night and find that you forgot to put something in your patient’s chart for that day? Can you change the chart? Especially with electronic medical records, do not even think of changing the chart. First of all, it is illegal and unethical. Second of all, if discovered, it is the quickest way to lose your case, audit or worse. EMR programs have a log of any and all changes in each entry. There is a legal, ethical and easy way to accomplish your goal of making your records accurate; simply add an addendum to the incomplete or inaccurate note. It must be dated for the time you amended your original note. It must be signed on that new, later date. You cannot white out or cross out any part of the original. Of course, it is much more credible if the addendum is made close in time to the original note. Addenda made years later carry little credibility. Yes, make your charts accurate in the approved way and sleep better at night!  Until next week, Larry Kobak, Esq.

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