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7 Strategic Considerations for Medicare Appeals
Thursday, March 21, 2024

Ensuring that Medicare only pays for covered services is critical for protecting taxpayers, and it is one of the Centers for Medicare and Medicaid Services’ (CMS) primary responsibilities. However, improperly denying Medicare health plan reimbursement requests can also result in significant losses for participating health care service providers.

The CMS audit regime ensures that participating providers get paid—and only get paid—for services covered under the Medicare billing regulations. Unfortunately, a wrongful Medicare denial during Medicare audits is common. This leaves many participating health service providers needing to file appeals. 

The Medicare appeal process is complex and can prove both resource-intensive and time-consuming in many cases. However, some steps participating providers can—and typically should—take to ensure that the process goes as smoothly and results in as favorable an outcome as possible. With a clear understanding of the process and its risks and opportunities, providers and their counsel can strategically target favorable outcomes without unnecessary costs or delays.

So, what can—and should—healthcare providers and their counsel do when faced with the need to pursue a Medicare appeal? Here are seven strategic considerations:

  1. Identifying the Scope of the Appeal

At the outset, it is important to identify the scope of the appeal. This means both (i) understanding the volume of claim denials that are subject to appeal and, (ii) determining the specific grounds for appealing each individual claim at issue.

Of course, in many cases, Medicare-participating providers can challenge multiple claim denials on similar (if not identical) grounds to the federal district court. However, even when one issue during an audit results in multiple unjustified denials, it is important not to assume this is the only issue at play. Providers generally only get one chance to file an appeal—they must initiate the process within 120 days of receiving a Medicare summary notice of denial—so it is critical to ensure that an appeal addresses all relevant claims and asserts all viable grounds.

This can be a time-intensive process, so beginning the assessment as soon as possible is important. Working with their legal counsel, healthcare providers should identify all flaws in the audit process and the specific claim(s) affected by each. Then, with a clear understanding of what they stand to gain by filing an appeal, providers can decide whether moving forward with the process is warranted.

  1. Gathering the Documentation Needed to Pursue a Successful Medicare Appeal

If filing an appeal is warranted, the next step is to gather the documentation needed to pursue a successful appeals process. This documentation broadly falls into three categories:

  • Patient and Billing Records – Providers should collect (or at least identify) all patient and billing records, such as prescription drug coverage or Medicare number, relevant to their Medicare appeals. When seeking to reverse a claim denial, substantiating the claim's validity with preexisting documentation is critical.
  • Documentation from the Audit – Providers should also collect all documentation from the audit that resulted in the unwarranted denial(s). This includes not only the final audit report, but also all communications and other records generated during the audit process. These records will be critical for demonstrating why reversal is warranted. 
  • Documentation of the Grounds for the Appeal – In addition to collecting (or identifying) all relevant existing documentation, providers should also work closely with their legal counsel to document the grounds for their Medicare appeals. When seeking reversal of Medicare coverage or payment decision made by Medicare, providers and their counsel must clearly demonstrate the flawed determinations that led to the unjustified denials.
  • Having all three of these forms of documentation readily available is critical for finding success during the Medicare appeal process. Whether seeking a redetermination from a Medicare Administrative Contractor (MAC) or challenging a Qualified Independent Contractor (QIC) decision at the Office of Medicare Hearings and Appeals (OMHA) or Medicare Appeals Council, being thoroughly prepared and proactively submitting the documentation that decision-makers will need to render a favorable decision is essential for ensuring that the process is as efficient as possible.
  1. Attending to the Formalities of the Medicare Appeal Process

There are five “levels” in the Medicare appeal process, and each level has its own unique set of deadlines, filing requirements, and other formalities. When seeking to overturn unjustified Medicare Advantage plan reimbursement denials, participating providers and their counsel must ensure that they carefully adhere to all relevant procedural requirements—as failing to do so can prevent providers from achieving favorable results even when a reversal is otherwise warranted.

As an example, the first level of appeal involves submitting a “request for redetermination” to the appropriate MAC. As noted above, providers seeking to challenge wrongful Medicare reimbursement denials must initiate this process within 120 days of receiving notice of the denials at issue. To meet the applicable filing requirements, providers must submit either a fully completed form CMS-20027 or a written request that contains all required information. As CMS further advises, providers “ should include with their redetermination request any and all documentation that supports their argument against the previous decision,” and “[c]heck the MAC website for more information on how to file appeals.” Failing to meet any of the applicable requirements could result in denial of a request for redetermination irrespective of the substantive merits of a provider’s appeal.

  1. Taking a Comprehensive and Forward-Thinking Approach at Each Level

While there are five levels in the Medicare appeal process, providers and their counsel should focus on achieving a favorable outcome as early in the process as possible. This is the most cost-effective approach; and, with each succeeding level, there is one less opportunity remaining to secure a favorable result. With this in mind, providers and their counsel should take a comprehensive approach at each level—ensuring that the relevant auditor, office, council, or court has access to all the information it needs to conclude that the payment denial(s) at issue was unjustified.

At the same time, however, providers and their counsel must also keep an eye on the future. If an appeal at one level isn’t successful, what information and documentation will be needed to succeed at the next? While providers and their counsel should plan for success, they should also ensure they can go to the next level if necessary.  

  1. Leveraging Available Opportunities as Warranted

Providers and their counsel must make several strategic decisions when going through the Medicare appeal process. As opportunities present themselves, providers and their counsel should ensure they leverage them as warranted.

For example, if a QIC affirms a payment denial following a skilled nursing facility care request for reconsideration, the next stage is to challenge the QIC’s decision at the OMHA. At this stage, providers can choose to either request a hearing before an administrative law judge (ALJ) or have an attorney adjudicator render a decision based on the record. As requesting a hearing provides an additional opportunity to present the provider’s arguments (as well as the ability to communicate directly with the decision-maker in real-time), this approach will likely be favored in many cases.

  1. Providing a Clear Roadmap to a Favorable Determination

In any type of adjudicative proceeding, it is best to make it as easy as possible for the decision-maker to reach a favorable conclusion. Medicare appeals are no exception. At each level, providers and their counsel should focus on providing the decision-maker with a clear roadmap that outlines the mistakes that were made and why payment of the disputed claim(s) is warranted. As a general rule, providers and their counsel should not assume any knowledge on the part of the decision-maker, and should instead clearly outline all relevant facts, rules, and regulations.

  1. Mitigating the Risk of Future Unjustified Medicare Reimbursement Denials

Finally, along with seeking reversal of unjustified Medicare reimbursement denials, providers should work with their counsel to implement measures designed to prevent similar issues in the future. Whether this means generating additional documentation, playing a more active role in the audit process, or taking other steps will depend on the specific circumstances involved.

Unjustified Medicare reimbursement denials can disrupt providers’ cash flow, make it difficult for them to make payroll, and increase the risk of facing additional scrutiny in the future. As a result, challenging these unjustified denials is critical. By taking an informed, strategic, and proactive approach to the Medicare appeal process, providers and their counsel can efficiently target favorable results that put providers in favorable and stable positions for the future. Again, the key is to take action promptly and ensure that appellate decision-makers have all the documentation they need to reach the right conclusions.

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