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Understanding the Medicare Appeals Process and the Medicare Manual for Rehabilitation Services

Kathleen Dwyer OTR/L, CHT Audit and Appeals Specialist

June13,2019

Learning Outcomes § Describe the Medicare appeals process § Define RACs, MACs, QICs, ALJs § Apply strategies to therapy documentation that will

meet Medicare requirements per the Medicare Manual, specifically Chapter 15

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Information presented today comes from The Medicare Benefit Policy Manual, Chapter 15, Section 220 and from resources within both Centers for Medicare & Medicaid Service’s website as well as the U.S. Department of Heath & Human Services website."" CMS.gov and HHS.gov.

Alpha Stock Images - http://alphastockimages.com/

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THE MEDICARE CLAIMS APPEALS PROCESS

Understanding the lingo § RAC § ALJ §  LCD § MAC § QIC §  FFS

Flickr/cc by 2.0

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Recovery Audits- RAC §  The Centers for Medicare & Medicaid Services (CMS) complete

recovery audits to identify improperly paid medical claims. §  According to CMS: Recovery Audit Contractors (RACs) review claims

on post-payment basis. The RACs detect and correct past improper payments so that CMS and MACs can implement actions that will prevent future improper payment.

Index. (2019, April 24). Retrieved from https://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medicare-FFS-Compliance-Programs/Recovery-Audit-Program/Index.html

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MAC § Medicare Administrative Contractors (Oct ’17)

§  CGS Administrators, LLC §  Noridian Healthcare Solutions, LLC §  National Government Services, Inc. §  Wisconsin Physicians Service Government Health Administrators §  Novitas Solutions, Inc. §  Palmetto GBA, LLC §  First Coast Service Options, Inc.

Appealing Medicare Decisions

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Level I: Redetermination

§  File an appeal within 120 days of the initial decision on a claim.

§ Medicare Redetermination Request Form §  https://www.cms.gov/Medicare/Appeals-and-

Grievances/OrgMedFFSAppeals/Downloads/CMS20027a.pdf

§ The MAC must issue its decision within 60 days.

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Medicare Redetermination Request Form

Case Presentation: Level I

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• Speech Services • Cognition • Dysphagia

Speech Therapy

• Exceeded $3700 • Not reasonable • Not necessary • No significant change

in swallow function • No carry over

CGI: Pre-Pay Letter

""Level I: Redetermination"

" •  Submitted Form

•  Also an additional summary letter

Appeal

•  ASHA NOMs •  Recent weight loss •  Change of diet •  Gains /progress •  Medical decline •  SLP adjusted POC

Speech Services

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Level II: Reconsideration / QIC § Reconsideration by a Qualified Independent

Contractor (QIC) § Must file an appeal within 180 days of the

redetermination. §  File using CMS-20033 form

§  https://www.cms.gov/Medicare/Appeals-and-Grievances/OrgMedFFSAppeals/Downloads/CMS20033.pdf

§ The QIC must issue its decision within 60 days.

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Case Presentation: Level II

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Case Presentation: Level II

• Medicare redetermination decision : unfavorable

• Not reasonable or necessary

• Will not retain information

• Functional plateau • Documentation is

routine, repetitive

CGS • Reconsideration Form • Additional Summary • ASHA NOMS level 3 • Able to learn with SLP cues • SLP has specific skill set for

meal analysis, understanding phases of swallow; taking into consideration environment, attention, memory and alertness

Appeal

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Level III: OMHA § Hearing by an Administrative Law Judge (ALJ) § Must file an appeal within 60 days of the QIC’s

reconsideration, provided that the case involves at least $160 in dispute (as of 1/1/17).

§  File using OMHA-100 form §  https://www.hhs.gov/sites/default/files/

OMHA-100.pdf       § The ALJ must issue a decision within 90 days.

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Case Presentation: Level III

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Case Presentation: ALJ •  Unfavorable •  Not reasonable or necessary •  Lack of sophistication •  Lack of complexity •  Do not meet Medicare

coverage criteria

QIC Determination

•  Form Submitted •  All documents

from previous appeals

Submitted ALJ hearing request

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ALJ Hearings •  Conference Call •  Attendees •  Sworn in •  Records are submitted •  Defend case verbally

ALJ Prep PLOF

Eval

StatusGoals

Progress

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ALJ presentation PLOF(AL,alone)

Eval(change/status)

Status(NOMs,weightloss)

Goals(CommunicaLon,CogniLonforALreturn)

Progress(barriers)

ALJ Decision"

March 6, 2019:unfavorable

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ALJ Appeals Status Appeal status with the Office of Medicare Hearings and Appeals (OMHA)

§  https://aasis.omha.hhs.gov/inquire

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Level IV: Medicare Council § Review by the Medicare Appeals Council with the

Departmental Appeals Board § Must file an appeal within 60 days of the ALJs

decision. § Use Appeal Form DAB-101

§  https://www.cms.gov/Medicare/Appeals-and-Grievances/OrgMedFFSAppeals/Downloads/DABform.pdf

§ The Medicare Appeals Council must issue a decision within 90 days.

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Level V: Judicial Review §  Judicial Review in U.S. District Court § An individual has 60 days to file for a judicial review,

provided that at least $1,630 remains in dispute for appeals to Federal District Court (1/1/19).

§ May request that the appeal be escalated to Federal district court. Contact information for the Council can be found at: https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-council/index.html

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Reasons For Denial §  Lack of medical necessity §  Pt. had reached a level of function

where further therapy would not show any further improvement

§  No expectation that the patient’s condition would improve significantly

§  Per LCD “there must be an expectation that the patient’s condition will improve significantly in a reasonable period of time

§  Lack of sophisticated skills of a therapist

§  Not a reasonable duration or frequency

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The Medicare Benefit Policy Manual Chapter 15 Section 220: Coverage of Outpatient Rehabilitation Therapy Services (Physical Therapy, Occupational Therapy, and Speech-Language Pathology Services) Under Medicare Insurance

Therapy Benefit § Outpatient 220.1.4

§  Therapy Services are payable under the Physician Fee schedule

1.  A provider to its outpatients in the pt’s home 2.  A provider to patients who come to the facility’s

outpatient department 3.  A provider to inpatients of other institutions 4.  A supplier to patients in the office or in the patient’s

home 5.  Coverage includes therapy services furnished by

hospitals and SNFs to their patients who have exhausted part A benefit or not eligible for part A

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Therapy Benefit § Part B:

§  Payment can be made only for services that constitute therapy

§  In case where there is doubt, the contractor’s local coverage determination shall prevail

§  Must be reasonable and necessary

LCDs §  Local Coverage Determinations

§  Definitive polices §  www.cms.hhs.gov/mcd

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Other terms defined § Clinician / Therapist

§  Refers to registered therapist but not to an assistant or aide (Therapist = registered)

§  Make Clinical judgments and are responsible for all services they supervise

§ Qualified Professional §  PT, OT, SLP, MD, NP, CNP, PA §  PTA, COTA during the direct supervision of a qualified

therapist, working within their scope of practice in the state in which they provide services

Other terms defined § Assessment:

§  Separate from the evaluation §  Provided by clinicians §  Objective tests §  Determines status changes §  Judgment on progress

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Other terms defined § Certification

§  Physician's approval of the plan of care §  Must be signed and dated

§ Complexities §  Factors that influence treatment

§  Diagnosis code §  Age §  Severity §  Acuity

Other terms defined § Episode

§  Period of time §  Calendar days under the care of the clinician

§ Evaluation §  Payable separately §  Requires professional skills for clinical judgment §  Objective measurements §  Subjective evaluations of patient performance §  Functional abilities

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Other terms defined §  Interval

§  Certified Treatment §  90 calendar days or less §  Not the same as Progress Report period

§ Maintenance Program §  Established by the therapist §  Maximizes or maintains beneficiary’s progress made

while in therapy or to prevent/slow deterioration due to a disease or illness

Payable Conditions § Services required individual therapy services § Plan was established by physician/NPP or by the

therapist providing such services and is periodically reviewed by a physician/NPP

§ Services were furnished while the individual was under the care of a physician

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The following information is based on The Medicare Benefit Policy Manual

§  Your organization may have their own policy and procedure manuals that may be more strict

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Orders Section 220.1.1 § No Medicare requirement for an order § An order, when documented in the medical

record, provides evidence that the patient both needs therapy services and is under the care of a physician

§ The certification requirements are met when the physician certifies the plan of care

§ Orders should be signed within 14 days

Plan of care (POC) Section 220.1.2

§ Must be established before treatment is begun § The plan is established when it is developed

§  Ie: written or dictated § Services must relate directly and specifically to the

written treatment plan § Must be signed and dated by the writer § Must be signed and dated “as soon as possible”

by the physician/NPP or within 30 days

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Restrictions § Chiropractors may not certify or recertify plans of

care for therapy services § Optometrists may order and certify only low

vision services § Podiatrists must be consistent with the scope of

the professional services they provide

Contents of POC §  Diagnosis §  Long Term Treatment Goals

§  Should cover entire episode of care in setting §  Measureable and pertain to function

§  Type, amount, duration and frequency of therapy §  Type: PT, OT, ST §  Amount: number of times in a day §  Duration: number of weeks or number of tx. sessions §  Frequency: number of times in a week

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Examples of frequency/duration § Short term intensive treatment §  Long term and less frequent § Taper frequency

§  Ex: “Once daily, 3 times a week tapered to once a week over 6 weeks”

Changes to POC, continued § Therapist may not significantly alter a POC without

documented written or verbal approval of the physician/NPP §  Change in LTG would be a significant change §  Change in STG would not

§ Procedure changes §  Unchanged goals= do not require physician/NPP

signature §  Revision of LTG= requires physician/NPP signature

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Treatment § Evaluation and Treatment may occur on the same

day § Treatment begins when a plan is established § Treatment may begin before the plan is committed

to writing ONLY if the treatment is performed or supervised by the same clinician who establishes the plan

§ Payment for services provided before a plan is established may be denied

Reasonable & Necessary:

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Reasonable and Necessary § Services are not considered skilled just because a

therapist/assistant provided §  If a non-skilled person or a patient can safely and

effectively administer a task, it is not skilled § The unavailability of a competent person to provide

non-skilled services, does not make it skilled when a therapist performs the task

§ General activities for the good of patients (to promote fitness, flexibility, motivation) are not skilled

Reasonable and Necessary § Services provided that are not under a plan of care,

are not payable § Services provided by staff who are not qualified (or

supervised) are not payable

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Reasonable and Necessary Necessary to: §  improve a patient’s current condition §  maintain a patient’s current condition §  slow further deterioration of the patient’s condition

Reasonable and necessary requirements § Shall be considered under accepted standards of

medical practice to be specific and effective for the patient's treatment

§ Services are complex and required the sophisticated skills of a therapist

§ Services must be furnished under the supervision of a qualified professional

§ The beneficiary’s diagnosis or prognosis cannot be sole factor in deciding if a service is skilled or not. It must require the skills of the therapist

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continued § The amount, frequency and duration of the

services must be reasonable under standards of practice

Expectations of therapy § Address recovery, improvement in function,

restoration of prior level of function § Documentation is key § Objective measurements §  Justify continued treatment § Continued assessment and analysis §  Instruction for compensation § Training to family and patient

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Documentation Section: 220.3 Minimal expectations § Proof of skilled, provided by clinicians with the

approval of a physician/NPP, safe and effective § Evaluation and Plan of Care § Certification (approval of the plan) § Progress Reports § Treatment notes

Information to meet requirements § Services require the skills of a therapist

§  Expertise, knowledge, judgment §  Actively participate in the treatment with patient §  Document changes made to the treatment §  Document needs of the patient and how those needs

change and how you respond to those needs §  Document how you modify the treatment §  Document the complexity of the task

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Services are of appropriate type, frequency, intensity and duration § Document how these variables influence the

patient's condition § Carefully document the specific individual’s need

for especially longer durations or more frequent § Documentation should show evidence of progress § Documentation should note regressions and

plateaus §  Further documentation if you continue treatment after a

regression or plateau

Specifics to consider and document § Condition/ complexities § Age § Time since onset § Motivation § Cognition § Prognosis

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Evaluations § Documentation of the necessity § Objective findings § Subjective findings §  Impact of the conditions on the patient § Objective, measureable physical function § Anticipation of progress to premorbid condition §  *Specific and appropriate for the patient

Progress Notes § Minimal expectation: The “Clinician” is required to

write a progress note once at least every 10 treatment days (evaluations count as day 1 regardless if treatment is provided or not)

§ Assessment of improvement (or lack thereof) § Objective evidence / standardized assessments § Plans for treatment / revisions § Changes to STG or LTGs

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Treatment Note § Record of treatments / skilled interventions § Record of time of the services to justify billing

§  For both timed and untimed codes § Signature and professional identification

Discharge Summary § A discharge summary (or note) is required for each

episode of outpatient treatment § Covers the reporting period from the last progress

note § May also include:

§  Justification for services beyond those usually expected for the patient’s condition

§  Justification for the medical necessity

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Case Presentation

"Denial Deemed Non-covered by RAC Review"

• 75 year old female

• Chronic condition • Numerous other

sessions of PT • MS/exacerbation •  I with exercise

PLOF

• SOC: Sept 2013 • Denied: November • PT: 21 visits / month • 5 days/week • Neuro Re-ed, Ther

Act • ~$2300

PT Services Sept ‘13

• ADR Dec ‘13 • Pre-pay Letter:

Jan ‘14 • Not medically

necessary

Facts

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1st Level of Appeal • Medicare Redetermination Form

submitted July 2014 • Defended PT services were

medically necessary •  Included physician’s orders and

progress notes, H &P, labs, nurses’ notes and all therapy documentation

1st Level of Appeal: July ‘14

• Unfavorable • No progress or documentation

of changes in the goals •  Lack sophistication •  Restorative referral could have

been sooner •  Services repetitive

Decision: Aug ‘14

2nd Level of Appeal

• Medicare Reconsideration Request Form submitted

• Defended required the skills of Qualified Professional

• Submitted explanation by supervising PT

2nd Appeal: Sept ‘14

• Unfavorable • Not reasonable or

necessary • Did not require skills of a

therapist

Decision: Nov ‘14

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3rd Level of Appeal

•  Request submitted for Medicare Hearing by ALJ

3rd Appeal: Nov ‘14

•  ALJ Hearing

ALJ Oct ‘18 •  Decision by

OMHA

March ‘19

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Decision:

Fully Favorable

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Helpful Tips § Where do you find “acceptable practices?”

§  The Medicare Benefit Policy Manual §  Contractors Local Coverage Determinations §  State Practice Acts §  Guidelines and literature of PT, OT and ST professions

Helpful Tips § Chapter 15, 220.1.3 D

Delayed Certification §  Certifications are acceptable without justification for

30 days after they are due. §  Delayed certification should include any evidence the

provider or supplier considers necessary to justify the delay

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Helpful Tips § Reports written by assistants are not complete

progress notes § The Clinician is required to write the progress

report during each reporting period regardless of whether the assistant writes other reports

§  If a report is written by an assistant, the clinician may use the content to supplement their note

§ Objective measurements are preferred

Helpful Tips § Dates

§  Written, stamped or electronic §  Must be accurate §  Should be completed by physician §  Received dates are valid

§  “Received 2/2/19”

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Medicare bottom line: The deciding factors are always whether the services are considered reasonable, effective treatments for the patient’s condition and require the skills of a therapist, or whether they can be safely and effectively carried out by nonskilled personnel.

""Thank you! Questions?"

Kathleen Dwyer KasDwyer@gmail.com

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References §  CMS Publication 100-02, Medicare Benefit Policy Manual,

Chapter 1; Section 10.1 §  CMS Publication 100-02, Medicare Benefit Policy Manual,

Chapter 8; Sections 30.4; 50.4; 70.3 §  CMS Publication 100-02, Medicare Benefit Policy Manual,

Chapter 15, Section 220; pages 152-194 §  CMS Publication 100-08, Medicare Program Integrity

Manual, Chapter 3, Chapter 13

§  HHS Office of the Secretary, Office of Medicare Hearings and Appeals, & OHMA. (2019, January 08).Retrieved from https://www.hhs.gov/about/agencies/omha/index.html

§  Index. (2019, April 24). Retrieved May 26, 2019, from https://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medicare-FFS-Compliance-Programs/Recovery-Audit-Program/Index.html

§  Medicare Claims Processing Manual, Chapter 5 §  Medicare Parts A & B Appeals Process. (2018, October).

Retrieved from https://www.cms.gov/outreach-and-education/medicare-learning-network-mln/mlngeninfo/index.html

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§  Overview. (2019, May 16). Retrieved May 26, 2019, from https://www.cms.gov/Medicare/Appeals-and-Grievances/OrgMedFFSAppeals/index.html

§  Overview. (2019, March 07). Retrieved from https://www.cms.gov/Medicare/Appeals-and-Grievances/MMCAG/index.html

§  Overview. (2018, December 21). Retrieved from https://www.cms.gov/Medicare/Billing/TherapyServices/index.html