Pre-Claim Review by CMS and its contractors is intended to change the face of Home Health

CMS has announced changes to its claim processing for Illinois, Florida, Texas, Michigan and Massachusetts.  The Demonstration is called Pre-Claim Review.  It will change your world.  Pre-Claim Review (PCR) is scheduled to begin in Texas on or around December 1, 2016.  It is slated to last 3 years.

The Texas Association for Home Health and Hospice has called for its members (and anyone else who will) to call your congress person and insist that he/she stop the pre-claim review process because it will slow or cease home health patient access to care.

For those of you who have been subject to the recent ADR project, this is the ADR project on a long term extended release steroid.

CMS cites the increase in home health billing errors from the 17% percent in 2014 go over 51% in 2015.  Pre-Claim Review is not prior authorization, nor is it ADR or prepayment review.  The review of the paperwork comes before the HHA can submit the final claim and receive payment, and the review can come anytime after the client has been placed on service, even after the end of the episode.  Therefore, like an ADR for a final claim, you will have provided the services prior to getting approval for the submission of the final claim.  It is more a prior authorization for billing.  The permission given by CMS is to allow the HHA to submit its final claim.  Therefore it is not a pre-payment review, but a pre-submission review for permission to submit the final claim.  The claims will be paid as usual, but you can’t submit the final claim without the approval.

While the documentation requirements are not being changed for home health, you should be aware from your experience with the ADR project that claims are being denied for not having the appropriate paperwork anyway.  Home Health has always been highly regulated, and will now  be highly technical regarding the paperwork you must present.

If your agency submits paperwork that is not approved, your agency will have a couple of options, either correct and resubmit the paperwork (up to an unlimited number of times), or appeal the denial and go through the administrative process of Medicare.  Those of you who have been through the Medicare appeals process know how very long that can take.

CMS maintains that the no beneficiary will have his or her access to home health restricted in any way.  I expect that is correct at first.  If CMS and its contractors stall out of the gates as sometimes occurs when demonstration projects are kicked off, if provider’s submission permission for final claims are delayed very long (remember, this is not a delay in payment, but a permission vehicle for the HHA to submit its final claim) beneficiaries may have to change providers often, even though their access to care is not restricted.

There is still time for getting your agency shaped up prior to the beginning of the demonstration.

Face-to-Face documentation from the Physician is a good idea to have in Home Health Charts

When CMS requests an ADR from your home health agency, the contractor may deny the documentation supports the services due to its failing to contain the proper Face-to-Face documentation. 

We have seen the contractor deny claims based on a failure to locate the F2F documentation.  However, the contractor is probably able to find your physician’s attestation, which is a typical part of your home health chart notes.  More likely is that the denial is based on the lack of the physician’s own notes from the Face-to-Face encounter made by the physician within the time frame set forth by CMS, whether for certification or recertification.

CMS contractors make it the Home Health Agency’s responsibility to offer proof that the certifying physician’s medical record for the patient contains the actual clinical note for the Face-to-Face encounter visit.  This doctor’s office note will be the only proof that the encounter occurred in the required time frame, and was related to the primary reason the patient requires home health service.  And the information in the doctor’s clinical note is the basis for the certification for the home health services.   Therefore, without the notes, the services are not properly certified.

While 42 C.F.R. §424.22(c) requires the certifying physicians to provide, upon request, the medical records documentation that supports the certification of patient eligibility for home health, the contractor is not requesting the documentation from the physician.  Because that documentation is the only documentation that will show the encounter was made in the required time frame and was related to the primary reason the patient requires home health services, it is a good idea for the Home Health Agency to make those records available in their own charts when that chart is reviewed in an ADR or prepayment review situation.

CMS issued a hint that the documentation is essential in MLN Matters number 1436 Special Edition.  After going over home bound status and general home health requirements, the Supporting Documentation on page 5 includes the information that must be contained in the physician’s records.  However, the ADR process seems to hold the liability for the physician’s records on the home health agency submitting additional documentation.

Therefore, to prove the beneficiary is eligible, the physician’s notes must meet the requirements of the regulation.  But if the contractor isn’t going to request the notes of the physicians, payment won’t be made without them it seems. 

Sending your Home Health notes to the physician’s office is not enough either.  The physician must review and sign the note in order for it to bolster the certification made by the physician.   See MLN Matters 1436 Special Edition.  CMS includes examples at the end of the article that will give you a template for your documentation.

Record Retention

Often, we receive a call from a provider who asks, “how long do I need to keep my records?”

As you can guess, it would be a management nightmare to keep only the Medicare claims for one period of time and Medicaid records for another, commercial insurance for another length of time, HMO and MCO for other lengths of time, and then private pay records for yet a different length of time.

Therefore, to avoid errors, you keep your records and patient charts for the longest period required of your payer mix, right?

Right.
 
And that time period gets longer and longer.  Our firm recently reviewed a contract for a Home Health and DME provider that required records to be kept 10 years. Therefore, make certain you check all your payer sources for the time period records must be kept.  This was a Medicare MCO plan, but the plan administrator wrote into the contract a time period much longer than Medicare records are typically kept by providers. If record destruction is part of your regular business process, do not push the “shred” button too soon.

You are shredding them, aren’t you?  The PHI (protected health information) contained in those records is HIPAA protected and the destruction process must ensure that information is not disclosed.  There are many shredding companies that will shred on site rather than taking the documents back to their warehouse for storage and shredding. 

Limitation on Physician Signatures who have a financial relationship with the HHA

If a physician has a financial relationship with a HHA, that physician is limited , and may not sign plans of care, certifications, or recertifications unless the financial relationship meets certain exceptions.

The exceptions are found in 42 C.F.R. §411.355-§411.357.  These exceptions are very similar to the Anti-kickback exceptions and will allow a medical director to furnish medical director (personal services) services to the HHA.  However, the exception has several prongs, and if you fail to meet them all, any signature your medical director puts on a plan of care, certification, or recertification, may be void, and ultimately, the payment for the home health services provided under that void certification or void plan of care will also be void, and CMS will request the repayment of it.
Before you accept your medical director’s signature on a Plan of Care, a certification or recertification, make certain your medical director’s signature will not be void due to the financial relationship he/she has with your agency. 

In MLN Matters 1436 Special Edition, CMS plainly states that the face-to-face encounter cannot be performed by any physician or allowed Nurse practitioner who has a financial relationship with the HHA.  CMS mentions no caveats or exceptions in this part (page 4), and references section 424.22(d)(2) which is the regulation prohibiting a nurse practitioner from completing any form a physician would not be allowed to complete.  While it might be a stretch to go from disallowing a nurse practitioner’s signature to disallowing the physician for the same (d)(2) section, CMS does not equivocate when prohibiting the physician’s signature on the face-to-face form if the physician has a financial relationship with the HHA.

This MLN Matters 1436 does not except when the physician with the financial relationship is performing the F2F for his/her own patients. This prohibition would curtail any physician, PA, or NPP from performing the F2F if the physician has a financial relationship with the HHA.

Understanding Litigation

LITIGATION INVOLVES A SERIES OF STEPS THAT MAY LEAD TO TRIAL

LITIGATION: An action brought in court to enforce a particular right.  The act or process of bringing a lawsuit in and of itself; a judicial contest.

THE PROCESS
A lawsuit, whether filed in civil court or criminal court, is ultimately a process.  Typically, the process is called litigation, and it allows those involved to establish facts and determine whether certain claims can be supported or not before moving to a settlement, or if no agreement can be had between the parties to the lawsuit, taking the case to trial.

BEGINNING THE PROCESS:
In both criminal and civil litigation, the process begins by one side (there can be several “sides” to a lawsuit, and each is called a “party” to the suit, but it will usually be the Plaintiff in civil lawsuits and typically the State in criminal lawsuits) filing paper complaining of the actions or inactions of the Defendant (or Defendants, those defending against the claims).  Once the filing is made, and the filing fee paid (or fees waived due to the indigence of the Plaintiff) the Plaintiff or the State must deliver to each Defendant a copy of the complaint documentation, and the Defendant must answer to the Court.  In the criminal context, a Defendant is typically served the complaint paperwork by local law enforcement agents, who bring the Defendant (often under arrest) to the court to answer to the Court.  In civil litigation, the Defendant merely files paperwork with the court to answer the lawsuit.

DISCOVERY 
Surprise is frowned upon in litigation, so there is a process that allows the parties to “discover” things about each other’s assertions.  This Discovery process, as it is known, allows each side to discover, and consider the strength of their evidence, and of the other side’s evidence, determine whether there is enough evidence to support the claims that have been made, and whether either side should continue with the lawsuit to the presentment of the case to a Judge or Jury at trial. 
Discovery encompasses the taking of statements of certain individuals, the exchange of documentary evidence, and the presentment of questions in writing to be answered by the other side.  Anything any party wants to use before in Court must be exchanged with the other parties ahead of time, or it may be barred.  

EXPERT WITNESSES
If additional support is needed by either side to explain a highly technical or unusual process, event or result, litigation allows for an expert witness to explain to the judge or jury something that might be well outside the knowledge base for the person (judge) or persons (jury) deciding the case.  It is unlikely that a veterinarian would be needed as an expert witness to explain how we get eggs, but a physics expert may be required to explain how the force exerted by a certain piece of equipment caused the property damage complained of when that equipment failed. 

MOTIONS
Motions are written or oral requests made to ask the judge make a ruling.  Some motions request the judge make a ruling that ends the lawsuit.  These are known as Motions to Dismiss, or Motions for Summary Judgment.  If the judge grants the Motion to Dismiss, or the Motion for Summary Judgment, the case is completed for that issue.  Other motions deal with only a narrow issue, such as the production of certain documentation requested in Discovery.  The judge’s decision doesn’t necessary alter the course of the lawsuit, however such a ruling may very well cause one side or the other to pause and reconsider the position taken. 
 
ALTERNATIVE DISPUTE RESOLUTION
Alternative Dispute Resolution (often referred to as ADR) is an out of Court option for parties to a dispute.  ADR can occur before a lawsuit is filed, while a lawsuit is in process, or after a judgment is rendered.  There are two common types of ADR.

ARBITRATION:  In many instances, especially when relationships are made through contract, the contract will require that the parties to the contract waive the right to a trial in Court, and disputes related to the contract can only be heard in Arbitration.  The Arbitration process differs from Litigation because Arbitration is not generally a public forum.  What goes on in the Arbitration is not available to the public without further agreements between the parties.  Arbitration is favored by companies, often, for that reason.  The Arbitration process is similar to that of Litigation, and the processes can be foreshortened or altered by agreement of the parties.  Ultimately, the Arbitrator, who holds the position of judge in arbitration, makes the ultimate decision about the dispute.  Sometimes there is a single Arbitrator, and sometimes a panel of three that decide the issues in dispute. 

MEDIATION:  Mediation or Settlement Conferences allow the parties to meet with a neutral “mediator” and work out the disputed issues with solutions agreed upon by the parties, and not imposed by a “trier of fact” like in Court (judge or jury) or in Arbitration (single or panel of arbitrators).   Often the parties to a dispute meet together and explain the case from their perspective.  Sometimes the parties remain together to try to reach a settlement.  Other times, the parties separate at some point and the mediator will visit with each to see whether creative solutions might be reached.  The mediator can attempt to persuade, but has no authority to impose any solution that might be available.  Often, each sides gives up something to achieve settlement.  Yet, in settling, the parties choose to give that up, rather than have the judge or jury decide that for them.  

TRIAL
Each party has the opportunity to question potential jurors, if a jury trial is held, and after the jury is selected, may put on evidence, examine witnesses, cross examine witnesses of the other parties, use demonstrative devices to help explain the issues, and make argument to the judge and/or jury.  The Plaintiff or State goes first, and once they have rested, or finished with their case, the Defendant or Defendants get to put on their case.  Once all parties have finished presenting their cases, the jury begins deliberations.  The jury and judge are given a series of questions to answer (the charge) in order to formulate the end result (verdict).  The verdict becomes the judgment once the judge approves it, and this begins the “post trial” activities.

POST TRIAL
After trial, the parties have rights to file certain requests of the trial court, to reconsider the verdict, point out errors that would negate the verdict, and the like.  The Trial Court has a certain amount of time to receive such requests or motions.   Once the request or motions are ruled on by the Trial Judge, the parties must act accordingly.  If errors are pointed out that reverse the verdict, the judge may grant the loser a new trial.  If so, another trial will be held.  If the judge does not grant any motion that results in a new trial, the matter may be Appealed to the appellate court in that jurisdiction.  The appellate court process is primarily a motion process where the parties draft written briefs to explain the errors, or correctness, of the decision from the court below.  Sometimes the appellate court will order the parties to argue their briefs if the appellate court requires more information or needs to ask questions of the parties to clarify positions taken.  There is second level of appellate court in some jurisdictions, but review may be discretionary, or limited for certain parties.     

U.S. Supreme Court Declines Review: Minimum Wage & Overtime Rule Upheld

The Department of Labor’s (DOL) final rule on the Home Health Aide/Companionship Services minimum wage and overtime exemption became effective January 1, 2015.   The final rule revised 1975 Fair Labor Standards Act (FLSA) regulations in response to changes to the home care industry and workforce.  The major effect of the final rule was to include domestic service workers under the FLSA’s minimum wage, overtime, and record-keeping provisions.  No longer would third-party employers of home health workers, such as home healthcare agencies, be able to claim the exemption. 

The rule was challenged in federal court by associations of home care companies, and orders were issued to vacate the rule’s third-party provisions and revised definition of companionship services.  The DOL then appealed the orders to the D.C. Circuit, and it prevailed.  On June 27, 2016, the U.S. Supreme Court denied the associations of home care companies’ request for certiorari.  As things currently stand, the DOL is now poised to enforce compliance of the final rule which is affirmed based on the D.C. Court’s decision.

Regardless of the FLSA’s final rule, LVNs and most other hourly employees must get time-and-a-half pay for work over 40 hours over seven consecutive days.  A “per visit” home health rate must translate into hourly pay and comply with the overtime law; time for notating medical records and driving to patient's homes must also be compensated.

Overpayment Recovery Across Shared Tax ID Numbers Put Into Action

Section 1866j(6) of the Social Security Act gives the Secretary the authority to make “any necessary adjustments” to the payments of a healthcare provider who shares a tax identification number (TIN) with a provider that has an outstanding Medicare overpayment.  Regardless of a provider’s NPI or PTAN billing identifier, if provider “A” shares a TIN with provider “B” the law allows the Secretary to offset “A’s” overpayment against “B’s” payments.

While the statute is nothing new, because of a new and improved capability to track and capture Medicare payment analytics, CMS has made it clear that it will begin using Section 1866j(6) authority to increase the recovery of overpayments.  See MLN Matters Article, SE1612, issued in June 2016.  CMS has enhanced its financial accounting system and it will recover payments made to any provider that shares the same TIN with a provider that has an outstanding Medicare overpayment across multiple states within a Medicare Administrative Contractor (MAC) jurisdiction.

Handguns and Healthcare

As you most likely are aware, Texas is now an open carry state. That means that anyone that possesses a handgun license can legally carry the gun openly. Openly here means that it is not concealed. It does not mean that someone can start waving the gun around saying, "look at me I am carrying a gun." Doing that will most likely invite a conversation with police officers.

Handgun owners can be prevented from entering your private place of business so long as proper notice is given. You have seen signs posted in various businesses prohibiting the carrying of concealed handguns in certain establishments. If the sign meets the Texas requirements for such notice, you have done what you need to do in order to prohibit the concealed handgun from being carried on your agency’s premises. The sign applies to all who might bring a handgun onto the premises. Not just guests, but employees as well.

Please review Texas Penal Code sec. 30.06 which gives the specific requirements for the Signs. The type must be a certain height and be a certain type style and be displayed in a certain manner and in a particularly conspicuous way.

Dallas

We will not be posting a full article today due to the tragic events that have occurred in our hometown of Dallas. If you would like to read an article, please review the wonderful posts that have been written previously. Thank you for reading.

What Can Medicare Providers Expect from CMS's Recovery Audit Contractor Programs

The Centers for Medicare and Medicaid Services (CMS) created the Recovery Audit Contractor (RAC) program to identify potential Medicare overpayment and allegedly, underpayments.  The types of claims that will be selected for review are unpredictable, but claims for inpatient hospital services have been known to receive more auditing than other types of claims.  However, the potential for RACs to expand into different areas is more than likely due to the government's recent initiative to step up enforcement. 

Providers and attorneys representing providers and suppliers in RAC appeals should keep in mind that RACs are compensated by a contingency fee based basis, and therefore a bias automatically exists in the system.  Providers and their attorneys should address this bias by going through the formal administrative appeals process that involves five levels, i.e., redetermination, reconsideration, a hearing before an administrative law judge, a review by the Medicare Appeals Council if necessary, and finally, judicial review in a federal district court.

The RAC program has been hitting providers in Texas so concern over potential RAC auditing activity should be considered.  In anticipation of a RAC audit, providers and suppliers can begin efforts to understand audit defenses and setting aside resources to defend against these audits.

The Importance of Notification

When a physician or other licensed practitioner leaves a state in which he/she is licensed and plans to move the practice to another state, often, the state license no longer used by the practitioner is merely allowed to expire.

When that occurs, the licensing Board does not know whether you simply forgot to renew your license, or whether you have discontinued your practice. Some states licensing boards think the practice of merely allowing your license to expire is a sanctionable offense and require either an agreed/consent order and/or a report in the NPDB, sometimes years after the fact. 

Therefore, if you plan to leave a state to practice in another state, before you allow your license to merely expire because you have no plans in the future to return to your former practice,  please talk your licensing Board first. While that practice may be fine in some states, it is frowned upon and sanctionable conduct in others. 

And for you overachievers who have more than a single license in any particular state, you should speak to all your licensing boards before allowing any of your licenses to expire. Many Licensing Boards regard sanctions from other boards as grounds for their own sanctions, and the snow-ball effect may adversely affect your ability to practice in any state in which you are licensed.

Practical Steps To Keep The Money Flowing

          As health care fraud and the Medicare Trust Fund have become a growing national concern, the Centers for Medicare and Medicaid Services (“CMS”) has aggressively carried out its mission to ensure Medicare payments to medical providers and suppliers are proper.  Consequently, in today’s health care arena, it is essential for all medical providers to understand the importance of maintaining complete and accurate medical record documentation to support its claims for proper Medicare reimbursement.  Equally important is knowing how to effectively work with CMS and its fiscal intermediaries in avoiding payment interruption. 

            This article discusses tactics durable medical equipment suppliers can use to keep the money flowing when faced with Medicare payment interruption.  They include negotiating adjustments to the percentage withheld, “fixing” the problem that resulted in overpayments, negotiating extended repayment plans, and negotiating a compromise or waiver of overpayment claims.

Adjusting the Percentage Withheld

            Notwithstanding a provider’s right to appeal an overpayment determination, CMS may recover the amount owed by interrupting Medicare payments to the provider before the appeal is adjudicated.  Indeed, CMS and its fiscal contractors have the authority to “stop” Medicare payments with little or no notice to a provider because of an overpayment or the suspicion of fraudulent billing.  Although the authority for interrupting payments has proven very effective for “protecting” the Medicare program, it can have devastating financial consequences for a provider. 

            Recoupment, suspension and offset are tools used by CMS to collect overpayments from providers.  CMS can “recoup” an overpayment by reducing present or future Medicare payments and applying the amount withheld to the indebtedness.  When it believes there may be an overpayment or suspects fraud, CMS can “suspend” payments to the provider while it conducts its investigation into the propriety of the payments.  A non-Medicare debt, for example a Medicaid overpayment, may be recovered by “offset” through reducing present or future Medicare payments and applying the amount withheld to the indebtedness.  Distinctions between the type of recovery techniques are important, especially when the provider files bankruptcy.

           

            CMS is aware that payment interruption can result in hardship, possibly even causing bankruptcy.  Fiscal contractors are instructed by CMS to take into consideration its impact on the provider’s continued ability to deliver care to Medicare beneficiaries when imposed to collect an overpayment.  Depending on the basis for its imposition, CMS or its fiscal contractors may be willing to adjust the percentage of suspended Medicare payments. 

             Most healthcare providers simply cannot survive the interruption of all Medicare payments for an extended period of time.  CMS authorizes fiscal contractors to adjust the amount withheld from the provider’s payments when the suspension will cause “irreparable harm.”  Medicare guidelines indicate that contractors may withhold as little as 20% of Medicare payments.

            Negotiating an adjustment to suspension is not easy because such arrangements are at the discretion of the government.  CMS considers a variety of factors in making the adjustment.   The most important are the provider’s financial status, willingness to cooperate, past record in repayment of overpayments and percentage of Medicare beneficiaries in the provider’s patient population.  Of course, CMS may not be willing to adjust recoupment or suspension when fraud or misrepresentation is suspected.

“Fixing” the Billing Problem

            Payments are frequently suspended when the provider is overpaid, even though the actual amount of the overpayment has not been determined.  An effective strategy for addressing payment interruption in this context is to attempt to persuade CMS that whatever caused the overpayment has been “fixed.”  By eliminating the billing problem resulting in the overpayment and making arrangements for its repayment, CMS may be willing to “lift” the suspension.

            The provider must identify and correct the billing mistakes causing  the overpayment.  CMS and its contractors unfortunately do not explain in any meaningful detail what kind of billing errors actually may have caused the overpayment.  The problem lies with CMS’s assumption when “policing” the Medicare program that the provider is guilty until proven innocent.  Indeed, many times the government has concluded based upon some indication of billing error that the provider intended to defraud the Medicare program. 

            If CMS is convinced that the provider is fraudulently billing the Medicare program, it is unlikely to believe that the provider can “fix” the billing problem.  The provider should offer to conduct an internal audit of its Medicare claims and billing practices to identify mistakes or other irregularities that may have caused the overpayment that resulted in suspension of payments.  Again, CMS is not always receptive to such offers.  But if the provider has credibly investigated the matter, identified the problem CMS was concerned about, and taken appropriate remedial or corrective action to eliminate future mistakes, a lengthy government investigation may be shortened because of the provider’s proactive efforts.  More importantly, the matter may be resolved as an overpayment, not a fraud investigation.

            In cases of suspected fraud or willful misrepresentation, CMS generally makes the determination whether to suspend after consultation with the Inspector General, the fiscal contractor, and interested law enforcement agencies.  Negotiations can be difficult in this context because CMS or its fiscal contractors are acting as a quasi-prosecutor to protect the Medicare program and will treat the provider as a criminal being investigated.  In such circumstances, CMS may be unwilling to discuss the nature of the billing problem causing the overpayment to avoid tipping its hand by identifying the “fraudulent conduct” thus jeopardizing any chance of prosecution.  Consequently, a problem frequently encountered by providers is a failure to receive adequate notice of the basis for suspension. The notice is supposed to give the “reasons for making the suspension.”  Often it merely recites the grounds for invoking suspension under the regulations, but it does not explain the reasons for imposing suspension in a particular case.  Thus, the provider may be faced with the impossible task of rebutting general conclusory allegations when CMS has given absolutely no factual basis for their support.

Extended Repayment Plans

            Once an overpayment has been determined by CMS or its fiscal contractors, the amount is a debt owed by the provider to the United States.  The Federal Claims Collection Act requires timely and aggressive efforts to recover overpayments.  CMS is responsible for collecting Medicare overpayments.  Fiscal contractors, as agents of CMS, are also responsible for recovery of overpayments.  A provider is expected to repay an overpayment as quickly as possible.  Unless immediate arrangements to repay the overpayment are made, the government will initiate recoupment to recover the debt.

            When a fiscal contractor notifies the provider of an overpayment, it typically gives three repayment options.  The provider may remit a check for the full amount of the overpayment.  It may dispute the overpayment by submitting documentation that demonstrates an error in its determination.  Or, it can request an extended repayment plan.  Recoupment will automatically begin fifteen (15) days after the determination and result in withholding 100% of Medicare payments to recover the debt.  If the provider submits a fully documented repayment request and begins making payments, recoupment will ordinarily not be initiated unless the proposal is rejected.  The repayment request must be in writing and include specified times and amounts of repayment.     

            Medicare guidelines state that if a provider cannot repay an overpayment within 30 days after receiving demand for payment, it may request a repayment schedule.  Generally, no extended period of recovery will exceed 12 months from the date of the first demand letter requesting payment.  Thus, overpayments typically  must be repaid by the provider within 12 months of the initial demand for payment.  However, if a provider demonstrates that repayment within a 12 month period would create “extraordinary financial hardship,” it may request a longer period for repayment.  Approval of an extended repayment is at the discretion of the government.  And, such requests are only approved when CMS determines that it would “benefit the program.”

Compromise or Waiver of Overpayment Claims

            Forcing a provider out of business and into bankruptcy under the guise of collecting an overpayment is an unconscionable abuse of power.  Often the cessation of Medicare payments only ensures failure of the provider’s business and guarantees that CMS will recover only a fraction of the overpayment.  Yet, it is within the discretion of CMS to reject other repayment alternatives and recoup or suspend payments to ensure recovery of a Medicare debt, even when the payment interruption may prevent the provider from repaying the full overpayment.

             CMS may reduce the debt or suspend or terminate collection action on its recovery.  In situations where CMS concludes that an overpayment cannot be repaid in a reasonable period of time, it can reduce the liability so that the provider can pay at least a substantial part of the debt.  A basic condition for use of the compromise authority is that there is no indication of fraud or misrepresentation.

            Negotiating a compromise of the debt can be difficult.  Despite the authority to reduce a debt, it is an unwritten CMS policy that no repayment plan can be authorized that will not result in full recovery, including principal and interest, of the debt due the Medicare program.  The provider must be persistent and persuade the government it is better to recover something than to collect but a small fraction of the debt by stopping payments to the provider.  However, if CMS believes that the provider has no present or prospective ability to pay an existing overpayment in a reasonable time, it may be willing to compromise the amount of its overpayment claim.

Conclusion

            As healthcare fraud continues to be big news, and the public fears collapse of the Medicare Trust Fund, the government will continue to take full advantage of the overpayment recovery tools at its disposal.  Aggressive use of recoupment and suspension has proven effective for “protecting” the Medicare program.  But it can have devastating financial consequences for the provider as well.  Payment interruption can often be avoided or at least effectively managed if the provider is aware of the formal remedies available for challenging such actions and the practical steps to take to keep the money flowing.