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    Recently Answered Questions

    9/30/2020

    Q: “What are the steps / process to submit contracted payer’s for Medicare Advantage plan denials up to ALJ after the payer denies the inpatient medical necessity and first and second appeals?”

    A: Medicare Advantage patients are, in most respects, more like private pay patients than Medicare. While there are some exceptions, for the most part traditional Medicare rules do not apply to Medicare Advantage patients.  The traditional Medicare appeals process is also inapplicable.

    When you are contracted with the Medicare Advantage plan, your appeal options are limited to whatever is stated in your contract. Generally, there is no opportunity to go to an ALJ hearing after you have exhausted your internal appeal rights, meaning your rights to appeal to the plan according to your contract.

    You may have an option to appeal to external review with an independent review organization. You will need to check with your state’s insurance commission board to determine if that is an option. Some states allow only patients to take appeals to external review. Some states allow patients and providers to appeal to external review.

    For providers in the states that allow only patients to appeal to external review, some providers have opted to act as the authorized representative of the patient. That means the provider has to complete specific paperwork to file an appeal on behalf of the patient. The provider must appeal on behalf of the patient starting with the first appeal. In other words, a provider cannot submit appeals through the internal appeal process on their own behalf and then decide to appeal to external review on behalf of the patient.

    Answered by:

    Denise Wilson, MS, RN, RRT • AHDAM President
    Senior Vice President Denial Research Group

    Denise is a Registered Respiratory Therapist, Registered Nurse, and holds a Master’s degree in Management Information Systems from the University of Illinois, Springfield. Denise has over thirty years of experience in healthcare, including clinical management, education, compliance, and denial and appeal management.
    Denise is a nationally known speaker and dynamic educator on Medicare and Commercial appeals processes, payer behaviors, standards of care, appeal template development, and building a road map to drive the payer to a decision in the provider’s favor.

    7/6/2020

    Q: “Our Skilled Nursing Facilities have utilized the Covid-19 waivers during the pandemic. To be proactive for any future audits that we would receive, do you think that we would be required to have any additional documentation in our record to substantiate the waiver besides noting that providers should document the rationale for applying the waiver? Are there any other documentation or certifications needed to be maintained in a file besides normal SNF skilled level of care coverage guidelines to support an in-patient skilled level of care as defined in Chapter 8, Section 30 of the Medicare Benefit Policy Manual?”

    A: The most important thing to consider is that specific waivers and instructions are changing really quickly. It is important to have a saved electronic or paper version of them, along with the dates that the waivers were in effect. One needn’t enter in a medical record “this was done because of this waiver” but having the ability to recreate what waivers were in effect and when is important, and challenging because government documents have often changed without including dates in a way that allows a person to know when a particular rule was in effect.

    Answered by:

    David Glaser, Esq.

    Attorney at Fredrikson & Byron, P.A., Minneapolis, MN

    David helps clinics, hospitals, and other health care entities negotiate the maze of health care regulations, providing advice about strategy, reimbursement and compliance. David is a shareholder in Fredrikson & Byron’s Health Care Group and co-founded its Health Care Fraud & Compliance Group. He has considerable experience in health care regulation and litigation, including voluntary disclosures, criminal and civil fraud investigations, overpayments and reimbursement disputes.

    David’s goal is to explain the government’s enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a frequent guest on RAC Monitor’s “Monitor Mondays,” and you may read his Blog at Orthopedics Today. He has given speeches in 36 states.

    A: I would not muddy the medical record with the rationale used to align with waivers and such. Document only rationale for treatment and care in the medical record. Compliance and/or Revenue Cycle Integrity seems the likely place to own the rationale for why care was delivered and how it was supported due to waivers and timeframes. Then, when you write the appeal, reference the waiver rationale that the Compliance/Revenue Cycle owns.

    Answered by:

    Taryn Schraad, RHIA, CPMA

    Health Care Compliance, Sr. Consultant, PYA, P.C., Overland Park, KS

    Taryn has over a decade of experience helping healthcare organizations capture accurate and comprehensive documentation in clinical and revenue cycle workflows in compliance with regulatory standards. As an RHIA, Taryn builds strong relationships with clients’ clinical, coding, and billing departments to improve the payment and charge/data processes. Taryn has supported hospitals as an internal auditor, new service coordinator, and chargemaster senior analyst.

    Archive

    I’ve found the best arguments in these cases are contained in the Code of Federal Regulations (CFR) and in policies set forth by the National Committee for Quality Assurance (NCQA) and URAC (remembering that NCQA and/or URAC certification is necessary for the insurers to participate in providing Medicare and Medicaid plans).

    I would point to two paragraphs contained within NCQA (which comport with various federal laws regulating insurance).  The exact arguments to be made will depend on the type of the plan – ERISA governed, ACA issued, Medicare Advantage and Medicaid.  All are governed by the Code of Federal Regulations – though at different chapters.

    By way of example, 42 CFR § 438.114 – Emergency and post stabilization services states:

    Emergency services means covered inpatient and outpatient services that are as follows:

    (i) Furnished by a provider that is qualified to furnish these services under this Title.

    (ii) Needed to evaluate or stabilize an emergency medical condition.

    Also,

    (3) The attending emergency physician, or the provider, actually treating the enrollee, is responsible for determining when the enrollee is sufficiently stabilized for transfer or discharge. That determination is binding on the entities identified in paragraph (b) of this section as responsible for coverage and payment.

    NCQA Regulations add the following arguments that could be applied to the question at hand.

    Nationally developed procedures for applying criteria, particularly those for length of hospital stay, are often designed for “uncomplicated” patients and for a comprehensive delivery system; they may not be appropriate for patients with complications or for a delivery system with insufficient alternatives to inpatient care. Written UM procedures direct decision makers to alternative procedures or approaches (e.g., a secondary set of UM criteria and individual case discussions) when assessment indicates that UM guidelines are not appropriate.

    The organization’s policies and procedures require coverage of emergency services in the following situations:

    1. To screen and stabilize the member without prior approval, where a prudent layperson, acting reasonably, would have believed that an emergency medical condition existed.
    2. If an authorized representative, acting for the organization, authorized the provision of emergency services.
    3. To provide post-stabilization care services for the member.

    (Remember as to #1 above that stabilization of an emergency medical condition can occur in the ICU and as an inpatient.  Just because a patient was admitted to the ICU or inpatient does not mean that their emergency medical condition was stable. Only the attending physician can determine when the patient’s condition has “stabilized,” and in the case of Medicaid (set forth above), that decision is binding on the insurer.

    Generally, some combination of argument from one or both resources set forth above will address most acute care insurance denials – no authorization and denials of care using IQ/MCG.

    Answered by:

    Kendall Smith, MD
    Chief Physician Advisor, Denial Research Group/AppealMasters

    Dr. Kendall Smith is a Senior Fellow in Hospital Medicine (SFHM) and currently acts as Chief Physician Advisor for AppealMasters, a leading appeal educator and appeal services firm for hospitals and health systems. He’s been deeply involved in denial and appeals management throughout his hospitalist career, working collaboratively with UR/Case Management departments as well as Managed Care and Hospital C-Suite executives.
    His familiarity with managed care denials led him to design and implement a number of CDI programs, including those at the Cleveland Clinic in Florida and the MedStar Washington Hospital Center. He has served as a physician leader on hospital revenue cycle management teams while also serving as a the Physician Advisor for Clinical Resource Management. Dr. Smith is also an AHIMA ICD-CM/PCS approved trainer/ambassador.

    Left untreated sepsis can progress to severe sepsis and septic shock quickly. There is no single test that can diagnosis sepsis. Healthcare practitioners evaluate several tests and the patient’s clinical condition to make a sepsis determination and detect inflammation. Providers should determine which evidenced based medicine criteria tool they will use to diagnosis and triage sepsis, and define their protocol to meet that criteria. A defined protocol and process helps both Clinical Documentation Specialists (CDS) and providers align on the clinical indicators that support a sepsis diagnosis, reduce query fatigue, and provide appeal support language. Providers may also order any medically necessary lab tests such as serum lactates or blood gases to support the use of diagnosis code A41.9.
    A sepsis diagnosis is a clinical judgement that doesn’t always fit all the right pegs of a payer’s requirements. When participating in a peer-to-peer with the payer or writing an appeal, lay out the protocols your institution follows that supports your clinical judgement, cite the evidence based medical criteria sources, and focus on the key clinical indicators for making a sepsis diagnosis. Be prepared to defend your practices in appeals court.

    Answered by:

    Taryn Schraad, RHIA, CPMA
    Health Care Compliance, Sr. Consultant, PYA, P.C.

    Taryn has over a decade of experience helping healthcare organizations capture accurate and comprehensive documentation in clinical and revenue cycle workflows in compliance with regulatory standards. As an RHIA, Taryn builds strong relationships with clients’ clinical, coding, and billing departments to improve the payment and charge/data processes. Taryn has supported hospitals as an internal auditor, new service coordinator, and chargemaster senior analyst.

    If timelines for requesting and responding to peer-to-peer discussions is not defined and enforced in your MA contract, then a short-stay inpatient admission may be downgraded to an observation level of care. Within the first few hours a provider may determine the patient’s condition warrants an IP level of care, the request to the MA is made for an IP authorization number. The MA issues a denial and by the time a peer-to-peer request transpires the patient has discharged. The delay seems to always favor the payer’s position and this scenario is all too common.

    Consider tracking and trending the timeframes for request and response rates. Discuss the discrepancies with your payer representative. Come to a compromise and a mechanism for conducting peer-to-peers timely. If timeliness continues to be a problem, get the timelines and processes outlined in your MA contracts. Consider language that defines the number of hours (not days) the MA must determine and assign an authorization number to your case. Include language that denied IP authorization numbers may convert to observation status numbers when appropriate. State time limits for peer-to-peer requests to be completed and enforce reporting and corrective actions as it relates to contractual violations. The best way to thwart or defend denials is to focus on good documentation up front. Add to that a rigorous denials management process that addresses denials with a holistic view. Be diligent in follow up and holding the payers accountable for their role in patient status determinations.

    Answered by:

    Taryn Schraad, RHIA, CPMA
    Health Care Compliance, Sr. Consultant, PYA, P.C.

    Taryn has over a decade of experience helping healthcare organizations capture accurate and comprehensive documentation in clinical and revenue cycle workflows in compliance with regulatory standards. As an RHIA, Taryn builds strong relationships with clients’ clinical, coding, and billing departments to improve the payment and charge/data processes. Taryn has supported hospitals as an internal auditor, new service coordinator, and chargemaster senior analyst.

    All payers define medical necessity in their online manuals, within provider contracts, or clinical policy bulletins. Medical necessity definitions may encompass appropriateness of levels of care as well as procedures and services. Payer definitions almost always include a reference to being based on reasonable and medically necessary care according to standards of care in the local medical community. Other wording might consist of standards based on peer-reviewed articles published in medical journals or guidelines from nationally recognized health care organizations. In short, medical necessity references used in appeal writing should be standards that are recognized in the medical community.

    An excellent place to start is by reviewing available articles or standards published on specialty society websites such as the American College of Cardiology, www.acc.org. Most of the sites offer free guidelines or standards available for download in pdf format. Periodicals such as the Journal of the American Medical Association or The New England Journal of Medicine are also excellent resources, but often require a paid subscription to access articles. Other excellent resources include the Agency for Healthcare Research and Quality, https://www.ahrq.gov/, and PubMed, https://www.ncbi.nlm.nih.gov/pubmed/. Another resource is the list of articles referenced by the payer in their clinical policy bulletins. Also, your provider may have subscriptions to tools such as InterQual®, MCG, or UpToDate® that include references to articles that may help support the medical necessity of the care provided.

    Answered by:

    Denise Wilson, MS, RN, RRT • AHDAM President
    Senior Vice President Denial Research Group

    Denise is a Registered Respiratory Therapist, Registered Nurse, and holds a Master’s degree in Management Information Systems from the University of Illinois, Springfield. Denise has over thirty years of experience in healthcare, including clinical management, education, compliance, and denial and appeal management.
    Denise is a nationally known speaker and dynamic educator on Medicare and Commercial appeals processes, payer behaviors, standards of care, appeal template development, and building a road map to drive the payer to a decision in the provider’s favor.

    Denise-Wilson-MS-RN-RRT-1-250x300

    In today’s electronic world, there is no reason to include a print-out, paper or otherwise, of evidence-based medicine articles used to support an appeal argument. Best practice is to include the URL where the article can be accessed. It’s also good practice to cite the article using an acceptable format such as the American Psychological Association (APA) citation and format style. The Purdue University Online Writing Lab is a good resource for the APA style. You can find it at https://owl.purdue.edu/. Providing the reference is important because the URL for articles can change over time. The reference also provides the reader enough information to locate the article through library databases or catalogs that may be available to them.

    Answered by:

    Denise Wilson, MS, RN, RRT • AHDAM President
    Senior Vice President Denial Research Group

    Denise is a Registered Respiratory Therapist, Registered Nurse, and holds a Master’s degree in Management Information Systems from the University of Illinois, Springfield. Denise has over thirty years of experience in healthcare, including clinical management, education, compliance, and denial and appeal management.
    Denise is a nationally known speaker and dynamic educator on Medicare and Commercial appeals processes, payer behaviors, standards of care, appeal template development, and building a road map to drive the payer to a decision in the provider’s favor.

    Denise-Wilson-MS-RN-RRT-1-250x300

    There isn’t a clear “you must keep this records this long” answer, but there are some factors to consider.  First, I would DEFINITELY keep them at least ten years.  The False Claims Act has a long statute of limitations, that is 6 years after a claim is submitted, but allows the government to seek damages for up to 3 years after the government learns of the facts, with a limit of ten years.  That means False Claims Act Cases can seek information back ten years.  (And since you don’t learn about many FCA cases for some time, it is theoretically possible to have the request seek information that is even older.)

    From a practical perspective, I would consider keeping these for even longer if the results were favorable.  A favorable decision can provide a defense to a future claim.  If it is possible to retain favorable decisions indefinitely, I would.  Not because it is required, but because it may be helpful.  (Of course, unless it is easy to find the decision, merely keeping it will be of limited value.  Ideally you would store it electronically in a searchable format.)

    Answered by:

    David Glaser, Esq., attorney at Fredrikson & Byron, P.A., Minneapolis, MN

    David helps clinics, hospitals, and other health care entities negotiate the maze of health care regulations, providing advice about strategy, reimbursement and compliance. David is a shareholder in Fredrikson & Byron’s Health Care Group and co-founded its Health Care Fraud & Compliance Group. He has considerable experience in health care regulation and litigation, including voluntary disclosures, criminal and civil fraud investigations, overpayments and reimbursement disputes.

    David’s goal is to explain the government’s enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a frequent guest on RAC Monitor’s “Monitor Mondays,” and you may read his Blog at Orthopedics Today. He has given speeches in 36 states.