Ask The Expert

Ask the Expert!

Submit your questions for expert advice on your denial and appeal management concerns. We will share with the community relevant, thought-provoking, and difficult questions answered by our panel of experts.

We do not guarantee that all questions will be answered.

Recently Answered Questions

1/20/2023

Q: “I would like to know if it is mandatory for all Medicare advantage plans to automatically forward all our upheld Level 1 appeals to the Independent Review Entity (Maximus)?”

A: The Medicare Advantage plan is required to send your upheld Level 1 appeals to the IRE (Maximus) only if you are not contracted with the plan. So, if your hospital has not signed a contract with that MA plan, then the plan must automatically forward your appeal to the next level of review – the IRE.

There is another way that your appeal would be automatically forwarded to the IRE, and that is if you appeal on behalf of the patient. You will need to have the patient sign an authorization of representative form which is usually available from the plan. Include that form with your appeal.

Answered by:

Denise Wilson MS, RN, RRT
Senior Vice President, Denial Research Group/AppealMasters | President, AHDAM

1/6/2023

Q: “I’d love to hear more information blocking and release of records for appeals. My appeals department has difficulty with navigating “who’s records are who’s”, and what is part of the designated record set or not. I suspect we cannot be the only ones with that struggle.”

A: While it is true that many organizations struggle with this topic, they shouldn’t.  In fact, there is no ambiguity here at all.  Once your organization is in possession of a record, in the event of an audit, you can and SHOULD release it to the payor if  that record is related to the treatment you provided, with the possible exception of some chemical dependency records protected by 42 CFR Part 2.  In short, the concern that there is something improper or nefarious about releasing “outside records” is utterly baseless.

One of the biggest challenges as a lawyer is proving a negative.  You may think “where does it say that I can release these outside records?”  But that is the wrong question.  You should be asking “where does it say that I can’t?”  Under HIPAA you are permitted to release records for purposes of payment, a principle that is found in most state laws as well.  (It is worth noting that when state law offers a patient more protection than HIPAA, that state law applies, so the fact that HIPAA allows a release is not definitive.  One must know their state law.  But obtaining explicit consent from the patient to release records to their insurer should address all concerns on the issue.)  Even without the explicit permission in HIPAA and most states, most health care organizations require patients to sign an authorization to receive treatment that specifically permits release of records for purposes of payment.  In other words, one can generally release records for purposes of payment.

That point is not terribly controversial.  There seems to be broad acceptance that organizations can release records to support their payment.  The problem is that somehow a belief has developed that only records created by the organization are covered.  That belief may be widespread, but it is still baseless. When someone makes that argument, ask them for the authority to support it.  And then offer this thought experiment.  Imagine you are attempting to justify a cardiac bypass surgery.  Are you supposed to omit the angiogram that revealed the blockage?  Does the answer depend on whether your organization employs the professional who reviewed the angiogram?  If it were true that organizations could only release records created by their employees, it would be improper to include the many records that patients bring with them that often play a fundamental role in decision making.  Such a result would be deeply problematic.  Fortunately, it is also unnecessary.  As the questioner notes, the information blocking rules, which forbid an organization from preventing a patient from accessing their entire medical record may factor in the analysis.  But well before those rules were issued it was appropriate for an organization to submit any relevant record in their position that supports care when they are undergoing an audit.  Failing to submit records simply because the organization didn’t author them is not required by any federal law, nor, to the best of my knowledge, any state law.  It is also foolish.  It makes it easier for an insurer to deny care as unjustified.  Your medical professionals rely on outside records when providing care to patients.  Support their decisions by giving an auditor access to the same information your professionals had.

Answered by:

David Glaser
Attorney and Shareholder at Fredrikson & Byron

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.

11/29/2022

Q: “What are the requirements for a payer when they downgrade a DRG? We have a payer that sends no reason for a downgrade. When we get the remit, it will show a different DRG than was billed. That is all the information we receive. When we appeal the downgrade, we are basically guessing at the reason… MCC or CC? What are the payers required to disclose to us when they downgrade? My team has to interpret the chart and make an educated guess.”

A: Every type of payer, whether traditional Medicare, Medicaid, Medicare Advantage, or Commercial, has a governing agency that requires the payer to supply a reasonable explanation for claim denials. As an example, the Illinois Administrative Code title 50 § 4520.70(c), which covers Commercial plans operating in Illinois (excluding ERISA plans, Worker’s Compensation, and a few other plans), states the payer must, when denying or under paying a claim, provide a reasonable written explanation of the basis of the underpayment or denial. This explanation shall clearly set forth the policy definition, limitation, exclusion or condition upon which denial or underpayment was based.

Once you have determined the rule for that payer you can use it to push back. Include the language of the rule in your appeals to remind the payer of their obligation. Track the denials with unclear rationale and bring them to your joint operating committee meetings with the payer. Consider filing a formal complaint with the payer or their governing agency.

In the meantime, you are left making an educated guess on the denial rationale as you’ve stated. It’s an additional burden, as you know, to try to determine which MCC or CC is being challenged by the payer. And to have to support every MCC or CC from the claim in your appeal is a waste of valuable resources. You really have to push back using legal and regulatory means.

Answered by:

Denise Wilson MS, RN, RRT
Senior Vice President, Denial Research Group/AppealMasters | President, AHDAM

8/1/2022

Q: “When listing a patient’s comorbidities in the appeal letter, should the writer list all comorbidities or only those that are pertinent to the principal diagnosis?”

A: Considering a balance between efficiency and effectiveness, if a coding summary or a list of comorbidities is available in the history and physical, it’s easy to copy and paste every diagnosis into the appeal letter. If not available, focus on including only the comorbidities that are pertinent to the principal diagnosis.

Answered by:

Denise Wilson MS, RN, RRT
Senior Vice President, Denial Research Group/AppealMasters | President, AHDAM

6/7/2022

Q: “If we are not contracted with a Medicare Advantage (MA) plan, I understand we have the 5 level of appeals.  Is that 5 levels of appeal available to the provider without a signed Appointment of Representative (AOR) form from the patient?”

A: Yes, if you are not contracted with the MA plan, you, as a provider, have five levels of appeal. You do not need a signed AOR form. You do, however, need to have a signed Waiver of Liability (WOL) form from the patient that has to accompany your appeal. See: https://www.cms.gov/Medicare/Appeals-and-Grievances/MMCAG/Downloads/Parts-C-and-D-Enrollee-Grievances-Organization-Coverage-Determinations-and-Appeals-Guidance.pdf

P. 53; 50.1 – Who May Request a Level 1 Appeal

Standard Payment Reconsideration:

  • An enrollee; • An enrollee’s representative; • Non-contract provider (see §50.1.1 for non-contract provider payment appeals); • The legal representative of a deceased enrollee’s estate; or • Any other provider or entity (other than the MA plan) determined to have an appealable interest in the proceeding.

P. 54; 50.1.1 – Requirements for Provider Claim Appeals (Part C Only)

A non-contract provider, on his or her own behalf, may request a reconsideration for a denied claim only if the non-contract provider completes a Waiver of Liability (WOL) statement, which provides that the non-contract provider will not bill the enrollee regardless of the outcome of the appeal). If an appeal is submitted, the WOL must be filed with the appeal. The appeal should include other supporting documentation (e.g., copy of remittance advice/notice and clinical records claim). Non-contract providers who have executed a WOL are not required to complete the representative form because the provider is not representing the enrollee, and thus does not need a written representative form. Furthermore, because the enrollee no longer has an appealable interest under 42 CFR Part 422 Subpart M, plan notices/correspondence regarding the noncontract provider’s appeal would be delivered to the non-contract provider and not the enrollee. If the WOL isn’t filed with the appeal, the plan should make and document reasonable efforts to obtain the WOL.

CMS also provides a flow chart that describes the 5 levels of appeal in Medicare Part C (Managed Medicare.) You can access the chart here: https://www.cms.gov/Medicare/Appeals-and-Grievances/MMCAG/Downloads/Managed-Care-Appeals-Flow-Chart-.pdf

Answered by:

Denise Wilson MS, RN, RRT
Senior Vice President, Denial Research Group/AppealMasters | President, AHDAM

9/29/2021

Q: “I wanted to get your perspective on the role of the physician advisor in regards to the appeal process. Typically, I write first level appeals with limited input from the physician advisor. If the denial is upheld, I would like to have additional input from the physician advisor to support an inpatient level of care. In your experience, how much does the physician advisor participate in the process?  Do they write second level appeals or just provide input?”

A: The physician advisor role continues to evolve over time and may look different in different organizations, depending on the needs of that organization. Rarely do PAs write the actual appeals, but they should be closely involved in denial and appeal work. Reviewing denial rationale and appeal decisions and giving clinical guidance for appeal arguments is part of the core work of physician advisors. They can assist with identifying significant clinical facts that may have been overlooked by the payer or dispute guidelines that may not apply to the case at hand. It may not be practical to have the PA involved in every appeal due to cost and resource allocation. You might consider a two-pronged approach based on the perceived need for physician input and an at-risk amount. For example, if the appeal writer is faced with a more complex clinical scenario that they may be unfamiliar with, or the case is a high-dollar denial, the denial would be referred to a PA for review and recommendations.

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.

9/07/2021

Q: “When completing an Appointment of Representative (AOR) form to accompany an appeal, does the name on the form need to be a specific person or can I use the hospital’s name? My director would like to have this AOR form created with my name as the appointed representative since I am the appeals coordinator and handle all appeals. What would you recommend?”

A: Payers expect the name of a single person to be entered on the AOR form. Medicare’s AOR form, also known as Form-1696, states, “I appoint this individual”, indicating a request for a single named person. https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/downloads/cms1696.pdf. The AOR form for United HealthCare states, “name the person who will be your representative.” https://www.uhcprovider.com/content/dam/provider/docs/public/commplan/nc/resources/NC-Appointment-of-Representative-Form.pdf.

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.

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.

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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.