As London begins the extended wind-down and pack-up from the recently-concluded Summer Olympics, I am struck by how much I’ve stopped caring about the Olympic Games in general from the time I first began watching them in 1972. The Olympics is the Island of Misfit Sports. Hosting countries spend ten years before and ten years after paying for a 14-day spectacle for sports that you would normally watch at 3 AM on ESPN 2. If you think otherwise, I challenge the reader to go to any public park and count the number of children practicing their triple jump skills.
For those fans of the Olympics who are feeling depressed because the Games of the 30th Olympiad have come to a close, might I direct your attention to another sport (similar to fencing) that features dodging from attacks and thrusting counterattacks from both competing parties. If it’s Wednesday, I must be speaking about the competition that is known as the RAC Appeals process.
It is no secret that hospitals are getting the better of the Recovery Auditors, as well as Medicare as a whole, in the RAC process. With the latest AHA RACTrac data showing providers having a success rate of 75% for finalized RAC appeals, CMS is doing its worst to attempt to game the existing system to increase the net dollar amounts collected by the RACs. Most of this has been done by inflicting pain at the administrative level, such as progressively increasing the number of reviews that can be commenced in a 45-day period and, as of January 1st of 2012, having the MACs send demand letters to the facility payment address, rather than directly to RAC coordinators nationwide.
As providers have adjusted to these shifts, CMS has now turned their attentions directly on the appeals process, but in a way that attempts to wipe all of its fingerprints off of the smoking gun.
Providers are having tremendous success overturning RAC determinations at the Administrative Law Judge (ALJ) level of appeal, which is the third level in the “official” Medicare Redetermination Process. The success rate at this level mostly comes from the fact that the ALJ provides the first opportunity for providers to argue their case in front of an impartial party without a financial stake in the outcome.
With the high volume of RAC appeals going to the ALJ level, hospitals now unexpectedly find themselves as adversely-affected third parties to the ongoing political issue that is the shortage of judges on the federal bench being caused by the U. S. Senate’s refusal to have up or down votes on judicial nominees. According to the CMS website, the ALJ “will generally issue a decision within 90 days of receipt of the hearing request”. In some jurisdictions, ALJs have backlogs of more than 700 RAC appeals cases alone, with some providers experiencing a wait of over 6 months for the scheduling of a hearing.
To combat both the backlog and the success rate, CMS appears to be field-testing two new initiatives.
To date, the MACs and the Level 2 Qualified Independent Contractors (QIC) have been doing little else but rubber-stamping RAC findings in the appeals process. In an attempt to prevent appeals from being fast-tracked from the QIC to the ALJ, CMS has contracted Q2A Administrators to act as an Administrative QIC (defined as a QIC that does not process reconsiderations) to review QIC decisions on RAC appeals. For those providers in MAC jurisdictions for which Maximus operates as the Reconsideration QIC, it is interesting to note that Q2A Administrators is a subsidiary of Maximus, which presents one of the more egregious examples of a conflict of interest in the CMS contracting process. The addition of the Administrative QIC into the process will add to the large amount of time already experienced between the original RAC determination and final disposition of the claim in the appeals process.
In the past, it has not been a habit of the MACs to participate in any way in an appeal hearing at the ALJ level. A provider in RAC Region A recently received a document that indicates that this has changed. Novitas Solutions, which has recently replaced Highmark as the Medicare Part A carrier in portions of RAC Region A, issued to the provider a “Pre-Hearing Memorandum of Law” in response to a recent RAC appeal filing to the ALJ. The document goes into excruciating, and often disingenuous, detail (taken mostly from internet searches) across 17 pages and 12 lettered exhibits, attempting to narrowly define the medical condition at issue in the original RAC denial. The document ends with the signature of a lawyer, which I would imagine is Novitas’ special interpretation of the phrase “No, dude, SERIOUSLY….”. The provider indicated that the document can be combated with things such as documentation of the patient’s medical condition, known in the outside world as “facts”.
The provider community can tell you in stark terms that the RAC process is successful only in terms of provider administrative burden. With these two new rules being added to the game at halftime, CMS’ gaming of the existing RAC Statement of work continues. For hospitals nationwide, there is no need to wait four more years to view sports with limited appeal. Just pull up a chair, light a decorative torch in your backyard, and start following the RAC appeals process. It is slowly becoming the stuff of high drama.