There are only two issues in which people in every country and culture can universally agree upon. The first of these is “My government is doing something wrong”. I’ll give you the second one later in this posting, but I want to focus on this one primarily.
The reasons for citizens of the world universally thinking that their governments are incompetent vary as you cross international borders. In Greece, economic policy intrudes on their enormous amount of free time. In North Korea, the food supply could be more plentiful, but given the personality cult that exists in their government, no one dares to speak to that issue while still a citizen within its borders.
American citizens have complaints about many government agencies, but all of them stem from an overarching idea of fairness, which, after all, was the reason we picked up guns and consciously decided to extract the imperial arrogance of 18th Century Great Britain from the continent.
When it comes to Medicare, there is one area where fairness has been completely tossed out the window. I speak of the Medicare Appeals Process. While the RAC process has cast a spotlight on the seedier side of appeals, a challenge from another corner of the Medicare universe reared its head recently with the potential of altering the balance of power in the appeals process.
The Supreme Court heard a case back on December 4th in which Auburn Regional Medical Center, a disproportionate share hospital (DSH) in Washington state, sued HHS for additional funds it felt was owed after a 2008 court ruling determined that CMS’ calculations of such payments were flawed and needed to be adjusted in the DSH’s favor. CMS argued that the 180-day filing deadline for appeal had passed and that the hospitals involved could not challenge past incorrect payments beyond the deadline.
The relief being asked of the Court is referred to as “equitable tolling”, which states that the statute of limitations will not bar a claim if a plaintiff, despite due diligence and best efforts, did not discover the inequitability until after the expiration of the limitations period. The Department of Health and Human Services is vociferously fighting this idea from the other side.
In oral arguments, the justices appeared to be confusing the 180-day provider appeal deadline with the 3-year “good cause” rule utilized by CMS for reopening claims for audit (a time frame that CMS has stated they would like to expand, by the way). I’d like to leave the idea of “good cause” on the shelf, as everyone knows how I feel about that. I shall state categorically that if the 9 justices at the end of the legal road, tasked with interpreting the law, can’t get the facts behind Medicare reopenings straight in oral arguments, doesn’t that speak volumes about the statutory morass that is Medicare?
In a friend-of-the-court brief, the American Hospital Association stated that equitable tolling was necessary in order to give providers “the opportunity to obtain relief from the agency’s errors”. I find this to be the most profound of arguments, as CMS has been far too lax in penalizing their own contractors for poor performance. Payment integrity should be a two-way proposition, and to date, that simply isn’t the case. From the MACs, who consistently pay claims incorrectly without consequence, to the QIC contractors who rubber-stamp MAC appeal denials, to the RAC contractors that wouldn’t know what constitutes ”medical necessity” if it walked up and punched them in the nose, it can be rationally argued that CMS’ payment integrity problem exists mainly under its own umbrella.
If the Supreme Court affirms that the current inequity between the rights of providers and the rights of CMS continues, it should give providers pause. After all, the second thing that all cultures and countries can agree on is the horror that is necrophilia, but there are ghastly similarities between this abhorrent practice and your typical retrospective RAC audit. Without equity of reopening rights, nothing short of a revolt will stop the ongoing retroactive economic despoiling of this nation’s hospitals and doctors.