December 5, 2014 Submitted Electronically Ms. Nancy J. Griswold Chief Administrative Law Judge Office of Medicare Hearings and Appeals U.S. Department of Health and Human Services 1700 N. Moore Street Suite 1800 Arlington, VA 22209 ATTN: OMHA-1401-NC RE: The American Physical Therapy Association s Response to the Request for Information: Medicare Program Administrative Law Judge Hearing Program for Medicare Claims Appeals Dear Ms. Griswold: On behalf of our 90,000,member physical therapists, physical therapist assistants, and students of physical therapy, the American Physical Therapy Association (APTA) appreciates the opportunity to submit comments to the Office of Medicare Hearings and Appeals (OMHA) request for information, Medicare Program: Administrative Law Judge Hearing Program for Medicare Claim Appeals. We are deeply concerned with the backlog of Medicare appeals and the 2 year delays in ALJ hearings that have resulted. We appreciate that OMHA has convened two forums over the past year to discuss the challenges with the appeals process and to request public input on ways to resolve the backlog in appeals. We urge OMHA and CMS to develop a comprehensive solution to the problem with the appeals process to prevent delays in the future. We respectfully provide the following comments: Physical Therapy Services: Physical therapy services encompass the diagnosis of, interventions for, and prevention of impairments, activity limitations, and participation restrictions related to movement, function and health. (Interactive Guide to Physical Therapist Practice by American Physical Therapy Association. 2003. ISBN: 978-1-887759-87-8. DOI : 10.2522/ptguide.978-1-931369-64-0) Physical therapists are licensed health care professionals who diagnose and manage movement dysfunction and enhance physical and functional status in all age populations.
Continuity of care is crucial to Medicare and Medicaid beneficiaries who are typically dealing with multiple and/or chronic conditions. These beneficiaries are dependent on their health care provider to timely provide the medically necessary care they need to ensure their health condition improves and does not worsen. The extreme backlog of Medicare claims appeals has impeded beneficiaries from receiving medically necessary care. The complex claims appeals process, the cost of filing an appeals, and the lengthy delays have undermined the ability of physical therapists and other health care professionals to deliver patient centered care. This has resulted in worsened continuity of care and increased admissions to hospitals, skilled nursing facilities (SNFs), and other institutional settings. Additionally, physical therapists are disproportionately negatively impacted by the appeals process due to denied claims in combination with the mandatory manual medical review process performed by recovery auditors when outpatient therapy services exceed $3700 in a year. Many private practice physical therapists have been forced out of business because of the administrative delays, burdens and withholding of reimbursement for medically necessary care. Moreover, Medicare contractors commonly misinterpret claims and unnecessarily deny care and/or deny claims due to their own administrative errors. Unfortunately, due to the lengthy appeals process, often the contractor is no longer a CMS contractor by the time the appeal is heard making it difficult, if not impossible, to obtain the necessary documentation from that former contractor. Addressing Increased Workload at Administrative Law Judge Appeals Level APTA commends OMHA s willingness to consider feedback from stakeholders to improve the appeals. APTA believes that the current structure of the appeals process generally is broken. Under current requirements, CMS could simplify and clarify the process for beneficiaries and providers. Other claim oversight (such as mandatory medical reviews at $3700 of therapy services) should be suspended until the appeals process has been corrected and streamlined. Congressional action should be sought if recommendations that would improve the process are outside of current statutory authorities and requirements. For example, reducing the number of appeals levels would decrease the time involved in the appeals process. Medicare Contractors Inappropriate denials by Medicare contractors are a major driver of the ALJ backlog. While we recognize that OMHA and CMS are separate entities within the Department of Health and Human Services, we strongly urge OMHA to work with CMS to remedy the situation. Recent health provider association data indicates that erroneous Medicare contractor claim denials are substantial and greater than 50% (although CMS and the Office of Inspector General (OIG) each have different error data). Regardless of the data inconsistencies, contractor errors are substantial and unnecessarily harmful to both beneficiaries and providers. The 2014 U.S. Senate Special Committee on Aging report, Improving Audits:
How We Can Strengthen the Medicare program for Future Generations, states that previous OIG work found that 56% of all appeals were overturned at the ALJ level, regardless of the type of contractor. At an OMHA provider meeting it was reported that the largest number of denials occurs at the first two levels of the appeals process. Level 1 of the appeals process is performed by the same Medicare Administrative Contractor (MAC) that originally processed the claim. The Qualified Independent Contractors (QIC) perform the second level. At the OMHA meeting, stakeholders cited issues with the QICs such as transmitting the full record to the ALJs when cases move to the third level of appeal, substantial numbers of denials that are based on technical problems rather than a lack of meeting medically necessary requirements, and the MAC s and QIC s refusal to reopen their decisions even though the objective is appeal s resolution at the lowest possible level. Although this RFI only requests input at the ALJ level, CMS must improve efforts to resolve the issues at the first two levels of the appeals process, specifically regarding contractor errors and inefficiencies. This focus would allow the appeals process to function with less impediments and the ALJ s case workload would be reduced as a result. CMS should develop directives that safeguard beneficiaries and providers from erroneous denials that lead to appeals and provide a mechanism for such denials to be reversed outside the appeals process. Providers have reported numerous problems with RAC audits that have resulted in appeals that could have been avoided. For example, physical therapists who have been subject to the manual medical review process at $3700 of therapy claims, have reported problems submitting documentation to RACs in response to Additional Documentation requests (ADR) and having the RACs state that they did not receive the documentation despite proof of confirmation of delivery. In some instances, the RACs state that one part of the medical record, such as the plan of care, is missing, even though it was sent. The end result is that the claims are denied for lack of documentation or missing documentation and then must be appealed to be overturned. Also, there have been numerous instances reported of miscommunication between the RAC and the MAC, resulting in the issuance of a demand letter by the MAC in instances where the RAC has made a favorable decision. At a minimum, these directives should require contractors to promptly request missing information from providers for incomplete claims and provide adequate explanation as to why a claim has been denied. When a claim is denied, with limited information, then the provider (or beneficiary) has no choice but to appeal the claim. Additionally, contractors should be subject to increased oversight through random audits to ensure compliance with applicable rules and to verify that contractors internal appeals processes are correct and operational. Appellants should have easy access to all information and documentation that is under review for their case related to payment, coverage and the status of the appeal. Data should be published by The Department of Health and Human Services (HHS) on an ongoing basis
regarding both the number and disposition of appeals at each level. This information should be listed by service type. When a provider appeals to the ALJ level, CMS and its contractors should not be allowed to recoup the funds until after the provider has received an ALJ determination. Currently, if the provider loses at the second level of appeal, the funds are recoupled. Because of the delays at the ALJ level, it could be years from the date of recoupment of the disputed funds to when the appeal is fully adjudicated and funds are returned. Given the fact that so many appeals have been historically overturned at the ALJ level, CMS should allow providers to retain payment for denied claims until the ALJ has made a determination. Additional Recommendations APTA agrees with the following recommendations made by the OIG in its November 2012 report, Improvements are needed at the Administrative Law Judge Level of Medicare Appeals: Eliminate decision Inconsistencies through Coordinated Training on Medicare Policies to ALJs and QICs: Medicare policy knowledge is inconsistent with at all appeal levels. Coordinated training would encourage consistency in decision-making. Inconsistencies in policy determinations should be tracked and studied to determine needed areas for re-training. Identify and Clarify Medicare Policies That Are Unclear and Interpreted Differently Analyze data and identify and focus on unclear policies with vague definitions and work to eliminate, develop or clarify these policies. Standardize Case Files and Make Them Electronic The efficiency of the appeals process can be increased through better electronic file and data management. However, if this process is poorly implemented, additional delays can result. The conversion to e-data management should be carefully and correctly implemented so that the electronic data has integrity. Regulations Should be Revised, as Necessary, to Expedite the Various Appeal Levels and Provide Additional Guidance to ALJs regarding the acceptance of New Evidence from One Appeal Level to the Next Implement a Quality Assurance Process To Review ALJ Decisions
Medicare regulations state that ALJs are bound by Medicare laws, regulations, and National Coverage Determinations and must give substantial deference to Local Coverage Determinations and CMS program guidance. A quality assurance process is necessary to review ALJ decisions to determine where additional training or guidance should be focused. Determine Whether Specialization Among ALJs Would Improve Efficiency and Develop Policies and procedures to Support Specialization Areas However, APTA deviates from the OIG recommendations in that it supports an ALJ s autonomy from CMS to make their decisions without unnecessary or undue influence from CMS. Conclusion APTA supports the necessity to expedite and streamline the appeals process. We believe a balanced approach can be taken that minimizes waste and abuse in the claims process while, most importantly, ensuring that beneficiaries have access to medically necessary care in a timely manner. APTA looks forward to working with OMHA in its efforts to improve the appeals process to ensure that the appropriate physical therapy services are available to patients in a timely manner so as not to jeopardize their health. Thank you for your consideration of our comments. If you have any questions, please contact Deborah Crandall, J.D., Senior Regulatory Affairs Specialist, at 703-706-3177 or deborahcrandall@apta.org. Sincerely, Paul Rockar, Jr. PT, DPT, MS President PR/dc