CMS Audit Appeals Process Leaves Providers Desperate for Clarity
Earlier this year I wrote a post entitled: The Black Box: The Appeal of a Failed Meaningful Use Incentive Audit. In that post I documented what I perceived as the lack of transparency in the appeal process for a Medicare eligible hospital (EH) or eligible professional (EP) that had failed a CMS EHR Incentive audit. The audit process in my experience is predictable and includes communication avenues between the EH/EP and the auditor. If the auditor needs additional clarification or documentation, they ask for it. At some point you have a deadline to submit requested documentation before the “Final Determination” is made. You know where you are in the audit process and that brings the comfort of predictability.
The 2012 Proposed Rule covering the appeal process laid out specific direction as to the steps of an appeal. You appeal with additional documentation and then receive notice that your appeal has been upheld or denied. If denied, you could request a review of the decision. This went away in the 2012 Final Rule and we were left with an opaque fog of text that gives no hint as to the rules on the appeal level.
Since I work with many EHs and EPs undergoing CMS EHR Incentive audits it is important that we know the rules. Back in 2011 and 2012 there was very little clarification from CMS on the issues of meaningful use and attestation. CMS admits there was much confusion and has adapted the program to alleviate some of these issues. Unfortunately the appeals process has not seen the benefit of corrective adjustment. In fact it seems to be getting worse. Here are a few examples:
- “Lost Appeals”: Earlier this year I was contacted by a provider who had submitted an appeal and had not received any type of reply in over 7 months. Luckily they had saved the “sent’ email and were eventually told by CMS. “Your first submission to PHIX happened during the shutdown and we have had some issues with appeals during that time period. I apologize for having the first submission lost.”
- “Inconsistent Rulings”: I recently had a hospital contact me after failing an audit. I attribute the failure to not presenting adequate clarification to the auditor on a technical issue. If this had been addressed at the audit level I am confident they would have passed the audit. I helped them prepare for the appeal and believed an open and thorough review would uphold their appeal. The appeal was denied without explanation or discussion. This small hospital is on the hook to repay over $700,000 without an opportunity of an open process. Their only recourse is litigation in Federal Court.
- “Two Set of Rules”: You are not going to believe this one, but it is true. I was contacted last week by a large practice. Two of their physicians had failed audits. Both appealed and won with the statement from CMS: “This is the final determination notice regarding your recent appeal….Based on our review of your Appeal Filing Request, supporting documentation and the Program policies, we have accepted the documentation your provided to support your appeal. Therefore, CMS upholds your appeal.” Sounds great, doesn’t it? However, two months later they received this from CMS: “CMS has reopened the review of your appeal and supporting documentation along with others from your practice. The documentation provided….is unsufficient to support the appeal and CMS is reversing….the decision to uphold your appeal. As a result, the final CMS decision denies your appeal and upholds the adverse audit finding. This decision is not subject to further appeal.” Is it just me or it this a little bit on the crazy side? They received from CMS a “final determination” that their appeal was upheld and then two months were told the “final determination” was being undone, the appeal would now be denied and “this decision is not subject to further appeal.” Both of the letters were signed by the same CMS official. Is it just me or do we need a little sunlight on the inner workings of this process?
Last month I was going to be in Washington, DC and I wanted to meet with the CMS official who seems to be in charge of this process. I wanted to gain some clarification into the appeals process. I’m not asking for favors or lobbying for a client. I just wanted to understand the process. My requested was denied. OK, too busy to meet. I wrote an email asking for specific information regarding the appeals process. I still haven’t heard back.
I mean, come on now, where’s the love? If there is going to be an appeals process maybe it should be modeled after the audit process. At least then providers will have an idea of what is going on. And what’s with this business of reopening a “final determination”. I’m reminded of Franz Kafka’s story, The Trial, about a man prosecuted by a remote invisible authority without knowledge of what he did wrong.
This is not the way to treat health care providers and I hope this post does not fall on deaf ears. I don’t want to hear of any more small hospitals being told the only way to get their “day in court” is to actually file a lawsuit in Federal Court. I’m hoping this can be addressed at a much lower level but if the only avenue left for them is litigation then I guess that is where this is all headed.