“The backlog is a huge problem,” said Jessica L. Gustafson, a Southfield, Mich., health law attorney and vice chair of the American Bar Association Health Law Section’s Physician Issues Interest Group. “One major implication of the backlog is a cash flow interruption to a physician’s practice.”
Ms. Gustafson noted that under federal law, the Centers for Medicare & Medicaid Services is prohibited from recouping an alleged overpayment during the first two stages of an appeal. However, following a reconsideration decision, the CMS is authorized to recoup an alleged overpayment and withhold future payments as an offset to the alleged overpayment. Because of the backlog, the CMS can hold onto a physician’s money for years, until a final determination is made, she said.
In Dr. Feiss’s case, the CMS withheld his Medicare payments during the appeals process, he said. He hired Ms. Gustafson, who assisted him through three rounds of appeals before the case was assigned to an administrative law judge. The process was fraught with unexpected costs, such as hiring an accountant and paying for expert witnesses, he said.
Jessica Gustafson
“It was a very stressful period in my life,” Dr. Feiss said in an interview. “It’s almost like having two jobs. I was trying to maintain my practice, but I was trying to compile all this information that was required by Medicare and educate myself in terms of the terminology and definitions of Medicare law to understand their vernacular.”
While the lengthy process of an audit appeal may sound off-putting, experts stress that a large portion of physician appeals are successful. In 2013, 60% of Medicare Part B claims appealed were overturned in providers’ favor, according to a September report released by the CMS. In contrast, only 11% of Medicare Part A claims were overturned on appeal. Of Part B appeals associated with overpayments, about 9% of determinations were overturned in 2013.
For physicians deciding whether to appeal an audit, key considerations include whether their argument against the recoupment is sound and if they have sufficient documentation, said Michael E. Clark, a health law attorney in Houston, speaking in an interview.