Recovery Audit Contractors (RAC) are expected to turn their attention to home health care providers sometime next year, looking for reasons to recoup PPS episode payments received as far back as October, 2007. If, as is anticipated once they get started, they use the same reasons Regional Home Health Intermediaries (RHHI), Qualified Independent Contractors (QIC) and Administrative Law Judges (ALJ) are currently using to deny payments, agency management can secure a tactical advantage by studying those reasons now.
There are two ways to prepare for the RACs. One is prevention, the other cure:
- help your clinicians improve their documentation skills
- learn how to navigate the appeal process
This week, we focus on the cure, all the while continuing to hope your prevention efforts, which this newsletter will frequently address, will make the cure mostly unnecessary.
Case study: Much ado about nothing one visit
The following example, drawn from an actual payment denial case that occurred this year and is still progressing through the courts, demonstrates one of the tactics insurance companies with government contracts currently use to deny payments for services home care agencies have already provided.
As in almost all cases, the rationale is that the agency did not adequately demonstrate medical necessity. The tactic this RHHI often uses, however, plainly visible in this case, is to attack individual visits one or two at a time until only four remain or until a therapy payment threshold has been missed. Contractors refer to such an outcome as “partially favorable.”
Questions to consider while studying this case
- When a Medicare certified home care provider intentionally provides a fifth visit merely for the sake of pushing a PPS episode from LUPA to fully-paid, the practice is suspected to be fraudulent. When a CMS contractor denies a selected number of visits merely for the sake of pushing a fully-paid PPS episode into LUPA status, what is this practice called?
- What did it cost Medicare in contractor fees and judicial salaries to pursue this case from start to finish?
Editor’s note: facts of the case are intentionally vague enough to avoid a HIPAA violation but specific enough to give the reader a feel for the type of services this patient required.
Dates of service: fall/winter 2008/09
Services provided: skilled nursing, IV infusion
Diagnoses: septicemia, bronchitis, hypertension, renal disease, coronary atherosclerosis, diabetes mellitus type II, depression
Initial denial
Days after submitting a claim for this episode, the agency received a denial from its RHHI, Cahaba Government Benefit Administrators, LLC (Cahaba). Quick denials such as these are issued by computers, not by people. Something in the claim triggered an automated computer edit. Typically, these denials are not accompanied by explanations of the denial reason.
Second denial
The agency requested a redetermination within the 60-day time limit and Cahaba responded about five weeks later. Under the heading “partially favorable decision,” Cahaba declared that four skilled nurse visits were appropriate for payment but one, the visit performed on day 8 of the PPS episode, was to remain denied as not medically necessary. (A second review such as this one is conducted by a person, not a computer.)
The reviewer wrote, “There were no significant changes in the patient’s condition, medications or treatment plan that would require skilled nurse intervention for the denied visit.” By denying one visit, Cahaba reduced this episode from fully paid to a per-visit LUPA payment.
Third response
Exercising its right, the agency appealed to the next level, the Qualified Independent Contractor (QIC), in this case, Maximus Federal Services of King of Prussia, PA. As it does in approximately 98% of cases, the QIC confirmed the RHHI’s denial. In explaining the decision of its “medical review panel,” Maximus confirmed the RHHI’s decision, saying:
“The beneficiary’s intravenous antibiotic was discontinued on [episode day 4]. There was no documented change in condition, medication, or treatment regimen other than the discontinuation of the IV antibiotic. The services provided were not skilled. The skilled nursing visit was not reasonable and medically necessary and did not meet Medicare coverage criteria.
Medicare coverage criteria states that there must be documented change in the patient’s condition in relation to their medication or treatment plan to be eligible for skilled nursing services. Skilled home health services are not covered by Medicare when they are observational, related to chronic conditions. The documentation submitted indicates that the nursing visit consisted of observation and monitoring of a chronic condition and repetitive teaching, and therefore, not covered services by Medicare. The skilled nursing visit of [day 8] will remain denied.”
Agency response
One does not argue with a QIC decision but takes the case to the next level, the Administrative Law Judge (ALJ). In its 6-page reply, this agency answered Maximus’ reasoning in detail, providing clinical evidence and citing Medicare rules where the QIC had not. The following is limited to highlights of the agency’s argument in order to avoid identifying the case.
- Initial, physician-authorized referral was for daily antibiotic infusion for four days.
- Starting an IV requires the skills of a licensed professional, as described in the Medicare benefit policy manual.
- In its rejection, Maximus neglects to comment on the relationship between the patient’s multiple diagnoses and the skilled care provided.
- Maximus offered no credentials of the unidentified reviewers on its panel of medical experts.
- Maximus did not review the patient chart but merely repeated the RHHI’s opinion that the fifth visit was medically unnecessary because there was “no change in patient condition” immediately following four days of antibiotic infusion.
- Nevertheless, nursing notes indicated the patient continued to exhibit signs and symptoms of septicemia after four days of therapy and skilled observation was crucial to monitor the patient’s changing condition. On the date of the denied visit, nurse notes also indicate the patient was:
- communicating/interacting appropriately but forgetful
- exhibiting shorter breath on exertion, with diminished lung sounds, walking less than 20 feet requires a rest stop
- Rhales/Ronchi and wheezing in the right and left lobes of the lungs
- exhibiting fatigue
- demonstrating an unsteady gait/balance, utilizes a cane and a walker or wheelchair for mobility
- requiring supervision/assistance to leave the home
- demonstrating poor balance/coordination
- requiring assistance with ADLs
- still experiencing pain
- Though we must take up the court’s time to argue one visit, this one visit makes the difference between a full episode payment, which would pay for the supplies and labor needed to provide four consecutive days of infusion therapy, and a LUPA payment of approximately $500. We believe the QIC has intentionally denied this one visit in order to drive down the payment from full to per-visit.
- On day 18 of the PPS episode, the patient was hospitalized with an altered level of consciousness. On day 21, the agency completed paperwork to formally transfer the patient from home care to hospital care.
Addressing the question as to whether the agency intentionally and carefully performed exactly five visits in order to push the episode from LUPA status to full payment, the judge was told that there would have been more than five home health visits. However, the patient began to become violently non-compliant with the physician’s care plan and to refuse nursing visits between the date of the fifth visit and the date of rehospitalization. The patient’s condition declined rapidly during those two weeks, resulting in the need for another expensive hospital stay.
Again citing the Medicare benefit policy manual, the agency noted that follow-up observational visits do indeed require the intervention of a skilled, licensed professional. The Medicare beneficiary manual section 40.1.2.2 describes the following:
For skilled nursing care to be reasonable and necessary for management and evaluation of the patient’s plan of care, the complexity of the necessary unskilled services that are a necessary part of the medical treatment must require the involvement of skilled nursing personnel to promote the patient’s recovery and medical safety in view of the patient’s overall condition.
Agency Commentary
In a rare, perhaps brazen display of frustration, the agency continued to speak to the ALJ after the facts of the case had been explained. Apologizing again for absorbing the court’s time to argue over one visit, the agency stated that it has been the victim of repeated denials, in spite of the fact that virtually all past denials have been overturned and that no suspicion of wrongdoing has ever been voiced, even whispered against this agency.
They added they must argue this one visit in order to bring the court’s attention to the repeated “capricious denials, arbitrarily designed to line with commissions the pockets of those making the denials.”
In this agency’s opinion, not only was the fifth visit medically necessary but at least three more were needed to stabilize the patient’s condition. Had the patient not canceled three other visits, her subsequent rehospitalization would likely have been avoided and the Medicare system would have been spared an unnecessary, additional payment of tens of thousands of dollars.
Again daring to move from providing facts to adding frustration-fueled commentary, the agency concluded by reminding the judge that CMS and its contractors had invested substantial resources, time and energy in the effort to deny one skilled nursing visit, the result of which was ultimately a net higher Medicare bill for this beneficiary.
They advised the judge that their administrator had seriously considered walking away from this episode but decided to go forward with it because this type of denial was not an isolated incident but a pattern of behavior by the agency’s RHHI and its QIC. Unfortunately, most providers – some estimates place it over 95% – do not take the trouble to push small cases this far and contractors have learned they may continue this type of denial practice with impunity.
