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A Monitor Mondays listener was one of the many people who recently received a letter from CGI, one of the Recovery Audit Contractors (RACs) conducting post-payment audits. 

The letter was newsworthy in at least two respects. First, the letter included language that was presumably part of the form sent to CGI with the expectation that CGI would remove the sample language and insert review-specific detail. Second, audit was inconsistent with CMS’ public statements that complex RAC reviews were to end in February. The story of the letter and how the listener responded can teach valuable lessons.

The Letter

In late April a number of hospitals received the letters, which stated:

“CMS has authorized CGI to perform complex review of claims without requesting medical records when the record has previously been submitted by the provider. This notice includes a list of claims selected and shows the particular issue(s) that will be reviewed. You do not need to submit medical records for these reviews, and no additional reimbursement for medical records will be authorized.”

The letters continued with a very odd paragraph: 

“These claims are being reviewed because [description of the type and nature of the review as approved by the CMS New Issue Review board. If appropriate, include a statement that your analysis has established good cause for reopening. For Example:  … the medical necessity of cerumen removal in this patient. Our analysis of your Medicare billing history, which suggests that you have consistently submitted claims for this service well in excess of that which could reasonably be expected of a family practitioner, constitutes new and material evidence that establishes good cause for reopening as required under 42 CFR 405.980(b)].”

It seems clear that whoever authored the letter was supposed to replace the bold sample language with the actual reason that the claims in question were being reviewed. An error was made. (Allow me one digression: As one who has made many mistakes, I would generally advocate for sympathy for CGI for the error. However, one of my great frustrations with the state of healthcare is that when medical professionals and organizations make similar mistakes, they are often accused of fraud. It would be better if there were more tolerance of honest mistakes made by all participants in the system.) 

The Listener’s Response

The listener, who wishes to remain anonymous, contacted Monitor Mondays host and RACMonitorEnews publisher Chuck Buck to ask whether the complex review was proper. The reader was aware of the following text on the Centers for Medicare & Medicaid Services (CMS) website:

March 7, 2014 – Now that the dates for sending Addition Documentation Request (ADR) letters have passed, CMS would like to remind providers that the Recovery Auditors can continue to conduct automated reviews (reviews that do not require soliciting medical record documentation from providers) through June 1, 2014. Recovery Auditors will also continue to complete the reviews for the ADRs they’ve already sent as of 2/28/2014. Providers have 45 days to respond to an ADR and Recovery Auditors have up to 60 days to make a determination on the claim. In general, CMS will not conduct post-payment patient status reviews for claims with dates of admission October 1, 2013 through October 1, 2014.

Note that while RACs may continue automated reviews that don’t require medical record review through the end of the month, complex reviews, which require medical record review, should be complete. 

The listener sent an email to CMS. To its credit, CMS was extremely responsive. (In my experience, CMS has been quite responsive in recent years. While years ago I found it challenging to receive a reply from CMS, now I generally find CMS staff to be quite helpful.) The CMS employee suggested the listener contact CGI, but that if CGI did not respond within a day or two, the next step would be contacting the CMS Contracting Officer Representatives (CORs). You can find a list of CORs at the AHA website: http://www.aha.org/advocacy-issues/rac/contractors.shtml

Before long, our listener received a second email from CMS saying that CGI had been told to stop sending these requests after May 1.  It suggested she should take advantage of the discussion period for any requests received before May 1.

Our listener opted to persevere. She constructed a well-crafted reply that emphasized the text from the CMS website. Her diligence paid off. About 20 minutes later, she got a note indicating the audits were being cancelled and she would be receiving confirmatory letters.

Lessons Learned

There are several lessons in this story. First, the fact that the reader sent the story to Monitor Mondays allowed many different facilities to learn that they were not alone. It is impossible to know if the discussion on the broadcast last week accelerated the resolution of the matter. The reader was doing a marvelous job of advocacy; she probably didn’t need any assistance. But I am sure that the broadcast didn’t hurt. When you experience something that strikes you as wrong, please share it with Monitor Mondays or RACMonitorEnews. If you want, Monitor Mondays will preserve your anonymity, just was they are doing with this listener. Second, be persistent. The Monitor Mondays listener was told the audit would continue and she fired right back. Third, don’t be afraid to escalate issues to CMS. If that fails, use political contacts. Your congressperson can be a very effective advocate if used properly.  (An upcoming broadcast of Monitor Mondays will discuss tips for taking issues to your member of Congress.)

Finally, be skeptical. Question authority. Don’t just accept it when someone audits you or challenges you. If we work together to challenge unreasonable audits and demands, we will make the system more just.   

About the Author

David Glaser is a shareholder in Fredrikson & Byron’s Health Law Group and helped establish its Health Care Fraud & Compliance Group. David helps healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes.

Contact the Author


To comment on this article go to editor@racmonitor.com


David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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