NGS: Please Read Carefully

It was just a few weeks ago that I apologized in an article focused on contractor misdeeds. The apology was because I prefer to focus on education about rules and compliance strategies, not complain about poor administration.

But I’m hopping mad, and I hope that I can use the anger for education, and maybe even to improve contractor performance. 

So, with apologies (including to Whitesnake), here I go again on my own. If you work for National Government Services (NGS), or at a regional office that supervises NGS, I hope you’ll read this carefully and help me.

I don’t know what’s going at NGS, but I am seeing many issues in which very, very basic mistakes are resulting in improper denials and flawed recoupments. In this article I am not going to focus on a client that was told that it could bill for 200 units of botox used to treat migraines if 150 were administered to the patient and 50 wasted into the sink – but if the professional felt that the patient would benefit from receiving all 200 units, the clinic was not allowed to bill for any botox.

As part of a Targeted Probe-and-Educate (TPE) process, someone at NGS had the audacity to suggest that giving a patient additional drug, rather than wasting it, somehow nullified coverage for the whole treatment. That is incomprehensible to me, but I digress. 

This article is about a physician who was audited by NGS. In fact, NGS suspended payment to the physician, putting his practice in serious jeopardy. 

There were several major flaws in the overpayment case.

For example, the contractor chose a sample from a universe from which it had already recovered an overpayment, effectively double-charging the physician. Another one of the issues is that the contractor disregarded the Appointment of Representative form, and had failed to send key audit correspondence to me.

Now, the good news is that when I brought concerns to NGS’s counsel, they reacted incredibly well. In fact, they put the overpayment on hold while NGS worked to fix the situation. So, I want to emphasize that I’m very impressed by NGS’s counsel.

If only others at NGS were willing or able to heed their attorney. In late January, the doctor got a letter asserting he had failed to pay the $1.2 million he’d supposedly been assessed. This was obviously a mistake since the overpayment remains on abeyance. On Groundhog Day, I sent NGS a letter enclosing the correspondence I had with their counsel, indicating that the overpayment was suspended. I assumed it was a simple mistake, and the problem would be resolved. But there’s a reason I mentioned Groundhog Day. Much like in the 1993 movie, the contractor’s error was to repeat. 

On Valentine’s Day, NGS sent me a letter with absolutely no love. First, they couldn’t even manage to get my name on the envelope. Some healthcare systems have 100,000 employees. How are they supposed to get mail to the right person when there isn’t any individual addressee? But that was the least of the letter’s problems.

It read “we are unable to respond to you without a current/valid appointment of representative. The form we have is dated June 10, 2022, and thus is outside of the guidelines.”

I don’t know what “guidelines” the letter is referring to, but 42 C.F.R. 405.910(e) says that “unless revoked, the representation is valid for the duration of an individual’s appeal of an initial determination.” Anyone who’s waited six years for an administrative law judge (ALJ) hearing knows you don’t need to send in an annual appointment of representatives. But apparently, someone at NGS doesn’t know that.

Once again, NGS disregarded my role as the client’s counsel. They sent a letter to my client without sending it to me. That letter completely ignored the points I raised in my letter, failing to even acknowledge the written communication we have that the overpayment was suspended. 

I was beside myself. But it gets weirder.

The letter in late January said the collection was based on an overpayment from October 2022. But on Feb. 13, NGS sent another letter to my client claiming that there was a redetermination completed in early January. 

To be clear, neither my client nor I have seen that redetermination. Perhaps most tellingly, neither has the person at NGS who sent a letter in late January that makes no mention of the alleged early January redetermination. So, my client has two letters asserting that they owe money, and the amounts mentioned in the two letters are different, and they cite different authority as their justification. Neither letter has any support. And nothing was sent to me, as it should have been.

So, what are the lessons?

First, NGS has some major issues to work through.

Second, when you have issues with a contractor, reach out to the contractor’s general counsel. In my experience, they’re both competent and helpful. If that fails, go to the Centers for Medicare & Medicaid Services (CMS) Regional Office. Send the contractor’s answer to CMS.

There are times when the Regional Office can smash through a problem. In situations like this, my clients shouldn’t have to pay me, or any other lawyer, or use the legal process to address poor contractor performance.