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From Health Law Daily, August 22, 2018

Medical services provider’s bid to reverse denial of Medicare claims denied

By George Basharis, J.D.

A provider of medical services to Medicare recipients in long-term care facilities failed to provide "new" evidence supporting its argument that the denial or downcoding of certain claims submitted to Medicare for payment should be reversed. The provider, General Medicine, P.C., had filed a motion for summary judgment seeking a remand of the denial to the Secretary of Health and Human Services asking the Secretary to consider additional evidence of its claims (General Medicine, P.C. v. Secretary of U.S. Dept. of Health and Human Services, August 21, 2018, Leitman, M.).

Billings denied or downcoded. General Medicine’s physicians and nurse practitioners see Medicare recipients only in the long-term facilities in which they reside. Most of the medical records pertaining to treatment remain in the possession of the facility. In 2013, General Medicine treated patients residing at The Anderson, an Ohio facility. General Medicine submitted the bills for services to Medicare through CGS Administrator, LLC, a Medicare administration contractor.

CGS, in April 2013, told General Medicine that additional medical records were needed to support its billings. General Medicine requested the medical records, in writing, from The Anderson. The Anderson failed to respond to General Medicine, and the medical services provider did not follow up with The Anderson. CGS denied or downcoded 223 of General Medicine’s billings for treatment to The Anderson patients. When a claim is downcoded, Medicare pays for the treatment but at a lower level of service.

Appeal to the QIC. General Medicine appealed the CGS decision to a Medicare Qualified Independent Contractor (QIC). Prior to the appeal, General Medicine called The Anderson requesting additional medical records. The Anderson did not return the call and there was no record of any follow up by General Medicine. The appeal was filed with the limited records in General Medicine’s possession. On appeal, the QIC determined that some of the denied claims should be paid but downcoded. The QIC affirmed the decision denying the remaining claims.

After the QIC determination, General Medicine called The Anderson again. This time the services provider received the records. General Medicine provided the records to ValueScope, a valuation firm that prepared a report outlining General Medicine’s argument with the QIC’s determination and why Medicare should have paid the billings in full.

Administrative Law Judge. In August 2014, General Medicine requested a hearing before an Administrative Law Judge (ALJ). However, General Medicine could not present the newly obtained records to the ALJ unless it could show cause for failing to present them to the QIC. General Medicine argued it did not submit the records to the QIC because the records were in the sole possession of The Anderson at the time of the hearing. General Medicine also submitted the ValueScope report for consideration.

MAC appeal. Because of an extended delay at the ALJ stage, General Medicine decided to proceed directly to a review by the Medicare Appeals Council. In a scheduling order issued to General Medicine in March 2016, the MAC stated it would not hold a hearing on the appeal but General Medicine could submit a supplemental brief in support of its appeal. However, General Medicine could not submit additional evidence "without good cause."

General Medicine argued in its brief that there was good cause to consider the recently obtained records from The Anderson not submitted to the QIC because The Anderson released the records after the QIC decision. The MAC disagreed with General Medicine’s argument and would not consider the records on appeal. The MAC also found little value in ValueScope’s report. However, the MAC did address some of the arguments made in the report and did allow coverage of some of the claims based on ValueScope’s arguments. For the most part, the MAC upheld the QIC’s decisions on the claims.

Motion for summary judgment. General Medicine filed a motion for summary judgment seeking a remand to the Secretary to consider the medical records received from The Anderson after the QIC decision. General Medicine based its request for remand on Sentence Six of 42 U.S.C. § 405(g). Under Sentence Six, the court can consider additional evidence to be taken before the Secretary, but only if there is "new" and "material" evidence and "good cause" for the failure to incorporate the evidence into an earlier proceeding.

The court agreed with the Secretary that the records from The Anderson were not "new" or "material" and that General Medicine failed to show "good cause" for failing to acquire and timely submit the records to the QIC.

Evidence is "new" under Sentence Six only if it was not in existence or was unavailable at the time of the administrative proceeding, the court noted. In this case, General Medicine acknowledged it received the records from The Anderson before it appealed the QIC’s decision to the ALJ. General Medicine offered to make the records available to the ALJ. General Medicine also provided the records to the MAC before the MAC’s decision.

General Medicine argued that the records supported a remand under Sentence Six because they were not available at the time of the QIC hearing. However, General Medicine’s administrative proceedings did not end with the QIC decision. During all further administrative reviews, General Medicine was in possession of the records. General Medicine did not provide the "new" evidence required to have the Secretary review on remand under Sentence Six, and General Medicine’s motion for summary judgment was denied.

The case is No. 2:17-cv-10090-MFL-DRG.

Attorneys: Barry M. Rosenbaum (Seyburn Kahn, P.C.) for General Medicine, PC. Amelia Wallrich, Office of the General Counsel, for Secretary of U.S. Department of Health and Human Services.

Companies: General Medicine, PC; Secretary of U.S. Department of Health and Human Services

MainStory: TopStory CaseDecisions CMSNews BillingNews LTCHNews MedicareContractorNews PaymentNews ProgramIntegrityNews MichiganNews

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