The Medicare Program Integrity Manual (MPIM)(Pub. 100-08) is a 15-chapter manual addressing all sorts of behavior by the CMS contractors charged with protecting the Medicare Trust Fund. Chapter 3, entitled “Verifying Potential Errors and Taking Corrective Actions” (MPIM Chapter 3) has set forth the following as one of its goals:
The Medicare Administrative Contractors (MACs) shall analyze claims to determine provider compliance with Medicare coverage, coding, and billing rules and take appropriate corrective action when providers are found to be non-compliant. The goal of MAC administrative actions is to correct the behavior in need of change and prevent future inappropriate billing. The priority for MACs is to minimize potential future losses to the Medicare Trust Funds through targeted claims review while using resources efficiently and treating providers and beneficiaries fairly.
While the MACs are certainly within their authority to perform both prepayment and post-payment reviews, it does not have unfettered discretion to continue review when it is not warranted. Pursuant to MPIM Section 3.7.1.1, if, during the course of their review or a provider or supplier, the MAC finds a provider-specific issue, they must then determine an error rate, as the error rate is a main driver in determining how to address the issue. In making the assessment, the MAC uses a variety of different methods to assess the issue and then designates the issue as being minor, moderate, or major. Dollar value and the history of the provider play an important part in the corrective action to be taken to address the issue.
Once a corrective action has been in place, Section 3.7.3.3 of the MPIM allows for the MAC to perform a follow-up analysis for as long as necessary to determine if further corrective action is warranted. (emphasis added) Accordingly, CMS has determined, using mandatory language, that,
The MACs shall continue to monitor the provider(s) or supplier(s) until there is a referral to the UPICs for potential fraud, evidence that the utilization or billing problem is corrected, or data analysis indicating resources would be better utilized elsewhere. (emphasis added)
Interestingly, we have often heard that MACs fail to adhere to this mandatory language. For the most part, MACs will continue to audit a provider despite the fact that there is evidence to support not only that their resources would be better spent addressing other issues, but that their initial assumptions and error rate are themselves in error. Sections of the MPIM should not be read in a vacuum, rather they must be read in conjunction with other sections. Specifically, CMS also requires under Section 3.7.4, that MACs track the outcomes of appeals and adjust their medical review activities accordingly:
The MACs shall track and evaluate the results of appeals. It is not an efficient use of medical review resources to deny claims that are routinely reversed upon appeal. When such outcomes are identified, MACs shall take steps to understand why hearing or appeals officers viewed the case differently from them, and discuss appropriate changes in policy, procedure, outreach or review strategies with the regional office.
This is often not the case. Frequently, we see MACs continue to review and deny claims for items and services that are often overturned on appeal. While it is clear that different reviewers can have different views, interpretations, and opinions of particular claims, CMS requires the MAC to take overturned appeal decisions into consideration when determining whether to continue or cancel review activities of that issue.
As a provider or supplier, if you are experiencing this type of activity by your MAC its within your purview to reach out to the MAC to ask them to cease their review activity. You should be prepared to provide examples to them of reviews they performed along with the decisions that have consistently overturned their specific issues on appeal. Should you not receive satisfaction, you should contact your CMS Regional Office to discuss this matter.