Home Health & Hospice Week

Good cause for post-QIC submission of evidence may be trickier than CMS indicates.

The new requirement for full and early presentation of evidence is going to be a major burden on providers' Medicare appeals - and it will be even worse if you think loopholes in the rule will be easy to negotiate.

In a recent Open Door Forum on the appeals process changes, Centers for Medicare & Medicaid Services officials indicated submitting evidence after the qualified independent contractor (second) level of appeal would be pretty simple, despite the rule. Providers would have to show good cause for the later submission, and a host of reasons would qualify as good cause, CMS said.

Not so fast: But observers aren't so sure that really will be the case. Andrew Koski of the Home Care Association of New York State has "concerns about providers not being able to submit evidence after the QIC stage," he tells Eli. "CMS gave the impression that it will be easy to submit new evidence at later stages, when the regulations restrict such submissions."

"Don't rely on the information from the Open Door Forum," cautions attorney Mary Beth Gettins with Covington, KY-based Pearson & Bernard. "This is a strong area of concern."

Find Out What the Change Means for You

As part of the appeals overhaul which takes effect May 1 for Part A and Jan. 1 for Part B, providers now must comply with full and early presentation of evidence - that means they must submit all evidence by the reconsideration (second) level at the QIC. The problem is that providers have 180 days to request a redetermination (first-level appeal) from their intermediary or carrier, then 180 days to request a reconsideration from the QIC.

Chasing down progress notes from physicians takes durable medical equipment suppliers a long time, relates attorney Denise Fletcher with Brown & Fortunato in Amarillo, TX. The timeline for the first two levels of appeal often won't be long enough to track down documentation, Fletcher worries.

"The timeframes for producing medical records evidence ... throughout this rule are unrealistic in the context of a non-institutional benefit," criticizes Bob Wardwell with the Visiting Nurse Associations of America. "It's not like the patient's record is on the second floor nurses station, the patient is across the hall and the missing patient note is down the hall in the PT department," notes Wardwell, a former top CMS official.

Having providers submit much more detail, including evidence, early in their appeals will translate to "more substantial expenditures of time and resources (including legal fees) at earlier stages of the process," warns attorney Joel Hamme with Powers Pyles Sutter & Verville in Washington, DC.

And providers likely will have a tough time figuring out exactly how much time and energy to put into chasing down evidence, Gettins expects. Fearful of being prevented from submitting evidence later, they may go overboard to include everything they can think of early on - at a major expense.

Don't Count On That Good Cause Ruling

The law and regulations leave the interpretation of "good cause" for full and early submission exceptions up to the administrative law judges, Gettins notes.

ALJs are likely to be liberal in their good cause decisions - at first, predicts attorney Lester Perling with Broad & Cassel in Ft. Lauderdale, FL. Some in-stances will be practically guaranteed to be good reasons for submitting new evidence - responding to evidence offered by CMS later in the case, for example.

But after a while, Perling expects to see ALJs tighten up on their good cause decisions, especially when it comes to documentation that was in existence at the time of the QIC appeal. The judges may believe they are being presented unnecessarily with cases that could easily have been resolved at the lower QIC level.

This will especially be the case if the intermediary or carrier, in their newly revised reconsideration decision notices, points out the specific documentation required, Gettins forecasts. The ALJ can say "you were given notice" of the missing documentation and "we're holding you to it," she says.

And because Congress spells out the evidence requirement in law, instead of CMS promulgating it in regulation, the ALJs may tend to set the burden of proof high to qualify for an exception, Gettins adds.

"I wouldn't take it for granted," Perling says of new evidence submission to the ALJ.

Thus, Fletcher worries that physicians' non-cooperation in turning over records won't qualify as good cause under at least some ALJs' interpretations.

CMS should generate a specific definition of a good cause exception to guide providers and judges, Hamme proposes. The ideal definition would include specific examples of items allowed, but also would leave room for interpretation on unforeseen situations.

Earlier Resolution Benefits Your Bottom Line

Fewer providers than expected may end up trying to qualify for later evidence submission, Perling predicts. That's because under the new system, CMS can't recoup an alleged overpayment until after the QIC level. So, it's in providers' best interest to resolve their appeal favorably at the QIC, to avoid recoupment while waiting (perhaps for some time) for an ALJ hearing.

Tip: Just in case you can't qualify for later submission of evidence, attorney Liz Pearson with Pear-son & Bernard recommends including two items by the QIC level of appeal: 1) an affidavit from the treating physician testifying to the medical necessity of the services at issue, and 2) any pictures or other visual images of the patient's condition. "These are invaluable," Gettins stresses.

A trend: The appeals process isn't the only system requiring earlier details on cases, Hamme points out. Recently proposed revisions to Provider Reimbursement Review Board guidelines "would effectively replace the preliminary position paper with an appeal notice that would have to be much more particularized as to the basis for the provider's appeal." The result will be the same - more time and money spent by providers up front, he judges.

More information on the appeals changes is at www.cms.hhs.gov/appeals/.