Battling Same or Similar RAC Denials

The RACs have been conducting a significant number of automated audits and recoupments for same or similar services. We have been appealing these denials on behalf of our clients, particularly for orthotics, and without specific documentation, it is an uphill battle. Medicare’s perspective is that the supplier must perform their own due diligence prior to billing to avoid these denials. It is recommended that beneficiaries are asked prior to providing an orthotic or prosthetic whether they have received something similar previously. They also recommend that same or similar checks must be conducted through the Medicare Administrative Contractor (MAC) online and via the Interactive Voice Response (IVR). 

There are several resources available for checking same or similar claims in a patient’s history to include MyCGS and the Noridian Medicare Portal.  We highly recommend when using these databases, that you print off the results for your files. Not only that, but you may wish to check same and similar for the other Medicare jurisdictions as well. Some of the denials we have seen were for equipment that was provided to the patient in another jurisdiction, which would not show up in the same and similar check in your jurisdiction. The IVR is another resource.  If calls are performed, we recommend you make a detailed note of the results of the calls with specific search criteria for your files. Again, documenting that you checked each jurisdiction.

Before conducting same or similar checks, you should verify Reasonable Useful Lifetime (RUL) criteria for the item being provided through the related policies. It is to be noted, same or similar items can be provided during the RUL if an item needs replaced because the beneficiary’s condition has changed, or the item was lost, stolen, or irreparably damaged.  Specific and sufficient documentation must be obtained.

According to the current DME MAC Jurisdiction C, Supplier Manual, New Order Requirements, “A new order is required when an item is being replaced because the item is worn or the beneficiary’s condition has changed. Your records should also include beneficiary-specific information regarding the need for the replacement item. This information should be maintained in your files and be available to the DME MACs or UPICs upon request. Failure to provide the appropriate documentation or providing documentation that contains broad, nonspecific explanations will result in claim(s) denial.”

According to the current DME MAC Jurisdiction C, Supplier Manual, Documentation in the Beneficiary's Medical Record… “For any DMEPOS item to be covered by Medicare, the beneficiary’s medical record must contain sufficient documentation of the beneficiary’s medical condition to substantiate the necessity for the type and quantity of items ordered and for the frequency of use or replacement (if applicable).”

Now, we understand that the RACs have recouped a significant volume of orthotic claims for same or similar. However, each of our clients indicates that they performed same or similar checks.  This is an indication to us that the front-end edits in the claims processing system were either not set up properly or were not working. Otherwise, these claims would have denied up front for same or similar and not be recouped months or sometime years later. Unfortunately though, once Medicare recoups a claim, you have the burden of proof to show the overpayment was invalid.  Should a claim be recouped because the history shows another same or similar item is on file within the RUL, administrative actions can be taken if you disagree.  The RAC will allow a discussion period before requesting the claim be denied through the MACs.  During the Covid-19 emergency, the automated reviews will continue, that include same or similar denials; however, they have indicated that extensions will be granted for discussion period requests if customer service is contacted. 

Once the RAC discussion period is over, if unsuccessful, the MAC is notified and adjusts the claim to deny. Now, you have an option to appeal. The appeals are challenging to overturn without evidence that the same or similar checks were conducted because you have the burden of proof.  If your notes or printouts show that a same or similar check was performed and no other item was listed, then you can argue the denial was incorrect. Here is where it gets a little tricky. If the system is now accurate, then you cannot appeal indicating that an overpayment does not exist. However, in determining financial liability, the claims will be denied in accordance with the limitation on liability provision of Section 1879 of the Social Security Act. If you can prove that you performed your due diligence and checked same or similar prior to filing the claim and the system showed no other equipment, then you can argue not that an overpayment does not exist, but rather that you are not “at fault” in causing it.  Why is this important?

According to section 1870(c) of the Social Security Act, it states:

There shall be no adjustment as provided in subsection (b) (nor shall there be recovery) in any case where the incorrect payment has been made (including payments under section 1814(e)) with respect to an individual who is without fault or where the adjustment (or recovery) would be made by decreasing payments to which another person who is without fault is entitled as provided in subsection (b)(4), if such adjustment (or recovery) would defeat the purposes of title II or title XVIII or would be against equity and good conscience. Adjustment or recovery of an incorrect payment (or only such part of an incorrect payment as the Secretary determines to be inconsistent with the purposes of this title) against an individual who is without fault shall be deemed to be against equity and good conscience if (A) the incorrect payment was made for expenses incurred for items or services for which payment may not be made under this title by reason of the provisions of paragraph (1) or (9) of section 1862(a)

Additionally, per the Medicare Financial Management Manual, Chapter 3, § 90, it states:

A provider, physician, or other supplier is liable for overpayments it received unless it is found to be without fault.

The contractor, as applicable, makes this determination. The contractor considers a provider, physician, or other supplier without fault, if it exercised reasonable care in billing for, and accepting, the payment; i.e., It made full disclosure of all material facts; and on the basis of the information available to it, including, but not limited to, the Medicare instructions and regulations, it had a reasonable basis for assuming that the payment was correct, or, if it had reason to question the payment; it promptly brought the question to the contractor’s attention.

Conclusion

Is this argument easy? No. However, we have been successful in making it several times IF our client has good documentation showing that they did their due diligence in advance. We have spoken with representatives of the QIC that performs reconsiderations and they indicated that they would agree with our argument if we had the documentation to support it. So, as with everything, documentation is your only defense. 

You are taking the time to perform the same or similar check, so make the extra effort and record it in your file. While this may not be helpful for current denials you are seeing, it will help you defend yourself in the future.

 Learn more about services offered by the van Halem Group at: https://www.vanhalemgroup.com/