Arm Yourself Against Medicare and Medicaid Audits

For just about every common denial reason, there is a viable defense. Here are a few.

Auditors can be overzealous, resulting in both civil and criminal repercussions. But I am not telling you anything you don’t know.

Auditors cast wide nets to catch a few minnows. Occasionally, they catch a bass. But for the most part, innocent healthcare providers get caught in the metaphoric net. What auditors and judges and basically much of the general population often don’t understand is that accusing providers of “credible allegations of fraud” and alleged overpayments, if unfounded, can have a profound and negative impact.

First, the providers are forced to hire legal counsel at an extremely high cost. Their reputations and names get dragged through the mud, because providers are considered guilty until proven innocent. Then, once they prove that there is no fraud or noncompliant documents, the wrongly accused providers are left with no recourse.

The audits generally result in similar reasoning for denials. For instance:

  1. Lack of medical necessity. Defense: the treating physician rule. Deference must be given to the treating physician, not the desk reviewer who has never seen the patient.
  2. Canned notes: Defense: While canned notes are not desirable, using them is not against the law. There is no statute, regulation, or rule against canned notes. Canned notes are just not best practices. But in reality, under some scenarios, the notes are naturally going to be similar.
  3. X-rays tend to be denied for the sole reason that there are no identifying notes on the X-ray, or that the printed copy of the X-ray you submit to the auditors is unreadable. Defense: When you submit an X-ray, include a brief note as to the DOS and consumer.
  4. An illegible signature, meaning no proof of the provider being properly trained and qualified. Defense: this one is easy; you just show proof of trainings, but to head off the issue, print your name under your signature or have it embedded into your EHR.
  5. Documentation nitpicking. The time, date, or other small omissions result in many a denial. Defense: there is no requirement for documents to be perfect. The Social Security Act (SSA) provides defenses for providers, such as “waiver of liability” and “providers without fault.” The “waiver of liability” defense provides that even if payment for claims is deemed not reasonable and necessary, payment may be rendered if the provider did not know and could not have been reasonably expected to know that payment would not be made.

Whenever a client tells me, “let’s concede these claims” because he or she believes the auditors to be right, I say, let me review it. With so many defenses, I rarely concede any claims.

Programming Note: Listen to Knicole Emanuel’s live RAC Report every Monday on Monitor Mondays, 10 Eastern.


Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards. She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining. Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Nelson Mullins and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

Related Stories

Leave a Reply

Your Name(Required)
Your Email(Required)

Featured Webcasts

Implantable Medical Device Credit Reporting for 2023 – What You Need to Know

Learn how to save your facility hundreds of thousands of dollars in repayments and fines by correctly following CMS requirements for implantable medical device credit reporting. We provide you with all the need-to-know protocols, along with the steps for correct compliance while offering best practices to implement a viable strategy in your facility.

January 25, 2023

Trending News