Audits in the Time of COVID

Instead of “Love in the Time of Cholera,” we are currently living through “Audits in the Time of COVID.”

The period we are all still facing has been dubbed, legally, a public health emergency, or PHE (not to be confused with PPE). The Centers for Medicare & Medicaid Services (CMS) has loosely defined what a PHE is – but the definition is fluid. As of now, CMS is defining it as the period of time between Jan. 27, 2020, and a date to be determined. It includes today and is ongoing.

Dear all, COVID-19 is really not over! The defined period of the PHE has yet to be definitively defined.

Audits are being restarted. There is no doubt. The dates of service that will provide the most confusion in Recovery Audit Contractor (RAC) and Medicare Administrative Contractor (MAC) audits will be Jan. 27, 2020 through June 8, 2020. In the future, when you receive document requests for dates of service in 2020, tread lightly and carry a big stick.

CMS’s RAC program’s mission is to identify and correct improper Medicare payments through on-site and desk review audits, and to detect and collect overpayments made on claims of healthcare services reimbursed for services rendered. The 2020 executive summary forecasting how audits would be conducted in 2020 was published in December 2019. There may have been some variables since its publication, like COVID-19.

For those 1.2 million providers participating in Medicare Quality Payment Programs and on the front lines of America’s fight against COVID, the quality reporting guidelines have been suspended. You were given reprieve from quality reporting, but it will not include a stay from RAC and MAC audits targeting dates of service during the PHE.

Medicare Appeals in Fee-for-Service (FFS), Medicare Advantage (MA), and Part D
CMS is allowing MACs and qualified independent contractors (QICs) in the FFS program and the Medicare Advantage and Part D Independent Review Entities (IREs) to waive requests for timeliness requirements for additional information to adjudicate appeals.

CMS is also allowing Medicare provider appeals to be processed:

  • Even if the appointment of representation is incomplete;
  • Even if the appeals do not meet the required elements using information that is available as outlined within 42 CFR §422.561 and 42 CFR §423.560;
  • Utilizing all flexibilities available in the appeal process, if good cause requirements are satisfied.
  • Good cause allows recoupments to be stayed during appeal process, which can be a saving grace for a provider under scrutiny.

Medicaid also has implemented waivers that differ from state to state during the PHE.

The following are examples of flexibilities that states and territories may seek through a Section 1135 waiver request:

  • Waived prior authorization requirements in fee-for-service programs.
  • Permission for providers located out of state/territory to provide care to another state’s Medicaid enrollee impacted by the emergency.
  • Temporary suspension of certain provider enrollment and revalidation requirements to increase access to care.
  • Temporary waiving of requirements that physicians and other healthcare professionals be licensed in the state in which they are providing services, so long as they have an equivalent licensing in another state; and
  • Temporary suspension of requirements for certain pre-admission and annual screenings for nursing home residents.

Check your state for all newly waived exceptions during this public health crisis.

Time-stamp all research so you will be prepared to argue before a judge that whatever day is at issue falls within the definition of the PHE. Because during the PHE, the exceptions define the rules.

 Programming Note: Knicole Emanuel is a permanent panelist on Monitor Mondays. Listen to her live reporting every Monday at 10 a.m. EST


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.

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