Medicare Audits: Time is of the Essence

Miss an appeal deadline by one single day, and you lose your right to appeal an overpayment.

Today, I will be discussing the importance of timing. Timing is everything. Missing a deadline germane to any type of Medicare or Medicaid audit can be deadly. Miss an appeal deadline by one single day, and you lose your right to appeal an overpayment.

 If any of you has watched the popular sitcom Schitt’s Creek, then you know that when Johnny and Moira Rose (played by Eugene Levy and Catherine O’Hara, respectively) missed their deadline to file for and pay taxes, they lost their mansion, their money, and way of life. The same catastrophic loss can occur if a provider misses an appeal deadline.

Importantly, when it comes to Medicare appeals, your appeal is due 60 days after the reconsideration review decision, pursuant to 42 CFR § 405.1014: Request for an ALJ hearing or a review of a QIC dismissal. A third-level Medicare provider appeal is considered “filed” upon receipt of the complete appeal at the Office of Medicare Hearings and Appeals (OMHA), instead of the normal standard acceptance that an appeal is filed upon the mailing stamped date. As in, once you mail your appeal, it will be retroactively filed per the date of mailing. Not true for the third-level Medicare provider appeal. It is considered filed on the date of receipt.

Also, the regulatory clock starts ticking five days after the date the of the reconsideration review decision, because the thought is that the U.S. Postal Service will not take more than five days to deliver correspondence. Well, that assumption nowadays can be inaccurate. The Postal Service is a mess. Mail is sometimes received weeks after it was sent, which makes the date of delivery imperative.

We actually had a case in which the administrative law judge (ALJ) dismissed our appeal because the Postal Service delivered the mailing on the 61^st day after the reconsideration review decision, including the five-day window. Literally, the 61^st day. The reason that the appeal was received on the 61^st day is that the 60^th day fell on a holiday, a weekend, or a closure due to COVID – I cannot recall – but OMHA was closed at the time. The mail delivery person had to return the next day to deliver the appeal. Yet our appeal was dismissed based on this issue! We filed a motion to reconsider, but the ALJ denied it. Our only chance at presenting to the ALJ was squashed.

We appealed the ALJ’s denial to the Medicare Appeals Council, with hope of reasonableness. We have no decision yet.

Programming Note: Listen to healthcare attorney Knicole Emanuel’s RAC Report every Monday or Monitor Mondays, 10 Eastern.