What You Should Know About Appealing Medicare Claims

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A Closer Look At Overpayment Regulations

Here is the evolution of the law that controls the conduct of the national recovery audit contractors and the claim processing contractors such as Palmetto GBA.

• In 2003, Congress passed the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) (Pub. L. 108-173).

• Section 935 of the MMA amended Title XVIII of the Social Security Act to add a new paragraph (f) to section 1893 of the act.

• The Department of Health & Human Services (DHHS) expanded upon the rules in Section 1893(f) of the Social Security Act.

• The DHHS codified their expanded §1893(f) rules in the CMS Manual System as Pub 100-06 Medicare Financial Management, for the Centers for Medicare & Medicaid Services (CMS), Transmittal 141. This became effective on September 12, 2008.

• The DHHS refers to the Pub 100-06 rules regarding overpayments as Change Request 6183 (CR 6183).

• The rules in CR 6183 govern the conduct of the RACs (and the claim processing contractors) as the RACs’ attempt to recoup overpayments from providers.

David Mullens, DPM, Esq.

   When you send the request for a reconsideration (QIC) appeal, you must send every piece of evidence you want the ALJ to accept as part of the appeal process. Any piece of evidence you fail to send with your reconsideration appeal request will not be accepted into evidence when you get to the ALJ hearing. Although you may be lucky enough to appear before an ALJ who is lenient and who will allow the additional evidence to be admitted, the last thing you want to rely upon is judicial leniency.

   What evidence should you submit for the reconsideration appeal? In order of significance, here is what you should send to the QIC.

   In regard to medical records, send anything that substantiates the patient’s “at risk” status (e.g. imaging study reports including arteriogram reports, vascular surgery operative reports, vascular lab reports, endocrinology and/or neurology consultation/progress notes, extremity electrical study reports, and rheumatology and/or oncology reports). Also send anything that substantiates the chronicity and severity of the patient’s foot problem(s), with a special emphasis on the previous progress notes that document the patient’s pain associated with the keratomas and nails, etc.

   Also send short articles and selected pages of textbooks and journals that substantiate the treatment at issue. If you send journal articles, send the complete articles. If you send pages from a textbook, send a copy of the title page of the textbook

   Send letters from the authors of the articles or textbooks you have cited. Most medical authors are very willing to help a doctor who is being mistreated by an insurance entity. Do not hesitate to write a letter or e-mail to an author, spelling out the treatment details regarding your patient and asking for his or her response. Be careful with this request. You must be scrupulously honest in describing the facts of your provider dispute in your letter/email to the author because you can bet the judge will want to see exactly what you sent to the author that elicited a response favorable to your position.

   It is optional to send complimentary copies of other local coverage determinations (LCDs) on the topic at issue where the LCDs from other jurisdictions are supportive of your position. However, you do not have to do this. The LCDs are considered internal to Medicare and the ALJ will have the staff dig up any LCD you reference during the hearing. If you quote a sentence from another jurisdiction’s LCD, be sure you quote it in context. Lifting a sentence out of context from an LCD will be looked at very unfavorably by the ALJ.

   A carrier advisory committee (CAC) representative from your Medicare jurisdiction should be the expert witness appearing on your behalf at the ALJ hearing.

   If you have an attorney through your malpractice policy, why keep track of any of this yourself? There are a few reasons. No matter how great your attorney is, that attorney has lots of clients and lots of cases.

   You are the only person who can and will keep track of the documents in your overpayment case. If you review your overpayment file for ten minutes once a week, from the time you first receive the demand for chart copies right up until the ALJ hearing, you will have every fact at your fingertips. You will be able to help your attorney during the last few days of preparation before the hearing so your attorney will be best able to represent you at the hearing.

Dr. Mullens is an attending podiatric surgeon at Stanford University Hospital in Stanford, Calif., and has been in private practice for over 30 years. He has authored numerous articles and book chapters on lower extremity impairments, and has served as both a Clinical Associate Professor at Stanford University School of Medicine and as a Professor of Podiatric Medicine at the former California College of Podiatric Medicine.


1. Medicare Learning Network. Available at: http://www.cms.hhs.gov/MLNMattersArticles/downloads/MM6183.pdf.

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