Many physicians, including otolaryngologists, are hailing a Congressional proposal to streamline the audit process of the Centers for Medicare and Medicaid Services (CMS) as a good step forward, even though it is a long shot to be passed into law. “If there’s anything that makes it more balanced, more fair, less burdensome, and less onerous, then that’s a plus,” said otolaryngologist Hayes Wanamaker, MD, who practices at Ear Consultants of Central New York and is chief of otolaryngology at Crouse Hospital in Syracuse, N.Y.
The Audit and Appeal Fairness, Integrity, and Reforms in Medicare (AFIRM) Act of 2015 would speed up the recovery audit (RA) appeal process, formerly known as the recovery audit contractor (RAC) initiative. It would shorten look-back periods, increase transparency, and allow licensed attorneys to serve as Medicare magistrates to adjudicate certain appeals. The proposed legislation, passed by the Senate Committee on Finance in June, is sponsored by Sen. Orrin Hatch (R-Utah).
Chuck Buck, publisher of RACmonitor, an online news outlet focused on government auditing entities, doesn’t think the bill has much chance of success in the current session of Congress. He points to the upcoming presidential election, the controversial treaty on dealing with Iran, and continuing legal fights over the Affordable Care Act as impediments. “It is unlikely, in this current environment, that the bill, no matter how well intended it is, will be passed,” Buck said.
Still, Buck said otolaryngologists and others can take positives from the bill in that the proposed 2016 budget for the U.S. Department of Health and Human Services (HHS) reflects some of the bill’s recommendations. For example, Medicare magistrates, who could hear cases for overworked administrative law judges (ALJs), were included in HHS’ budget after hearings were held on the proposed act. “We must assume that both (Sens.) Hatch and Wyden knew the outcome of their bill beforehand, that it wouldn’t pass,” Buck said. “Nonetheless, they convened hearings and drafted the legislation, which will now, most likely, not be passed but instead will end up as policy.”
The proposal to reform the RA program comes as it struggles with efficacy and success. The Office of Medicare Hearings and Appeals can’t docket appeals for 20 to 24 weeks, Sens. Hatch and Wyden announced over the summer in prompting their bill. In fact, in fiscal year 2009, the majority of appeals were processed in 94 days. In fiscal year 2015, it is expected to take an average of 604 days—more than 18 months.
In addition, some 60% of the 41,000 appeals made to ALJs in fiscal year 2012 were “partially or fully favorable to the defendant,” the senators said in an announcement. “Such a high rate of reversals raises questions about the quality of initial determinations and whether providers and beneficiaries are facing undue burdens on the front end,” they added.
Hopeful for Help
Dr. Wanamaker, president of Health Alliance PO/IPA, a multi-specialty group of some 400 physicians, said that any improvements to the audit program would be beneficial for otolaryngologists. The “onerous” process can consume the time of clerical staff, office managers, accountants, and healthcare attorneys. And all that time means money. “Any time you’re going up against a government agency, they basically have unlimited resources in personnel and dollars and time,” Dr. Wanamaker added. “We certainly don’t, especially with all the other issues we’re coping with.”
He believes that despite the high rate of reversals, many otolaryngologists at small practices settle cases—even if they did nothing wrong—“just to make it go away.”
“The cost of being right and the penalties of being wrong could basically put a practice out of business,” Dr. Wanamaker said.
Some healthcare professionals have said that fears of being audited can cause physicians to practice defensive medicine, ordering tests and procedures that aren’t clinically necessary but that doctors believe might serve as protection from later lawsuits. Dr. Wanamaker framed the issue as otolaryngologists undercoding or undervaluing their work.
“They feel like that is going to insulate them,” he added. “If you’re a specialist that sees a lot of complex patients, your bell-shaped curve of the distribution of visits from Level 2, 3, 4, [and] 5 should be skewed more towards a higher level because you’re seeing more difficult patients with more complex histories and more challenging problems. And there’s a tendency to be afraid to do that for fear of attracting attention, because the peak of their curve has shifted toward a higher level.”
Dr. Wanamaker said one major fear of audit programs is that their existence, while well intentioned to root out fraud and abuse, makes otolaryngologists and others who endure a review feel targeted by the process. “If they latch on to you, you’d like to think they didn’t just have to justify their existence, but most people believe that they’re going to look until they find something,” he added. “And if they look hard enough, the rules are so complex, they will find something even if you’re doing it mostly right.”
Richard Quinn is a freelance medical writer based in New Jersey.