AMARILLO, TX – Post-payment audits (by DME MACs, ZPICs, and RACs) are a permanent part of the DME industry.  Regardless of how thorough the DME supplier’s patient files are, the chances of winning at the audit stage are small.  This is because the auditor is looking for a reason to deny a claim and demand a repayment.  As a result, if subjected to an audit, the DME supplier can expect to traverse the various administrative appeal stages.

This is Part Four of a four part series on the administrative appeals process.  Part One addressed the redetermination level of appeal.  Part Two addressed the reconsideration level of appeal.  Part Three addressed the administrative law judge level of appeal.  Part Four addresses the Medicare Appeals Counsel/judicial review levels of appeal.

MAC Appeals
A supplier dissatisfied with an ALJ decision may file a written request for a MAC review within 60 days after receiving the ALJ decision (or dismissal).  The final level of administrative appeal is a review by the MAC.  The MAC may also decide on its own to review an ALJ decision or dismissal.  CMS may also refer a case to the MAC for the MAC to consider reviewing it on its own within 60 days of the ALJ decision.  A supplier may file objections to CMS’s referral to the MAC within 20 days of the referral notice.

For most cases, suppliers should pursue all appeals at least though the ALJ level.  A determination of medical necessity can be very subjective and different reviewers may see the documentation more favorable and allow the claim.  Whether or not to pursue a MAC appeal should be decided based on the facts of the claim at issue, and not all claims are appropriate for appeal at this level.

A request for MAC review must be filed in writing to the MAC and be made either on a standard form or other writing.  Such other writing must include the following to be accepted:
• Beneficiary’s name;
• Medicare health insurance claim number;
• The specific service(s) or item(s) for which the review is requested;
• The specific date(s) of service;
• The date of the ALJ’s decision or dismissal order, if any;
• If the party is requesting escalation from the ALJ to the MAC, the hearing office in which the appellant’s request for hearing is pending;
• The name and signature of the party or the representative of the party;
• And any other information CMS may decide.

The request for MAC review must identify the parts of the ALJ decision with which the appellant disagrees and explain why it disagrees with the ALJ decision. The MAC will limit its review to those exceptions raised by the request for review, unless the appellant is an unrepresented beneficiary.

The MAC will give, upon request, a reasonable opportunity to file briefs or other written statements about the facts and law relevant to the case.  The MAC will only consider the evidence contained in the ALJ’s record, unless the ALJ decision contained new issues that the parties did not have a chance to address. If the MAC determines that additional evidence is needed to resolve the issues in the case and the hearing record indicates that the previous decision-makers (QIC, ALJ, etc.) have not attempted to obtain the evidence, the MAC may remand the case to an ALJ to obtain the evidence and issue a new decision.

If new evidence related to issues previously considered by the QIC is submitted to the MAC by a supplier, the MAC must determine if the supplier had good cause for submitting it for the first time at the MAC level. If not, the MAC will exclude the evidence.

When the MAC excludes evidence, it must give notice thereof to all parties.  The MAC may, either on its own or upon request, issue a subpoena for evidence that is material to an issue at the hearing, but may not issue such subpoena to CMS or its contractors.

The MAC generally decides a case from the record. However, the MAC may grant a party’s request to present oral arguments if it decides that the case raises an important question of law, policy, or fact that cannot be readily decided based on written submissions alone.  

If the MAC decides on its own that oral argument is necessary, it will give the parties notice of the time and place for oral argument at least 10 days prior to the scheduled date.

Judicial Review
A supplier may request court review of the MAC decision by filing a complaint (i.e., lawsuit) with the U.S. District Court. The complaint must be filed within 60 days after the date the supplier receives notice of the MAC’s decision.

To qualify for judicial review, the amount in controversy must be greater than or equal to $1,220.  This is typically a very expensive process and few cases are actually filed in federal court for this reason.

Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato PC, a law firm based in Amarillo, Tex. He represents pharmacies, infusion companies, HME companies, and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].