[ANNOUNCE} Open Letter to the O&P Profession Regarding Medicare RAC/Pre-payment Audits and the Complaint Filed in the U.S District Court
Tina Moran
Description
Collection
Title:
[ANNOUNCE} Open Letter to the O&P Profession Regarding Medicare RAC/Pre-payment Audits and the Complaint Filed in the U.S District Court
Creator:
Tina Moran
Date:
5/14/2013
Text:
May 14, 2013
Dear O&P Professional,
We are writing to inform you that AOPA has filed suit against HHS in the Federal District Court for the District of Columbia. Our complaint seeks relief from the unfair and unauthorized actions of the Center for Medicare and Medicaid Services, primarily via actions of its RAC auditors and DME MACs relating to physician documentation requirements.
AOPA has never before sued the federal government. Only the extraordinary circumstances and unprecedented adverse impact the actions of CMS' contractors/auditors have had on quality of Medicare amputee care and the cash flow dismantling of O&P practices across the country mandated this extreme effort to do something quickly to resolve this issue for the continued viability of the O&P field and the patients served.
Today, AOPA has stated emphatically that we will not stand by when government acts inappropriately to threaten either the quality of care we provide to our patients or the economic viability of the small businesses and providers that comprise the orthotics and prosthetics profession. While we did not know it 20 months ago, August 2011 was a benchmark month for the vitality of the O&P profession, and for the quality of care that we provide to our patients. During that month, the HHS Office of Inspector General released a flawed, and in some respects amateurish, report alleging fraud in the O&P field where there essentially was none. The report: (1) misunderstood that patients don't go to their physician when their prosthesis is not working properly; (2) misunderstood that it is not unusual that most Medicare amputees may not see the 'referring physician' who first prescribed their prosthetic care because that physician is commonly the surgeon who amputated their limb; (3) created extensive confusion about whether bi-lateral amputees should have both prostheses on a single claim or two separate claims; (4) leapt to conclusions of fraud because claims costs had increased with a fixed number of Medicare amputee beneficiaries while failing to recognize that Iraq-Afghanistan had prompted a quantum leap in technology (and a related incremental increase in unit cost) which together with CMS-approved O&P fee schedule increases (after years of 'freeze') had indeed driven per capita increases; and (5) failed to track as required by BIPA 427 whether or not care providers were, or were not, qualified providers under federal law. But the worst thing this flawed OIG report did was trigger an adverse change in the quality of patient care for Medicare beneficiaries.
Someone at Medicare should have known better. CMS leadership or its DME MAC contractors should have pointed out the flaws in this OIG report and pushed back. But no one did. In fact, without any process for the stakeholder input that is guaranteed by federal law, CMS also in August 2011, through the actions of its DME MAC contractors, dramatically revised the standards by which a prosthetic claim would be judged for reimbursement approval. This was done by simply circulating unilaterally a Dear Physician letter. We believe that in doing so Medicare violated the law, specifically the federal Administrative Procedure Act and the Medicare Act. Then CMS contractors/auditors proceeded to apply this ill-conceived new standard retroactively to claw back money on claims which no one asserts involved any fraud, but which originated years before CMS contractors devised the new standard.
O&P has fought at every turn over the past 20 months to try to explain and persuade CMS that its actions on this matter are unfair, contrary to the statutes and detrimental to the care provided to Medicare beneficiaries. All of this we believe was done in the name of saving Medicare dollars against the backdrop of the Affordable Care Act's promise to extract $750 billion over ten years from Medicare providers. In addition, it ramped up commissions for RAC auditors whose independence is fundamentally compromised by the fact that they are paid a bounty based on a percentage of the claims dollars they claw back. We have met with virtually every ranking official at CMS, including three meetings with the CMS Administrator. Thirty-five members of the U.S. House recently signed a letter to the Secretary of HHS seeking relief for O&P and our Medicare patients. A chronology of many of the actions AOPA has taken is available for your review at the following link <URL Redacted>. But, despite knocking on every door, little if anything substantive has been done by Medicare to remedy this unworkable situation.
We don't have to tell you that in a profession populated largely by modest-sized businesses, this massive 'claw-back' of amounts already paid, coupled with Medicare largely turning off the spigot of new payments by invoking sometimes seemingly universal pre-payment audits of prosthetic claims, has strangled the cash-flow of patient care facilities. Manufacturers of the O&P components which have been so instrumental in advancing O&P technology and the quality of patient care have found that the O&P practitioners have often had to select lower functioning components in order to reduce costs, and ultimately have been unable to pay their bills on a timely basis. Some plants formerly with two manufacturing shifts have been forced to reduce to one, layoffs have followed and some producers are looking at shifting manufacturing outside the U.S.
The OIG/CMS action has changed the standard of care, often forcing practitioners to choose between meeting the patient's immediate need for a prosthesis by providing a less sophisticated device, rather than endure long delays in care triggered by the paper chase with physicians. The truth is that CMS wants physicians to provide more documentation, but isn't willing to pay them anymore. Physicians have pushed back, refusing to provide more documentation for prosthetic care. In one sense, many physicians do not 'have a dog in the fight.' O&P professionals (and less directly component manufacturers) and our Medicare beneficiary patients have suffered the collateral damage as Medicare and physicians lob artillery fire over our heads.
Many patient care facilities have closed or been sold as a result of these Medicare-induced financial pressures, and you have said if we can't find a way to get this problem fixed, the entire field is at grave risk. Under these dire circumstances, AOPA, having exhausted all other prospects for relief, has little choice but to place this matter, and the future of our profession as well as the quality of care delivered to Medicare amputee beneficiaries, in the hands of the courts. You may review the complaint AOPA has filed ( <URL Redacted>) with the assistance of the experienced Medicare litigation firm Winston & Strawn, and the relief AOPA has requested which appears on pages 23 and 24.
Our closing plea is that AOPA needs your help. This is a time when we must unite. We need EVERY O&P firm to join as a member of AOPA. AOPA has put its own financial future on the line. Please note that the relief sought in the lawsuit is only on behalf of AOPA members. The final link in this letter is to an AOPA membership application <URL Redacted>. Join AOPA and join the cause of saving our profession. Yes, it will cost folks some money-yes, times are very hard. But they're not likely to get better unless we win this battle that threatens the very existence of your business. We will keep you informed of significant developments as the litigation proceeds.
Sincerely,
Thomas F. Kirk Thomas F. Fise
AOPA President Executive Director
On Behalf Your Officers and Directors
President-Elect Anita Liberman-Lampear, MA; Vice President Charles H. Dankmeyer, Jr., CPO; Immediate Past President Thomas V. DiBello, CP, FAAOP; Treasurer Jim Weber, MBA; and Members of the Board Directors: Kel Bergmann, CPO; James Campbell, PhD, CO; Jeff Collins, CPA; Mike Hamontree; Alfred E. Kritter, Jr., CPO, FAAOP; Eileen Levis; Ron Manganiello; Dave McGill; Michael Oros, CPO, Scott Schneider.
Dear O&P Professional,
We are writing to inform you that AOPA has filed suit against HHS in the Federal District Court for the District of Columbia. Our complaint seeks relief from the unfair and unauthorized actions of the Center for Medicare and Medicaid Services, primarily via actions of its RAC auditors and DME MACs relating to physician documentation requirements.
AOPA has never before sued the federal government. Only the extraordinary circumstances and unprecedented adverse impact the actions of CMS' contractors/auditors have had on quality of Medicare amputee care and the cash flow dismantling of O&P practices across the country mandated this extreme effort to do something quickly to resolve this issue for the continued viability of the O&P field and the patients served.
Today, AOPA has stated emphatically that we will not stand by when government acts inappropriately to threaten either the quality of care we provide to our patients or the economic viability of the small businesses and providers that comprise the orthotics and prosthetics profession. While we did not know it 20 months ago, August 2011 was a benchmark month for the vitality of the O&P profession, and for the quality of care that we provide to our patients. During that month, the HHS Office of Inspector General released a flawed, and in some respects amateurish, report alleging fraud in the O&P field where there essentially was none. The report: (1) misunderstood that patients don't go to their physician when their prosthesis is not working properly; (2) misunderstood that it is not unusual that most Medicare amputees may not see the 'referring physician' who first prescribed their prosthetic care because that physician is commonly the surgeon who amputated their limb; (3) created extensive confusion about whether bi-lateral amputees should have both prostheses on a single claim or two separate claims; (4) leapt to conclusions of fraud because claims costs had increased with a fixed number of Medicare amputee beneficiaries while failing to recognize that Iraq-Afghanistan had prompted a quantum leap in technology (and a related incremental increase in unit cost) which together with CMS-approved O&P fee schedule increases (after years of 'freeze') had indeed driven per capita increases; and (5) failed to track as required by BIPA 427 whether or not care providers were, or were not, qualified providers under federal law. But the worst thing this flawed OIG report did was trigger an adverse change in the quality of patient care for Medicare beneficiaries.
Someone at Medicare should have known better. CMS leadership or its DME MAC contractors should have pointed out the flaws in this OIG report and pushed back. But no one did. In fact, without any process for the stakeholder input that is guaranteed by federal law, CMS also in August 2011, through the actions of its DME MAC contractors, dramatically revised the standards by which a prosthetic claim would be judged for reimbursement approval. This was done by simply circulating unilaterally a Dear Physician letter. We believe that in doing so Medicare violated the law, specifically the federal Administrative Procedure Act and the Medicare Act. Then CMS contractors/auditors proceeded to apply this ill-conceived new standard retroactively to claw back money on claims which no one asserts involved any fraud, but which originated years before CMS contractors devised the new standard.
O&P has fought at every turn over the past 20 months to try to explain and persuade CMS that its actions on this matter are unfair, contrary to the statutes and detrimental to the care provided to Medicare beneficiaries. All of this we believe was done in the name of saving Medicare dollars against the backdrop of the Affordable Care Act's promise to extract $750 billion over ten years from Medicare providers. In addition, it ramped up commissions for RAC auditors whose independence is fundamentally compromised by the fact that they are paid a bounty based on a percentage of the claims dollars they claw back. We have met with virtually every ranking official at CMS, including three meetings with the CMS Administrator. Thirty-five members of the U.S. House recently signed a letter to the Secretary of HHS seeking relief for O&P and our Medicare patients. A chronology of many of the actions AOPA has taken is available for your review at the following link <URL Redacted>. But, despite knocking on every door, little if anything substantive has been done by Medicare to remedy this unworkable situation.
We don't have to tell you that in a profession populated largely by modest-sized businesses, this massive 'claw-back' of amounts already paid, coupled with Medicare largely turning off the spigot of new payments by invoking sometimes seemingly universal pre-payment audits of prosthetic claims, has strangled the cash-flow of patient care facilities. Manufacturers of the O&P components which have been so instrumental in advancing O&P technology and the quality of patient care have found that the O&P practitioners have often had to select lower functioning components in order to reduce costs, and ultimately have been unable to pay their bills on a timely basis. Some plants formerly with two manufacturing shifts have been forced to reduce to one, layoffs have followed and some producers are looking at shifting manufacturing outside the U.S.
The OIG/CMS action has changed the standard of care, often forcing practitioners to choose between meeting the patient's immediate need for a prosthesis by providing a less sophisticated device, rather than endure long delays in care triggered by the paper chase with physicians. The truth is that CMS wants physicians to provide more documentation, but isn't willing to pay them anymore. Physicians have pushed back, refusing to provide more documentation for prosthetic care. In one sense, many physicians do not 'have a dog in the fight.' O&P professionals (and less directly component manufacturers) and our Medicare beneficiary patients have suffered the collateral damage as Medicare and physicians lob artillery fire over our heads.
Many patient care facilities have closed or been sold as a result of these Medicare-induced financial pressures, and you have said if we can't find a way to get this problem fixed, the entire field is at grave risk. Under these dire circumstances, AOPA, having exhausted all other prospects for relief, has little choice but to place this matter, and the future of our profession as well as the quality of care delivered to Medicare amputee beneficiaries, in the hands of the courts. You may review the complaint AOPA has filed ( <URL Redacted>) with the assistance of the experienced Medicare litigation firm Winston & Strawn, and the relief AOPA has requested which appears on pages 23 and 24.
Our closing plea is that AOPA needs your help. This is a time when we must unite. We need EVERY O&P firm to join as a member of AOPA. AOPA has put its own financial future on the line. Please note that the relief sought in the lawsuit is only on behalf of AOPA members. The final link in this letter is to an AOPA membership application <URL Redacted>. Join AOPA and join the cause of saving our profession. Yes, it will cost folks some money-yes, times are very hard. But they're not likely to get better unless we win this battle that threatens the very existence of your business. We will keep you informed of significant developments as the litigation proceeds.
Sincerely,
Thomas F. Kirk Thomas F. Fise
AOPA President Executive Director
On Behalf Your Officers and Directors
President-Elect Anita Liberman-Lampear, MA; Vice President Charles H. Dankmeyer, Jr., CPO; Immediate Past President Thomas V. DiBello, CP, FAAOP; Treasurer Jim Weber, MBA; and Members of the Board Directors: Kel Bergmann, CPO; James Campbell, PhD, CO; Jeff Collins, CPA; Mike Hamontree; Alfred E. Kritter, Jr., CPO, FAAOP; Eileen Levis; Ron Manganiello; Dave McGill; Michael Oros, CPO, Scott Schneider.
Citation
Tina Moran, “[ANNOUNCE} Open Letter to the O&P Profession Regarding Medicare RAC/Pre-payment Audits and the Complaint Filed in the U.S District Court,” Digital Resource Foundation for Orthotics and Prosthetics, accessed November 1, 2024, https://library.drfop.org/items/show/235216.
