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CMS Audits Resume During Public Health Emergency

Despite the ongoing public health emergency from the 2019 Novel Coronavirus (“COVID-19” or “COVID”), the Centers for Medicare & Medicaid Services (“CMS”) were encouraged by the Center for Program Integrity (“CPI”) to resume conducting Recovery Audit Contractor (“RAC”) and Medicare Administrative Contractor (“MAC”) audits. Some of the audits that are of high priority are post-payment reviews of COVID claims submitted prior to March 1, 2020. CMS has not yet stated when they will be auditing claims submitted after March 1, 2020 and throughout the current public health emergency, but experts expect these audits to begin in the coming months.

In fact, the CMS “Coronavirus Disease 2019 Provider Burden Relief FAQ” states that even if the public health emergency continues, it will lift the suspension of audits beginning on August 3, 2020 (though most providers will not see requests for review until at least a month after that). The audits will be done pursuant to existing statutory and regulatory provisions, but any waiver or flexibility allowed for any date of service which is under review will be considered in the audit.

In addition to those audits, CMS has also announced a new requirement to obtain reimbursement for COVID patients. Beginning on September 1, 2020, in order to receive the 20% Medicare reimbursement add-on payment for a COVID patient, the provider must document a positive COVID test in the patient’s chart. This new guidance applies only to Inpatient Prospective Payment Systems (“IPPS”), Long-Term Care Hospitals (“LCTHs”), and Inpatient Rehabilitation Facilities (“IRFs”). The guidance states that CMS will continue to automatically apply the 20% add-on payment for COVID-19 claims and will enforce the requirement through post-payment audits. The 20% add-on payment will be recouped if no positive COVID test is found in the patient’s chart.

Many providers are concerned about this positive test requirement. With the accuracy of many COVID tests being questioned by the medical and scientific community, providers often do not have a positive COVID test to document, though the patients still exhibit all of the COVID-19 symptoms. Providers encourage CMS to allow diagnosis on clinical judgment alone while still being able to receive the 20% add-on payment. Additionally, the positive test must be a positive viral test consistent with the CDC guidelines, so many state or local COVID-19 tests that many providers were utilizing will no longer be sufficient for Medicare reimbursement.

The CPI is also looking into introducing remote audits. Historically, RAC and MAC audits are done in person, wherein auditors physically come to the audited organization and go through paperwork for days on end. Certainly, during the COVID-19 pandemic, these in-person audits are much riskier and less desirable. With the introduction of remote audits, not only will auditors be less exposed to COVID-19, but they will also be less burdensome on the organization, more organized, and create a digital record of the audit, among other benefits.

Providers should also be aware of audits regarding remote patient monitoring (“RPM”) coding. As of April 30, 2020, providers are permitted to report RPM to Medicare for periods of time between 2 and 16 days as long as the public health emergency is still occurring. Providers are required to demonstrate medical necessity in the patient’s chart, as failure to document such would result in a denial of all RPM codes submitted.

For over 30 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments by CMS. Wachler & Associates will continue to stay up to date with all other COVID-19-related news.  If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.

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