Brief Your CEO: The New CMS Appeals Process & How to Use It to Get Medicare to Pay

While Part B lab reimbursements may be going down, the good news is that it just became easier to challenge Medicare payment denials. On Feb. 5, 2018, CMS launched a new Low Volume Appeals settlement process that your lab may be in the position to take advantage of. So you may want to explain the process and how it works in your next compliance briefing for the C-Suite. Here’s how:

Prologue: Make Sure Your Lab Is Eligible
Of course, there is no sense doing a briefing on the LVA appeals settlement process, unless and until you make sure your lab is in the position to participate in it. The process is open to Medicare Part A and Part B providers, including labs, as well as physicians and suppliers (referred to collectively as “appellants”) with fewer than 500 combined pending appeals with the Office of Medicare and Appeals and Medicare Appeals Council (Council) at the Departmental Appeals Board as of Nov. 3, 2017. Your lab is not eligible if it is currently involved in False Claims Act (FCA) litigation or subject of a pending criminal, civil or administrative investigation for FCA or other program integrity concerns. Other ineligible appellants include:

  • Beneficiaries, enrollees, their family members or estates;
  • State Medicaid Agencies;
  • Medicare Advantage Organizations (Medicare Part C); and
  • Those that have filed for or expect to file for bankruptcy.

Assuming you determine that your lab is eligible, prepare your CEO briefing and make sure it includes the following five points about the LVA process:

1. The Potential Upside

Start out by explaining what is nearest and dearest to the heart of any executive: the value proposition to your lab. Explain that Medicare payment appeals tend to be time-consuming and costly, not to mention risky. The advantage of the new LVA settlement process is that it offers timely—albeit partial—payment of 62% of the net Medicare approved amount.

2. Which Appeals Are Eligible

Continue by noting that appeals must meet all seven of the following criteria to be eligible for LVA settlement:

  • [_] The appeal was pending before the Office of Medicare Hearing and Appeals (OMHA) and/or Council level as of Nov. 3, 2017;
  • [_] It was properly and timely at the OMHA or Council levels as of Nov. 3, 2017;
  • [_] The appeal is still pending as of the date the LMV agreement is signed (as explained in the Settlement Process section below);
  • [_] The appeal’s total billed amount is $9,000 or less;
  • [_] The claims in the appeal were denied by a Medicare contractor and remain in a fully denied status within the Medicare system;
  • [_] The claims were submitted under either Medicare Part A or B; and
  • [_] The claims are not part of an extrapolation.

3. The All-or-Nothing Condition

Note that if your NPI is approved for participation in the LVA process, the resulting settlement covers all eligible appeals from you. In other words, the appellant is not allowed to choose to settle some eligible appeals but not others.

4. The Settlement Process

The heart of your briefing should be a discussion of the detailed procedural rules your lab must follow to use the LVA process.

First Step: EOI Submission
It is up to your lab, the appellant, to initiate the process by filing a form called a Low Volume Appeals Settlement Expression of Interest (EOI) to CMS at during the appropriate window, based on your NPI.

EOI Submissions Windows

Appellants Designation EOI Window
Appellants with NPIs ending in even numbers (including 0) Feb. 5, 2018 to March 9, 2018
Appellants with NPIs ending in odd numbers March 12, 2018 to April 11, 2018

Labs with multiple NPIs must submit one EOI per NPI with eligible appeals during the appropriate window depending on whether the NPI ends in an odd or even number.

Second Step: Determination of Participation Eligibility
CMS must review the EOI to determine if you are eligible to participate in the LVA process. If so, it will send you:

  • A Spreadsheet of potentially eligible appeals and associated claims; and
  • An Administrative Agreement.

Third Step: Validation & Signing
You must next review the Spreadsheet and either validate it or notify CMS of any discrepancies you identify by submitting an Eligibility Determination Request (EDR) form to within 15 days of receiving the Spreadsheet. If there are no discrepancies, you must also sign the Agreement and send it to CMS for counter signing; if there are discrepancies, Step 4 comes into play.

Fourth Step: Reconciliation
You have 30 days to resolve any identified Spreadsheet discrepancies with CMS. When and if that happens, you must sign the Agreement and send it to CMS for counter signature. Once CMS counter signs, whether via Step 3 or 4, it will send you a copy of the fully executed Agreement.

5. The Withdrawal Right

Conclude by reassuring the executives that if you get cold feet about using the LVA to settle your lab’s pending appeals, you may withdraw from the process and retain full appeal rights, as long as you have not yet returned the signed Agreement to CMS. But once CMS gets the signed Agreement from you, it will “stay,” i.e., freeze proceedings on all of your pending appeals and there will be no turning back.


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