This transcript has been auto generated
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Meg Pekarske
Hello and welcome to Hospice Insights: The Law and Beyond where we connect you to what matters in the ever changing world of hospice and palliative care. Part One - What's the Latest on UPICs: Highlights from Recent Audit Activity. Bryan, my favorite podcast partner. Wow, this is I feel like, was this the subject of our first podcast ever? Like, I don't know how many years ago now I feel like UPICs so six, seven years later we're still talking about them, but there's new stuff.
00;00;39;03 - 00;00;42;01
Meg Pekarske
Some new like old is new and new, new.
00;00;42;01 - 00;00;59;11
Bryan Nowicki
Yeah, everything old is new again or there's nothing new under the sun, you know, however you want to put it. Yeah, it, it seems like we're in this cycle of talking about audits. There is they do run in cycles in terms of how frequent they are, the tactics they use. Every once in a while, they do something new.
00;01;00;14 - 00;01;15;19
Bryan Nowicki
But but yeah here we are talking again about UPICs but it's important stuff. I mean, UPICs are the the fraud investigators and auditors. It's usually pretty high stakes when they're out there. So we want to make sure the hospices are aware of the latest news with what's going on.
00;01;15;27 - 00;01;23;05
Meg Pekarske
So it could really be like part 20 or 30 or maybe you should keep a running last. But but we burn the.
00;01;23;05 - 00;01;26;24
Bryan Nowicki
Book, right? I'm writing a book about you could be chapter 32 now.
00;01;26;24 - 00;01;56;02
Meg Pekarske
So, um, so, but we're dividing this podcast so it's bite sized into two parts. So the first part that we're going to talk about is extrapolation, which is, and sort of a new thing, but some, some new trends going on there. And then we're going to talk about nursing home room and board payments because everyone probably listening knows that UPICs a number of years ago actually their role was expanded.
00;01;56;02 - 00;02;20;16
Meg Pekarske
They used to be called ZPIC and they did Medicare and then they changed their name, the Unified Program Integrity Contractor audit. And then CMS gave them the responsibility to do not just Medicare, but also Medicaid. And how the Medicaid audits work and Medicare are in some ways similar, but they're also really different. We're not going to get into all of that stuff.
00;02;20;16 - 00;02;46;28
Meg Pekarske
But obviously when you talk about Medicaid and hospice, you got to talk about nursing home room and board, because I feel like any time you try to get into this or even when ZPIC tried to do this, they get very confused about what is a hospice service. And then what is a non hospice service. So that's what we're going to cover here and these few minutes in part one and then we're going to talk about some other stuff in part two.
00;02;46;28 - 00;03;09;11
Meg Pekarske
But but our favorite topic extrapolation. And so we've been doing battle on these issues for many, many, many years. But what's the new stuff that we should be talking about? Because it is there was not much going on and now there has been more activity. So so what's the latest, Bryan?
00;03;09;18 - 00;03;37;28
Bryan Nowicki
Yeah, well, the latest is the law has been developing and there are, I think, new approaches that the auditors are taking to extrapolation, which has led to new ways to try to attack what they are doing or criticize them as legally insufficient. So in this whole cyclical nature of audit said that we have been talking about Meg, you know, years ago we kind of encountered an extrapolation and we found ways to undermine them.
00;03;37;29 - 00;03;59;02
Bryan Nowicki
You know, none of our clients had had to ever pay an extrapolated overpayment because we found flaws in how they assembled the universe and all that. Then those audits subsided or the extrapolation subsided, then they've come back and and some of the new arguments are being developed at the Federal Court level, and we're a part of that as well.
00;03;59;22 - 00;04;28;14
Bryan Nowicki
And so it just shows that no matter how often they do it, there's always new creative ways to try to attack what attack what they're doing and show it as legally insufficient. And it's really important to invest the resources in a statistician retained by counsel to get this done. Because when you're talking extrapolations, we've had them anywhere from $1 million to $48 million and a bunch in the 20 millions.
00;04;28;14 - 00;04;31;28
Bryan Nowicki
It's a bet the company type of stuff for most hospices.
00;04;32;00 - 00;05;09;07
Meg Pekarske
And that's where you know that the underlying face value overpayment is always like if it's $100,000, that might be so it is really the thing that makes this so gigantic. And so we always talk about there's two ways to win an extrapolated case, which is one you beat on the statistics or you chisel down by winning individual claims, because then obviously if you win everything, who cares if it's extrapolated zero, extrapolate it I think is so zero.
00;05;09;27 - 00;05;11;11
Meg Pekarske
Right. And well.
00;05;11;11 - 00;05;16;29
Bryan Nowicki
Yeah. They haven't figured out a way around that yet, but maybe that's what we'll be podcasting about next year, so we'll see.
00;05;16;29 - 00;05;22;05
Meg Pekarske
Oh, it's not just like if someone dies, that doesn't mean they're terminally ill.
00;05;22;18 - 00;05;24;24
Bryan Nowicki
Well, of course not. That don't.
00;05;24;24 - 00;05;25;05
Meg Pekarske
Jump to.
00;05;25;11 - 00;05;26;09
Bryan Nowicki
Conclusions.
00;05;26;18 - 00;05;48;09
Meg Pekarske
Yeah, death is not indicative of criminality, but I talk about a side, so at least for right now, zero is zero. So if you chisel all the way down to something very small and sometimes even less than zero, you can't extrapolate it because it's too imprecise. But, you know, what are you finding in this latest round of extrapolations?
00;05;48;24 - 00;06;04;04
Bryan Nowicki
Right. So what has been happening in the latest round and what what we and providers have been picking up on is that some auditors are not being fully transparent in the documentation they are providing relating to the extrapolation.
00;06;04;14 - 00;06;06;02
Meg Pekarske
No, Bryan, and.
00;06;06;23 - 00;06;33;23
Bryan Nowicki
There's a bit of a lack of transparency. I know it goes against every instinct of theirs. Perhaps to be transparent. But the the Medicare Program Integrity Manual requires the auditors to provide documents zation such that the provider can replicate or recreate certain aspects of the sale of the audit of the extrapolation such as the sampling frame or the sample.
00;06;34;17 - 00;07;09;17
Bryan Nowicki
And in order for that replication or recreation to be carried out, we need to have a lot of documents so you can track how they identified the universe, which is typically every claim submitted by the hospice over, let's say, a two year period. How they went from that that set of claims to a sampling frame which may have excluded certain parts of the universe, such as zero paid claims or claims that were previously adjudicated.
00;07;09;17 - 00;07;30;08
Bryan Nowicki
And that's how you get to the sampling frame, which could still be tens of thousands of claims. And then we need to know how did they get from the sampling frame to the sample, which could be, you know, 30 to 100 claims? And it's that sample that they review and extrapolate from. So you get 30 claims. They deny half of them.
00;07;31;02 - 00;07;57;22
Bryan Nowicki
Like you said, the overpayment for 15 claims, maybe that's $75,000 or 100,000. But they extrapolate it to the entire sampling frame or universe and that's where you get the millions of dollars. So picking away at those claims in the sample, but also if they're not going to give us the documentation to recreate or replicate some of these things, that's a that's a basis on which to invalidate the entire sampling process.
00;07;58;15 - 00;08;24;15
Meg Pekarske
And all this stuff. Probably sounding great to most people. But this is something, as you said, you can't do this alone. And even as smart as lawyers are right and capable of anything right, we're still not statisticians. And you really need someone with the qualifications because they're going to just like you need, you know, an expert physician to testify.
00;08;24;15 - 00;09;07;18
Meg Pekarske
You still need an expert statistician. And this is something you don't want to wait till, you know, late in the game to bring up because you want to, you know, develop these arguments out of the box, even though these if you're going to win on them, it's probably not going to happen till. ALJ You just really want to start, you know, building these arguments because I think, Bryan, in some of these cases we're working on, even though it's not overturned at lower levels, we start getting additional information sometimes or because oftentimes we're doing Freedom of Information Act requests, sometimes related to to get documents.
00;09;07;18 - 00;09;16;15
Meg Pekarske
And so sometimes you're getting additional documents throughout the process, but then you need to update your arguments for and all that stuff.
00;09;16;15 - 00;09;43;03
Bryan Nowicki
So exactly. And the government, they're continuing to evaluate the statistical issues as well. So when you go through the appeal process and I agree, Maggie, you got to have a statistician early on because you want the government to start reacting to your arguments. The the MAX, the Medicare administrative contractors. They may send a statisticians report out to their own statistician for comment and then they'll generate another report.
00;09;43;16 - 00;10;09;23
Bryan Nowicki
The same with the quick. And again, they're not always super transparent in a recent case we learned we learned that the I think it was the quick had actually sent out their our report our statistician and report to an independent statistician. I think it might have been referenced in the reconsideration decision, but they never gave us anything from that third party statistician.
00;10;09;23 - 00;10;34;11
Bryan Nowicki
So then we were asking about that. Well, you got to give us that. They gave it to us. And lo and behold, that report actually helped our case. And so now that's become an important exhibit for us because there's some agreement between our statistician and the people, the statistician that the quick retained about the implications for some problems with the statistical exercise.
00;10;34;11 - 00;10;52;24
Bryan Nowicki
So you got to keep on them. You got to make sure you're reading carefully decisions like you said, Freedom of Information Act request. Don't don't trust that the government is giving you every document that is relevant. You got to do your own due diligence and pursue those. And maybe you'll come up with something very valuable like we have.
00;10;53;13 - 00;11;16;07
Meg Pekarske
Which I don't want to be braggy. Bryan but this is why for the best in the country are doing this. We've been doing it a long time and I think we are relentless and find new ways to do things and you know, get information that can be helpful. And so, I mean, you just can't the same old same old is not how you do it.
00;11;16;07 - 00;11;38;11
Meg Pekarske
I mean, the general framework has stayed the same to some extent, but I think how we approach these cases continues to evolve and we learn new things and stuff like that. So I think and the volume of the work that we do, it's just we end up having so much experience and yeah. And around.
00;11;38;11 - 00;12;00;20
Bryan Nowicki
Yeah. And it's kind of like as we work with physicians, I don't think it's something that you could just hire a statistician because there's a, there's a collaboration between us and the statisticians because they don't necessarily know hospice or can pick up on some of the arguments. So we've worked with statisticians to enlighten them on new arguments and ideas and vice versa.
00;12;00;20 - 00;12;33;02
Bryan Nowicki
So it's really the combination that exists that has allowed us to be very comprehensive and, like you said, relentless in our efforts. Another new issue that you might want to look out for, if you're the subject of an extrapolation, is what are these statisticians excluding from the universe or sampling frame? And a pretty hot button issue now is are they excluding what they call zero paid claims or are they excluding claims of less than a certain dollar value, like less than $1,000?
00;12;34;04 - 00;13;04;06
Bryan Nowicki
There's there's a court activity around whether that's appropriate, because when they exclude zero paid or less than $1,000 paid claims, they're taking away potentially a lot of claims that would reduce an extrapolated overpayment. I mean, you can imagine if the only thing they're pulling are claims worth 10,000 or more and they're denying them, then that's 10,000 a pop that's extrapolated as opposed to them reviewing a $200 claim or a $400 claim and denying that.
00;13;04;06 - 00;13;22;24
Bryan Nowicki
So if you see that and you should get statistical document that, lay out some of the parameters of the analysis so you can check that for yourself. But if you see anything like that, get get counsel, get a statistician and they can help develop or identify other opportunities for you in these arguments.
00;13;23;18 - 00;14;00;08
Meg Pekarske
Well, and moving on to the room and board issue, which is also a really big dollar value issue because and the upshot here is that a common mistake that is made by state auditors, Medicaid auditors, as well as UPIC is they look at how much we were paid by Medicaid and they don't think about whether or not, you know, the payments represent room and board payments for hospice patients.
00;14;00;08 - 00;14;26;24
Meg Pekarske
So and there is a lot more Medicaid UPICs going on. So that's sort of in and of itself a new sort of try. And it's not like the first of their kind, but they're researching again. But the very first thing you want to do when you get a UPIC audit and it has Medicaid, the first question is, are these Medicaid only patients or are they dual eligible?
00;14;26;24 - 00;14;56;24
Meg Pekarske
Because if they're looking at anyone who's dual eligible, what does that mean? That means that Medicare paid for the hospice services and Medicaid paid for their room and board services. And even the federal OIG has said and we cite this to auditors, is that the pass through room and board payment, that's not hospice services and the hospice conditions of payment do not apply to nursing home room and board services.
00;14;56;24 - 00;15;26;13
Meg Pekarske
So there is not if they're pulling only dual eligible patients, then they're not auditing Medicaid hospice claims. They're auditing Medicaid room and board, which whether or not they're eligible for hospice, has nothing to do with that. Right. But I feel like the very first UPIC or it was epic back then audit I worked on, which is probably I don't know, could it be 15 years ago?
00;15;26;14 - 00;15;54;29
Meg Pekarske
I mean, Sister Mary, when you were on our team, you were just 19. You were 19 because I'm a prodigy. We were we had to go to battle over with health, integrity, over this issue. And I think we've made shorter work of it as of late. But it's still troubling to me that we have to, you know, people have to pay legal fees and other things to deal with this.
00;15;54;29 - 00;16;14;19
Meg Pekarske
But I think the word to the wise here, though, is before you spend a bunch of time gathering records and doing all this stuff, are these actually Medicaid hospice patients or are they all dual eligibles living in a nursing home? And so, you know, because you want to get out ahead of this as soon as possible.
00;16;15;08 - 00;16;36;15
Bryan Nowicki
Yeah. And the like you said, Meg, the financial stakes are significant and the room and board can be as much as or more than the hospice payments you're receiving. So we worked on this in Florida not too long ago where auditors initially had come in and they were identifying both the hospice payment and the room and board payment, and that was with Medicaid patients.
00;16;36;15 - 00;17;00;29
Bryan Nowicki
But it still applies there even for Medicaid patients on the Medicaid hospice benefit, the room and board aspect of that is not a hospice services, and it should not be they should not be going after the hospice for those kinds of payments. Once we raise that their attention and advocated for it and kind of finally convinced them of that, it cut the overpayment in half just like that.
00;17;00;29 - 00;17;24;12
Bryan Nowicki
And on the Medicare side, what what or on the UPIC side, what can be a little confusing is now, as you said, they are unified program integrity contractors. They do both. However, it seems like internally they have different staff doing the Medicare and the Medicaid side. And sometimes I think they get a bit confused about what their particular role is.
00;17;24;12 - 00;17;53;06
Bryan Nowicki
So you get a met you get a letter from a UPIC like safeguard or clearance. They should tell you initially in the first couple paragraphs, is this a medicare or Medicaid audit? And that is your clue. If you say Medicaid, if you see Medicaid audit, you'll again look at those patients, because we recently had one where they said this is a medicaid audit, but these were patients who are duly eligible receiving the hospice Medicare benefit and pass through.
00;17;53;19 - 00;18;15;00
Bryan Nowicki
Once we alerted them to that. And Meg kind of used the arguments that have been tried and true for us over the years. The audit was terminated and I think that's because they have finally realized, yeah, as Medicaid auditors, there's nothing for us to do here. These are Medicare hospice payments and the Medicaid room and board is not a hospice services.
00;18;15;00 - 00;18;34;12
Bryan Nowicki
So why are we bugging a hospice about that? Yeah, these are the same auditors who do this repeatedly, so it's not like they learn. Yeah, because I'm sure they have turnover and whatnot, but we kind of make the these arguments cyclically, you know, as it comes out, we, we dust off the arguments and then make them again and it should be a result you can achieve.
00;18;35;05 - 00;18;41;25
Bryan Nowicki
But you got to you got to kind of keep track of the law as it's developing and know how to make the argument in a in a persuasive way.
00;18;42;12 - 00;19;10;26
Meg Pekarske
Yeah. And the big takeaway there is don't talking to a lawyer sort of really when you get that record a class like day wide because then in terms of figuring out how you want to respond because sometimes people are like, oh, I'll handle the record requests by myself. And then it's like, you don't want to wait to then get a demand for this to then bring up this issue because you're going to have to spend more money and to have a demand out there.
00;19;10;26 - 00;19;15;23
Meg Pekarske
I mean, it just, you know, it's it's you want to go out and had it because.
00;19;16;00 - 00;19;23;13
Bryan Nowicki
We hadn't the government may have your money by that time. So now you're chasing after it as opposed to preventing them from taking the money in the first place.
00;19;23;25 - 00;19;56;25
Meg Pekarske
And like we said, this is money you don't have. Right. You probably got 95% of that passed it through, plus paid the other 5%, which the federal government said isn't a kickback. So you're out. This is money that you never got, you don't have in your bank account. You can't recoup it from the nursing home. I mean, it's it's, you know, significant financially because you don't have to have any of this this money.
00;19;57;17 - 00;20;11;09
Meg Pekarske
So anyway. Well, those are the nuggets for today, Bryan, but we're going to move on to part two for next time. I can't wait. I can't. Right, Bryan.
00;20;11;13 - 00;20;18;17
Bryan Nowicki
There's some teasers in the description, so you'll have to, you know, remain on the edge of your seat and then we'll get into the part two issues.
00;20;18;17 - 00;20;29;24
Meg Pekarske
But since we released podcasts every three weeks, we'll have to wait. So but I'll do, we'll do them sequentially. So you only have to wait a mere three weeks to hear part two.
00;20;29;28 - 00;20;31;26
Bryan Nowicki
Awfully generous of you make I think that's.
00;20;34;00 - 00;20;36;13
Meg Pekarske
Awesome. All right till next time, Bryan.
00;20;36;23 - 00;20;39;28
Bryan Nowicki
Thanks, Meg.
00;20;39;28 - 00;20;57;11
Meg Pekarske
Well, that's it for today's episode of Hospice Insights: The Law and Beyond. Thank you for joining the conversation. To subscribe to our podcast, visit our website at huschblackwell.com or sign up wherever you get your podcasts. Until next time, may the wind be at your back.