Friend or Foe?
During an audit appeal, the majority of improperly denied claims are overturned, if at all, at the Administrative Law Judge (ALJ) level. This is because ALJs are able to apply rationality and compassion to the Medicare rules, unlike contractors. Or are they? Recently, ALJs have begun to apply Medicare rules with the same inflexibility as contractors. What’s more, in some cases the ALJs are not even applying the appropriate legal standard.
For example, several weeks ago I read an ALJ opinion that could be the poster child for ALJ abuse of process. The beneficiary was an 81 year-old woman whose medical history included stroke, osteoarthritis, morbid obesity, dysphasia and right-side hemiparesis. In late 2008 she fell in her home. After a brief hospital stay her physician ordered her to receive inpatient physical therapy. Upon leaving physical therapy in 2009 the beneficiary was prescribed a wheelchair. In the end, the ALJ denied the claim because the medical documentation did not provide the specific mobility-related activities of daily living the beneficiary could not accomplish, or indicate whether a cane or walker could adequately resolve the beneficiary’s limitation problems. Moreover, the ALJ stated that she did not require a wheelchair because the physical therapy notes indicated the patient could ambulate with a walker, with minimal assistance, for 20 feet.
The court’s analysis in this matter suggests that ALJs are failing to apply common sense and personal experience when rendering decisions. As a result, it is incumbent upon the DME industry to advocate more persuasively. Several suggestions follow that may help DME providers overcome the requisite evidentiary threshold placed on appellants:
Personalize the claim—After adjudicating thousands of claims, ALJs become involuntarily immune to the fact that each claim concerns a person who has real medical needs. During the hearing remind the ALJ that the claim at issue is not about money, but rather the health and well-being of an elderly person. Moreover, invite the beneficiary to the hearing to testify as to why they needed, or continue to need, the specific DME item(s). ALJs give more credence to patient testimony than almost anyone else. Emphasize the point that if the claim is not paid, the patient may be forced to return the equipment.