FAIR Fund had an active decade defending the collective rights of IRF providers and the patients they serve. We employed multiple legal strategies to accomplish our goals. Following is a brief summary of the many activities we have pursued on behalf of members and the entire IRF field.
Actively engaged in litigation to force the Department of Health and Human Services (HHS) to decide administrative law judge (ALJ) appeals within the 90-day deadline required by the Medicare statute. The FAIR Fund submitted four friend-of-the-court briefs to the D.C. Circuit Court of Appeals, the Fourth Circuit Court of Appeals, the U.S. District Court for the District of Columbia, and the U.S. District Court for the Eastern District of North Carolina in support of hospitals seeking to enforce the deadline.
The FAIR Fund’s briefs educated the courts about the particular impact of the ALJ backlog on IRFs and their patients.
The FAIR Fund’s briefs were cited favorably by the D.C. Circuit and the D.C. District Court. The FAIR Fund helped convince the D.C. Circuit that the ALJ backlog is having a real impact on human health and welfare, which was a significant factor supporting the D.C. District court’s subsequent order requiring HHS to clear the ALJ backlog.
Spearheaded opposition to Medicare contractors that reopen old claims by representing Palomar Medical Center in an important case in the Ninth Circuit Court of Appeals.
Challenged IRF medical necessity denials to the Medicare Appeals Council, ordered the ALJ to hear testimony by an independent medical expert and to more thoroughly analyze the appeals. These cases were resolved in the provider’s favor.
Advocacy from a Legal Perspective
Negotiated with officials from the Centers for Medicare & Medicaid Services (CMS) to settle pending IRF ALJ appeals. These negotiations were in partnership with AMRPA and the Federation of American Hospitals (FAH). These discussions are ongoing.
The FAIR Fund prepared an extensive white paper to educate these officials about IRF care and coverage, and the extensive burden caused by technical documentation denials.
The FAIR Fund worked with AMRPA to survey IRFs to compile data about the volume and success rate of Medicare audits and appeals. The resulting statistics confirmed anecdotal evidence that IRFs win approximately 80% of Medicare appeals. The FAIR Fund and other IRF groups pointed to this survey to support their settlement proposals to CMS.
Commented on CMS’s recent Request For Information (RFI) on CMS Flexibilities and Efficiencies in the Inpatient Rehabilitation Facility (IRF) Prospective Payment System Proposed Rule for FY 2018, as well as the Medicare Red Tape Relief Project being advanced by the House Ways and Means Committee. The FAIR Fund requests modifications to the IRF coverage regulations to ease burdens on IRFs and their patients and other, more broad-based reforms to the audit and appeals processes.
Asked HHS Secretary Price to grant regulatory relief to providers by withdrawing the pending Medicare regulation on the 90-day timeframe for ALJ decisions of Medicare claim appeals.
Worked with the Senate Finance Committee on its draft Audit and Appeal Fairness, Integrity, and Reforms in Medicare (AFIRM) Act, which would reform Medicare audit and appeals processes. The FAIR Fund joined AMRPA in submitting detailed written comments to this important legislation and stressed strong opposition to a proposal to allow Recovery Auditors to perform pre-payment review.
Requested that the Office of Medicare Hearings and Appeals revise and improve its ALJ procedures.
Convinced CMS to moderate the Medicare IRF coverage criteria. In June 2009, the FAIR Fund fully engaged with CMS on the proposed revisions to the federal regulations and the Medicare manuals from a legal perspective by offering extensive comments and complementing AMRPA’s advocacy strategy on IRF coverage policy.
The FAIR Fund successfully challenged CMS’s merger of the so-called “60% Rule” IRF classification criteria and the coverage standards, among many of the other changes proposed.
The FAIR Fund strenuously opposed CMS’s efforts to create “rules of thumb” for coverage.
Many of the FAIR Fund’s positions were reflected in CMS’s final regulations and manuals, including maintaining the distinctions between criteria used to classify IRFs and the actual coverage criteria, the removal of formal “rules of thumb,” and exceptions to the various timeframes for documentation and services, including the “Three Hour Rule” for therapy services.
Education and Technical Assistance to FAIR Fund Members
The FAIR Fund continuously monitors legal, regulatory and policy developments in IRF coverage and appeals, analyzes these developments from an IRF perspective, and reports key developments to members.
The FAIR Fund created a comprehensive guide to the 2010 coverage criteria for FAIR Fund members, entitled, Medical Necessity Guide: Minimizing the Impact of Medicare Audits of Inpatient Hospital Rehabilitation Care.
The compendium was designed to serve as a useful, one-stop reference guide for administrators and staff at IRFs when responding to Additional Documentation Requests and challenging Medicare denials at every level of administrative appeal.
This compendium includes a number of checklists and tips, including:
Electronic template appeal letters for FAIR Fund members to customize for their appeals at the redetermination, reconsideration and ALJ levels of appeal. These templates were designed to help IRFs efficiently and effectively appeal large numbers of claim denials and helped build a consistent set of legal arguments across the country.
Slides and transcripts from various CMS presentations on the IRF coverage criteria.
Copies of reference materials, including revised manual sections.
A copy of the final Medicare IRF regulations.
An updated compendium will be available for new and existing FAIR Fund members who join for the 2018 calendar year.