Improved probe and education program targets specific providers within a particular service

Targeted Probe and Education (TPE) is an improved medical review strategy that will focus on specific providers/suppliers within the service rather than all providers and suppliers billing a particular service, according to a CMS news release. The TPE program began as a pilot in one Medicare Administrative Contractor (MAC) jurisdiction in June 2016 and was expanded in July 2017 to three additional MAC jurisdictions. Based on the success of the pilot programs, CMS plans to expand the TPE program to all MAC jurisdictions in 2017.

Probe and Educate program

The updated medical review strategy arose from an initial medical review strategy known as Probe and Educate, which combined the review of a sample of claims with education to help reduce errors in the claims submission process, but moves from a broader review to a more targeted one. TPE claim selection differs from previous probe and education programs because the TPE claims selection is provider/supplier specific from the outset rather than a review of all providers for a specific service; thus, eliminating providers who are submitting claims that are compliant with Medicare policy from the review process.

Under the Probe and Educate program, MACs focused on review of inpatient hospital admissions related to the two midnight rule and home health eligibility requirements. MACs reviewed selected claims submitted by acute care inpatient hospital facilities, long term care hospitals, and inpatient psychiatric facilities for admissions that occur between October 1, 2013 and March 31, 2014 (see CMS issues additional guidance for “two midnight” rule for inpatient hospital admissions, Health Law Daily, November 5, 2013). MACs continued to conduct “probe and educate” reviews for inpatient stays shorter than two midnights. Under the probe and educate process outlined in an earlier CMS release, MACs reviewed claims to determine if the inpatient stay of less than two midnights was reasonable and necessary (see CMS extends RAC prohibition of reviews of stays longer than 2 midnights, Health Law Daily, February 3, 2014).

The first round of the Probe & Educate program, MACs reviewed home health agency claims to assess compliance with and to promote provider understanding of Medicare home health eligibility requirements, (see HHA claims will be reviewed to confirm understanding of eligibility requirements, Health Law Daily, November 10, 2015). In round two of the program, MACs began a one-year period of claim reviews and provider education and will start submitting additional documentation requests (ADRs) on or after December 15, 2016 (see ‘Probe and Educate’ program for home health eligibility continues, Health Law Daily, December 20, 2016).

TPE process

Based on data analysis, Medicare Administrative Contractors (MACs) will review claims (1) for items and services that pose the greatest financial risk to the Medicare Trust Fund or have a high national error rate and (2) of providers/suppliers that have the highest claim error rates or billing practices that vary significantly from their peers. Under the TPE, MACs will review the 20 to 40 claims per provider/supplier, per item or service, and per round, for a total of three rounds of review. After each round of review, the MAC will offer the provider individualized, one-on-one education to address errors within the provider’s/supplier’s claims based on the results of the review.

Removal from the review process

Providers/supplier may be removed from the review process after any of the three rounds of probe review, if they demonstrate low error rates or sufficient improvement in error rates. However, providers/suppliers with moderate and high error rates in the first round of reviews will continue on to a second round of reviews, followed by additional provider specific education and those providers/suppliers that continue to have high error rates in the second round of review and education will continue to the third round. Providers/suppliers that continue to have high error rates after three rounds of TJPE may be referred to CMS for additional action.

AHA’s motion calls for end of appeals backlog litigation

The American Hospital Association filed on October 14, 2016, a motion for summary judgment formally requesting mandamus relief instructing the Secretary of HHS to comply with mandatory statutory deadlines and clear the backlog of pending Medicare claims appeals. In the motion, the AHA agrees that the backlog cannot be cured overnight, but that “the Secretary has treated difficulty as an excuse for inaction.”

Motion for summary judgment

The AHA requests that that court order the Secretary to implement three sets of solutions for the backlog: (1) offer reasonable settlements to broad groups of Medicare providers and suppliers; (2) delay repayment of at least some subset of disputed Medicare claims and toll the accrual of interest on those claims for waiting times beyond the statutory maximums; and (3) impose financial penalties on recovery audit contractors (RACs) for poor outcomes at the administrative law judge (ALJ) level. The AHA claims that the Secretary has the authority to implement each reform to target the existing backlog of appeals and reduce the number of future appeals. The motion also gives the option for the Secretary to offer and implement proposals of her own that would have at least a significant effect on reducing the backlog and minimizing its impact in the interim.

Procedural history

The AHA, Baxter Regional Medical Center, Covenant Health, and Rutland Regional Medical Center (Medicare providers) asked the court to issue a writ of mandamus to compel HHS to process their long-pending Medicare claim-reimbursement appeals in accordance with statutory timelines. In December 2014, the D.C. district court declined to intervene to resolve the backlog of Medicare reimbursement appeals, stating that “the waiting game must go on.” Although the court agreed that HHS had violated its statutory obligations and reasoned that Recovery Audit Contractors (RAC) audits may have been worsening the problem, the court determined that it was not in a position to address the massive and growing administrative backlog because the problem required cooperation between Congress and HHS.

In February 2016, however, the D.C Court of Appeals revived the case and sent it back to the district court because the backlog of delays had gotten worse. At that time, the Court of Appeals instructed the district court that “in all likelihood,” it should order HHS to comply with the appeals deadlines if HHS or Congress failed to make meaningful progress toward solving the problem within a reasonable period of time. The court pointed to the close of the next appropriations cycle (September 30, 2016) as the deadline for resolution. In response, the Secretary asked the district court to stay the proceedings until September 30, 2017, to allow HHS to move forward on various efforts designed to tackle the backlog of reimbursement appeals. The D.C. district court denied HHS’ request to delay further proceedings in the case, holding that the Secretary’s proposals to reduce the claims review backlog and comply with statutory review deadlines would not result in meaningful progress.