CLNC® Success Stories

How I Consult on Medicare Appeals as a Certified Legal Nurse Consultant*

by Camille Joyner, RN, BSN, CCM, CLNC, CEO

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As a Certified Legal Nurse Consultant I consult and assist acute general inpatient rehabilitation facilities (IRFs) with Medicare Part A appeals. It is somewhat different from working on medical malpractice or personal injury cases. Although I do work with the corporate facility attorneys, once a Medicare case escalates it goes to the level of an administrative law judge (ALJ) hearing.

Prior to the ALJ hearing request level, there are two lower levels of appeals. On Mondays I check my appeals spreadsheet to see the status of all of the case appeals. I use an Excel spreadsheet for each facility to track what the facility does, what I have done and need to do and what CMS (Medicare) does.

Handling Medicare cases is certainly different than working with medical malpractice and personal injury cases. Regardless, the skills and techniques learned as a Certified Legal Nurse Consultant remain applicable across the board.

That tells me what’s on time and what isn’t and also who to contact if necessary. I update the spreadsheets with every change, sometimes several times a day. Any appeal deadline missed by a provider without a solid excuse, and with proof, terminates all appeals for that case. The provider will never be paid for that stay and, if the provider accepts Medicare assignment, also may not bill the patient for the loss.

On most Monday mornings I attend a 30-minute live webinar that addresses new CMS (Medicare) developments. I use this information to educate my clients regarding documentation standards. Mondays are also when I check with the attorney for the finalized status of any ALJ hearing request draft that is due soon. My job as the CLNC consultant is to draft an accurate and comprehensive ALJ request. I also add any pertinent information that appears in the medical record and will support the IRF’s position. Unlike civil attorneys engaged in medical malpractice cases, these attorneys don’t receive the entire medical record for initial review. They expect the IRF to do that, which is why it is handy for the IRF to have a Certified Legal Nurse Consultant.

These corporate attorneys are given copies of the chart sections which they request and need in order to accomplish their job. It is up to the IRF or the CLNC consultant to locate any additional pertinent information and to bring it to the attorney’s attention. These attorneys are almost never doctors or nurses, so they are always very appreciative of any medical information that may be applicable to their understanding of the case.

By following the Core Curriculum for Legal Nurse Consulting® textbook that I received in Vickie Milazzo Institute’s CLNC Certification Program, I was able to create a facts and observation form that highlights the details of the given Medicare case, including a list of strengths and weaknesses and also my professional opinion of the case’s likelihood of winning a favorable hearing decision. I support the positive aspects of the case with pertinent medical research. Conversely, if I believe that a case is too weak to withstand appeal, I compile a list of the deficiencies as shown in the record and cite any violations of CMS rules, such as the doctor signing a document too late for CMS timeliness compliance. Additionally I discuss my opinion with the facility administrator and the finance comptroller for their final decision regarding pursuing or terminating appeals.

The appeals request documentation can be up to 9 pages long, depending on the length of the denial issued by the CMS contracted reviewer. Although some Medicare attorneys publicly advise brevity in the appeals documentation process, I respectfully disagree. I have observed that if a CMS contracted reviewer misses a medical condition or misstates the severity of a given medical issue, those same errors will almost certainly be carried right along by reviewers at the next level of appeal. By politely and factually challenging every erroneous statement, misapplication of CMS regulations or missed medical condition in a given denial decision, and explaining the medical significance to that patient, an effective rebuttal is achieved.

This response must include any solid medical research and further evidence supporting the provider’s position, including direct quotes of CMS regulations. If the reviewer at the next level of appeal still misses this, then at the ALJ hearing level, the ALJ or the paralegal will be certain to see it. The ALJ team receives a copy of the entire record from the previous CMS contracted reviewer, and it includes all denials and appeals. To be certain we send a duplicate disk marked with the patient name and the statement, “No New Evidence,” with our hearing request to the ALJ.

Further, I include a hard copy table of contents for every document that was actually sent to the previous reviewer ensuring the ALJ gets all of the record, and not just selected parts of the full record that might have, by themselves, supported the last denial decision. It levels the playing field. It is also how some favorable ALJ decisions are reached by record review alone without a hearing. Rehabilitation providers love this and overworked judges do too.

And so, from the very first appeal, my job as a Certified Legal Nurse Consultant is to make the facts of the case easier for the contracted reviewer to see – the better to approve the claim. If that fails, and we appeal that decision point-for-point, the second level contracted reviewers or QIC may approve it. If not, and the case moves forward to a request for an ALJ hearing, all that earlier effort will still be noticed when the ALJ team prepares for hearing. New evidence is not permitted at the ALJ level without a compelling reason. So all the hard work, research and rebuttal done at the two previous levels of appeal can still count (and be read by the ALJ team) as a part of previous appeal submissions for that case. For appeals prior to the ALJ hearing request, the research and application including footnotes usually takes two or more hours per appeal at each level.

Handling Medicare cases is certainly different than working with medical malpractice and personal injury cases. Regardless, the skills and techniques learned as a Certified Legal Nurse Consultant remain applicable across the board.

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