In July 2021, our client, a multi-location Florida ophthalmology practice, received notice from Centers for Medicare & Medicaid Services (“CMS”) that claims for various Transcranial Doppler Studies (“TCD”) pertaining to brain blood flow were denied. The practice retained our Healthcare Compliance team to assist with a Request for Redetermination.
The redetermination, which was performed by CMS contractor First Coast Service Options, Inc. (“FCSO”), found that our client was liable for an overpayment of more than $444,000.00.
The practice entrusted Juan C. Santos, LL.M. to move forward with requesting Level 2 Reconsideration be performed by a Qualified Independent Contractor (“QIC”).
Argument (Level 2 Reconsideration Request):
Juan Santos doesn’t beat around the bush as he begins the Level 2 Reconsideration. He states, “CMS has provided zero evidence to prove that TCD testing is not payable per Medicare guidelines.”
Next, he draws attention to a Medicare appeal decision that is remarkably similar to our client’s situation. Honorable Administrative Law Judge Philip Senturia was the one who made the decision. He ruled that the medical practice had correctly billed Medicare for TCD services, effectively cancelling the overpayment claim of more than $100,000 by the Unified Program Integrity Contractor (“UPIC”).
As he navigates the realm of services provided to Medicare beneficiaries, Juan Santos makes a pivotal point. While such services are only reimbursed if they are deemed medically necessary, he asserts that the definition of ‘medical necessity‘ is absent from any statue or regulation of Medicare.
This leads him to an important conclusion — the determination of ‘medical necessity’ largely rests on the treating physician’s judgment. Therefore, providers are well within their rights to submit claims for services they deem crucial for their patient’s treatment.
When it comes to entities like our client, who seek reimbursement for diagnostic tests, Attorney Santos brings up 42 C.F.R. § 410.32(d)(2). This regulation stipulates that the entity must maintain records that accurately represent the medical necessity. According to the guidelines set by FCSO itself, Santos makes it clear that our client is fully justified in filing claims for TCD testing, as long as they can produce the patients’ medical records.
Santos wraps up the request by pointing out a crucial detail. Our client’s Equipment Lease and Service Agreement is identical to the one used by the practice mentioned in the Medicare appeal. This agreement allows our client to use mobile ultrasound imaging equipment and provides trained staff to conduct TCD tests. Citing full compliance with the Federal Anti-Kickback Statute Management Contracts Safe Harbor in 42 C.F.R. § 1001.952(d), Santos builds a strong defense for our client’s practice
The QIC found the appeal to be favorable to any and all claims denied by CMS for our client, meaning that Medicare is responsible to cover the claims for TCD services. It found that no overpayment existed, as the service(s) issued were approved, based on Medicare guidelines.
Areas of Law:
Medicare Provider Appeals
Medicare MAC Audits & Appeals
Anti-Kickback Statute – Florida
Juan C. Santos, LL.M.
This information is a sample of our past results. Prospective clients may not obtain the same or similar results. Every case is different and each case must be evaluated and handled on its own merits. The circumstances of your case may differ from the results provided. The information provided has not been reviewed or approved by the State Bar.