The attorneys at Chilivis Grubman represent a wide variety of healthcare providers and suppliers in connection with Medicare audits and overpayment appeals. Clients often ask us how long a CMS contractor has to reopen a claim for purposes of conducting a post-payment audit. Like most legal questions, the answer is: it depends.
As an initial matter, a “reopening” is “a remedial action taken to change a binding determination or decision that resulted in either an overpayment or underpayment, even though the binding determination or decision may have been correct at the time it was made based on the evidence of record.” Federal regulation permits the following entities/individuals to reopen a claim:
- a CMS contractor to revise the initial determination or redetermination;
- a Qualified Independent Contractor (QIC) to revise the reconsideration;
- an Administrative Law Judge (ALJ) or attorney adjudicator to revise his or her decision; or
- the Medicare Appeals Council to revise the ALJ or attorney adjudicator decision, or its review decision.
42 C.F.R. 405.980.
Federal regulation also governs the length of time CMS contractors have to reopen a claim after initial determination. Specifically, CMS can reopen a claim within one year for “any reason.” After one year, the following standards apply:
- Good Cause: A CMS contractor can open a claim within four years of the initial determination if it has “good cause” to do so. The regulations say that “good cause” is established when there is “new and material evidence” that either (a) “was not available or known at the time of the determination or decision and may result in a different conclusion, or (b) “the evidence that was considered in making the determination or decision clearly shows on its face that an obvious error was made at the time of the determination or decision.” 42 C.F.R. 405.986(a). Importantly, the regulations make clear “a change of legal interpretation or policy by CMS in a regulation, CMS ruling, or CMS general instruction . . . is not a basis for reopening a determination or hearing decision under this section.” (emphasis added).
- “Fraud or Similar Fault”: The regulations also provide that a CMS contractor can reopen a claim at “any time” if there is “reliable evidence” of fraud or “similar fault.” “Reliable evidence” is defined as evidence that is “relevant, credible, and material.” “Similar fault” is defined as “to obtain, retain, convert, seek, or receive Medicare funds to which a person knows or should reasonably be expected to know that he or she or another for whose benefit Medicare funds are obtained, retained, converted, sought, or received is not legally entitled.”
The regulations also state that the decision on whether to reopen a claim “is binding and not subject to appeal.” This statement purports to limit the remedies that a provider or supplier has where they believe a claim that is subject to a post-payment audit was improperly reopened. In those situations, because the regulations expressly state that the issue is “not subject to appeal,” the provider/supplier may have to seek relief in federal court, where appropriate.
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The attorneys at Chilivis Grubman represent healthcare providers and suppliers of all types and sizes in connection with Medicare and other payment audits, overpayment disputes, and overpayment appeals. If you need assistance with such a matter, please contact us.