Lots of health care service providers find themselves in the position of needing to file a Medicare appeal. Despite the systematic nature of modern Medicare billing, wrongful denials remain common, and errors during Medicare audits can leave providers facing substantial and unjustified revenue losses. Filing a successful appeal is the key to avoiding these losses—but, in many cases, this is easier said than done.

Despite the challenges of filing a successful Medicare appeal, however, navigating the appeals process will often be the best (and in some cases only) path forward. Additionally, while the process can be challenging, there are clear steps that providers can take to improve their chances of winning a Medicare appeal. To maximize their chances of success, providers must address wrongful Medicare payment denials proactively and pursue their appeals with both clear and comprehensive documentation and a clear understanding of the specific grounds for their appeals.

“As the volume of Medicare claims continues to grow, Medicare appeals are becoming increasingly common. Auditors frequently make mistakes; and, when providers are unable to resolve these mistakes during the audit process, their next step is to initiate an appeal under CMS’s clearly documented appellate procedures.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

What does it take to win a Medicare appeal in 2024? Here are 10 steps that Medicare-participating providers and their counsel can take to help improve their chances of success:

1. Make Sure You Understand the Reason(s) for the Payment Denial(s) At Issue

One of the first keys to filing a successful Medicare appeal is ensuring that you have a clear understanding of the reason(s) for the denial(s) at issue. The Centers for Medicare and Medicaid Services (CMS) and its audit contractors deny reimbursement requests for numerous reasons, and there are also numerous reasons why a payment denial may be flawed.

Understanding the relevant issue(s) will not only help you make an informed decision about whether pursuing an appeal is warranted but also help you start formulating the arguments that you will present during the appeal process. To succeed, you must clearly identify one or more specific issues that make the denial(s) in question wrongful under the relevant Medicare billing regulations.

2. Determine if You Have Grounds to File an Appeal

As we just mentioned, there are numerous reasons why a payment denial may be flawed. However, payment denials under Medicare are also justified in many circumstances, and preventing (or recouping) invalid payments is one of the government’s most efficient means of combating Medicare fraud—which costs taxpayers in excess of $60 billion per year.

As a result, before devoting time and resources to an appeal, it is first critical to determine whether an appeal is warranted. This requires in-depth knowledge of the relevant Medicare billing regulations and Medicare summary notice, as well as carefully reviewing the relevant billings and associated patient records. With this in mind, some examples of potential grounds to appeal a coverage or payment decision include:

• Improper application of the relevant Medicare billing guidelines
• Application of newly adopted Medicare regulations to historical billings
• Application of outdated Medicare regulations to recent billings
• Improper interpretation of a provider’s patient or billing records, especially under the Medicare Advantage Plan and prescription drug coverage
• Use of improper auditing methodologies or flawed calculations
• Flawed assumptions during the audit process
• Overlooking or ignoring relevant documentation during the audit process

Again, these are just examples. The Medicare billing regulations are inordinately complex, and changes over time make understanding and applying the relevant regulations during an audit even more difficult. When dealing with costly Medicare payment denials, it is critical to carefully assess all potential grounds for filing an appeal to ensure you make informed decisions about your next steps.

3. Preserve All Relevant Documentation

If reviewing the relevant records and Medicare billing regulations suggests that an appeal is warranted, it will be important to preserve all relevant documentation. This includes documentation supporting the Medicare billings at issue and documentation of the flaws in the audit process that led to the unwarranted denial(s).

Documentation is key to success in any Medicare appeal. When a Medicare-participating provider appeals a payment denial, the burden is on the provider to affirmatively demonstrate that payment is warranted. Without clear documentation that a reimbursement request complies with the relevant Medicare billing regulations and/or that a denial results from errors or oversights during an audit, success on appeal is unlikely.

4. Initiate the Medicare Appeal Process Before the Deadline Expires

When faced with wrongful Medicare payment denials, participating providers only have a limited amount of time to file an appeal. As CMS explains, once a provider receives notice of a payment denial, the provider has 120 days from the date of receipt to initiate the audit process.

Initiating the Medicare appeal process involves filing a “request for redetermination” with the appropriate Medicare Administrative Contractor (MAC). As CMS also explains, “[a] redetermination is a review of the claim by Medicare Administrative Contractor (MAC) personnel not involved in the initial claim determination.” Medicare-participating providers seeking review of their payment denials must either file form CMS-20027 or submit a custom-drafted written request that contains all information required in form CMS-20027, including “[a]n explanation of why the appellant disagrees with the contractor’s determination.”

5. Include All Necessary Information in the Request for Redetermination

While filing on time is important, ensuring that a request for redetermination includes all necessary information is equally important. The MAC reviewing the request will base its decision on the information submitted—and, if the information submitted does not clearly establish the grounds for reversal, the relevant payment denial will almost certainly be upheld. As a result, rather than simply meeting the threshold requirements for filing, providers and their counsel should focus on building a clear, comprehensive, and thoroughly documented case for why reversal is the only reasonable outcome.

6. File a Request for Reconsideration By a Qualified Independent Contractor (QIC)

If efforts to reverse a Medicare payment denial through a request for redetermination are unsuccessful, the next step in the process is to file a “request for reconsideration” with the appropriate Qualified Independent Contractor (QIC). As CMS explains, “[an] appellant . . . has 180 days from the date of receipt of the redetermination decision to file a reconsideration request. . . . The redetermination decision is presumed to be received 5 days after the date on the notice unless there is evidence to the contrary. . . . A reconsideration must be requested in writing. Instructions for filing a reconsideration request are on the [Medicare Redetermination Notice], and can also be found on the website of the [MAC] that issued the redetermination.”

Filing a request for reconsideration involves submitting either form CMS-20033 or a custom-drafted written request that contains all required information. Here, too, comprehensiveness is key, and providers and their counsel should seek to ensure that the QIC reviewing a request for reconsideration has access to all relevant documentation.

7. Seek a Decision from the Office of Medicare Hearings and Appeals (OMHA)

If a QIC upholds a payment denial and the provider still disagrees with the determination of medicare coverage, the provider now has the opportunity to have the relevant claim(s) reviewed by CMS’s Office of Medicare Hearings and Appeals (OMHA). This first review falls outside of CMS’s fee-for-service auditing regime.

The OMHA is staffed by administrative law judges (ALJs) and attorney adjudicators tasked with reviewing providers’ Medicare appeals anew. However, it is still up to providers and their counsel to affirmatively demonstrate that payment is warranted. When seeking review at the OMHA, providers can request a hearing before an ALJ or have their appeal decided on the record by an attorney adjudicator. While both options have benefits, it will often make sense for providers, like skilled nursing facility care, to rely on their counsel to present their arguments for payment at this stage orally.

8. Timely Request for a Review By the Medicare Appeals Council

After going to the OMHA, the next step for providers that need to appeal denied reimbursement requests is to file a request for review with the Medicare Appeals Council at the U.S. Department of Health and Human Services (HHS). This is an option in two scenarios—providers can go to the Medicare Appeals Council if either: (i) they disagree with the OMHA’s decision; or, (ii) the OMHA does not render a decision in a timely manner.

9. Challenge the Payment Denial(s) in Federal District Court if Necessary

Finally, if all else fails, providers can challenge their Medicare payment denials in federal district court. This is a judicial process that requires experienced legal counsel who is intimately familiar with all relevant substantive and procedural considerations. While going to court to challenge Medicare payment denials is relatively rare, it will prove necessary in some circumstances.

10. Focus on Documentation Throughout the Process

As a final tip, providers and counsel seeking to challenge Medicare payment denials should focus on documentation throughout the process. What happens during each stage of the review process is relevant to the next, and having all relevant documentation readily available will help to improve a provider’s chances of securing a swift and favorable outcome.