I’d like to start the removal process of this fraud banner tattooed across long-term care’s behind!

Yes, I am saying this out loud. After all, you would think LTC has become synonymous with fraud.

What is sad is that in spite of Herculean efforts by the American Health Care Association and National Association for the Support of Long Term Care, in general LTC still has much of a fight before them to address this label while CMS and Legislators actively and inadvertently reinforce it.

In a recent article in McKnight’s, Tim Mullaney summarized a new bill in the House of Representatives aimed at creating “trusted providers.” The article says:

“In its quest to fight Medicare fraud and abuse, the government should not punish above-board providers, according to Rep. Roger W. Williams (R-TX). He introduced the “Medicare Established Provider Act” to cut down on a reimbursement backlog by identifying providers that are at low risk for fraud. ‘In order to maintain Established Provider System status, providers of services and suppliers must hold a success rate of 75% for all claims,’ Williams wrote in a letter to House colleagues that was emailed to McKnight’s this week.”

The definition of trust is “reliance on the integrity, strength, ability, surety, etc., of a person or thing; confidence.” I’m first struck by the assumption that CMS or MAC or RAC is capable of identifying integrity, strength, ability or surety considering their own lack of “trusted qualities” in recent policy rollouts such as the Manual Medical Review $3,700 outpatient therapy threshold.

As outlined in the “Medicare Established Provider Act” a facility will be labeled “trusted provider” by achieving a certain percentage of success rate after claims are reviewed. To establish this “success rate” I assume claim volume will remain high until this determination is made. In my assessment, basing the success rate on initial claim review will wield few “trusted providers,” as approval rates under MMR have been less than stellar. And it’s not for the reason you would think.

As the GAO pointed out in its mandated report on MMR Implementation in July of 2013, CMS contractors failed in the implementation of MMR. This failure outlined to Congress occurred without consequences to the contractor but with many detrimental effects to the provider and ultimately the beneficiary. This failure resulted in gross mishandling of claims and resultant technical denials or unsupported “no medical necessity” denials.

Determining success rate can only be done legitimately by considering the results of claims at all levels. In a room full of rehab providers and LTC providers, it will not take you long to learn that they all can show data that supports an overall success rate in the 90th percentile when considering all levels of appeal. With this knowledge, how can one trust the initial reviewer under the “Medicare Established Provider ACT” to actually render favorable decisions at any rate over 75% to then “establish” a provider as a “trusted provider”? And how can a success rate under 75% with success stats at all levels being so high actually equate a provider a fraud risk? Lastly, there is no evidence that CMS contractors could handle this type of data extraction and tracking.

Even though this legislation ostensibly is supposed to help providers, the “Medicare Established Provider Act” may encourage facilities to react or continue to act ultra-conservatively in the therapy provisions to Medicare beneficiaries. One might speculate that many providers, as a result of severe cash flow and administrative burden issues and the relentless volume of audits, have been forced to gravitate to extremely conservative therapy provisions. These facilities will certainly have success rates that demonstrate the desired attributes of “trusted provider.” This of course invites another topic of discussion.

Additionally, there are other providers who continue to do what has always been everything necessary on behalf of the beneficiary, which puts themselves at risk for high claim volumes under review and negative cash flow. These are providers committed and financially stable enough to continue appealing denied claims all the way to the ALJ. But in truth, as demonstrated by MMR review results, they will never reach the 75% success rate this bill proposes to be labeled a “trusted provider.” Let’s also remember that ALJ decisions can  — and will  — take 28 plus months due to the overwhelming number of claims waiting for their consideration.

So these stats collectively beg to say that using success rates on initial review, or waiting two years for rates, is not an effective or efficient way to determine “trusted provider” status.

The conclusion suggested under this proposed bill that those providers who have less than 75% success rate should be considered high fraud risks is an inaccurate summation. I propose that CMS and LTC can develop a fair and accurate method to identify those providers who should be considered a risk.

I’ll be the first person to say thank-you and give appreciation to legislators that are willing to step out and support long-term care and Medicare beneficiaries. What LTC must do is shape and influence these efforts to help remove the “fraud banner tattoo” and associate LTC with terms like “legitimate,” “consistent,” “quality,” maybe even “efficient.” We need bills proposed that uses language that supports the appropriate allocation of therapy services to Medicare beneficiaries; that suggest claims be reviewed by qualified individuals in a timely manner; and that suggest a reasonable volume of claims selected for review using agreed upon “red flags.”

At the end of the day LTC providers need to demand legislation that avoids terminology that associates us with fraud and adds ink to the tattoo! I challenge providers to first determine if you are active or inactive.

Tara Roberts, PT, is the corporate director of rehabilitation and wound care services at Nexion Health Management, Inc.