Former CMS official: The audit process 'is not working'

Friday, June 1, 2012

WASHINGTON – HME providers beleaguered by an onslaught of audits may take some comfort knowing that there is awareness among lawmakers that something needs to change.

"There is collective concern on Capitol Hill about the role of auditors and CMS's oversight of them," said Kimberly Brandt, chief investigative counsel for the Senate Finance Committee and a former CMS official. "We have heard loud and clear that this process is not working, it's not working well at all, and we want something to be done."

Brandt was speaking during a webinar last week hosted by The VGM Group and Munsch Hardt Kopf & Hardy. VGM is one of several industry groups collecting recommendations from providers about anti-fraud efforts in response to a request from the Senate Finance Committee in May.

At the top of the list of the recommendations already in, stakeholders say: more oversight of and standards for auditors.

"The overwhelming problem is that they have unfettered discretion to operate as they please given the lack of judicial overview and qualified immunity," said Edward Vishnevetsky, an attorney at Munsch Hardt. "They are, to an extent, above the law."

To be sure, industry stakeholders have weighed in on fraud and abuse efforts in the past.

"We’ve been making recommendations on measures for several years now," said Walt Gorski, vice president of government affairs for AAHomecare, which has a 13-point plan to reduce fraud. "Our goal is to make sure fraudulent criminals are eliminated while simplifying the audit and coverage systems so that HME providers can do what they do best—care for patients."

The Senate Finance Committee plans to spend the summer gathering further feedback from those who submitted comments, including industry stakeholders. A summary document with proposed best practices and ideas is expected this fall, Brandt says.

"Hopefully, when the new Congress convenes (in 2013), we'll have something fully vetted and thought out," she said.


Why is this funny?  Last year I contacted both VGM and AA Homecare to help me in this exact battle I have been fighting single handed in The Federal Courts in Philadelphia for years. see Nichole Medical v. Tri-Centurion.  Do you want to know what help I received from both of them?  ZERO!!!!!!!!!!!!  Now they want to act as if they are "Standard Bearers" in this battle.  Unbelievable!!  This is some of the most "Gutless Actions" I have seen thus far.  When it came to doing battle on the "Front Lines" they both "caved"!!!!  I hope everyone reads this and learns from it. 

There are more so called "industry stakeholders" I contacted that turned me down and I will disclose them in the future as they expose themselves.  You ALL know who you are!!!!

At this time I am under a RAC audit which the original letter was Sept 2011.  During this time I have found a number of problems dealing with this issue.

1.  Unable to speak to anyone concerning this matter or knows what they are talking about.

2.  Their inability to process the reconsideration request in a timely manner.  Being able to take their time the interest accures at over 12% interest.

3.  This "reconsideration" is automatically denied, without just cause.

4.  I had one insider who told me they only scanned a "handful' of records which is documented in their notes she read to me.  I submitted over 100 claims.

5.  I was told by an Osbusman in 2006 who was a representative of Medicare that I could bill for bracing that was prescribed by a Chiropractor as well as customer service every time I called.

6.  They went back on my claims for 5 1/2 years which the policies states 4 years.  Also they are trying to recoup monies that were back from 2010 which can only be done on a one year time limit per Medicare policies.

7.  I am paying over $5,000.00 a month to stop them from withholding my reimbursements, even though I feel I was not in the wrong based on what I have been told my Medicare.

8.  If I have to pay the $252,000.00 back with  interest I will have to close my doors and put 10 employees out of business.  I am a small business, woman owned and in a rural setting.

9.  I am getting rejected claims stating Medicare does not pay for hospital beds etc. 

This has been a living nightmare for me.  The cost and the time involved has taken its toll.  I have had to employ an attorney to help me with this which again is costly.  Having done extensive research there are no policies  been put in place regarding Chiropractors that has an end date.  I am a provider without knowledge and I feel this audit is to help recoup fraud that has occured over the years.  I am a trying my best to do what is right, however with the rules changing on a daily basis this is impossible.  I have never commited fraud and do not intend on doing so, this office is diligent on making all set Medicare rules a priority as it should be.

I would appreciate any help and/or advise I could get in regards to this. 


Thank you for your time.


Brenda Montgomery

CCC Medical Equipment

115 Vicksburg Ave

Camden, TN 38320


First Rule, unfortunately you are in a situation where the rules in place for you to follow are NOT being followed by those entities CMS has contracted to police them.  Until my legal team and me are  successful in receiving a Federal Court Decision that both mandates and holds accountable contracted entitities of CMS  just as accountable for obeying both the Statute and The Secretary's instructions as The Providers, do the best you can to tread water.  Decision Pending in the Third Circuit Court.

see Nichole Medical v Tri-Centurion

Old claims more than a year are typically allowed and reserved for Fraud & Abuse Audits.  That being said they do need substantiating evidence to do an F & A Audit. 

Reconsideration can ONLY review any medical evidence or that the MAC now, formerly intermediary, adjudicated the claim correctly.  Therefore, the longer the reconsideration process takes the longer the delay in beginning the recoupment unless you are absolutely sure you have the valid documentation for reconsideration to reverse the original adjudication.

Why are you paying the $5,000.00/mo?  Any recoupments can only begin after reconsideration is completed.

The Ombudsman is only a referee and is on CMS's payroll!  Enough said.

Unfortunately, Providers have NO magic bullet to stay off these assaults.

Hopefully, this has been somewhat helpfu.  If it has been I can be reached @


I was informed by my lawyer a Medical Equipment Provider from New Jersey contacted him last Friday to with a similar plight as yours.  My lawyer said The Provder was unsure of what to do if he should just close his doors or NOT since such a fight is so expensive of which I know only to well.  My lawyer said The Provider was assessed for a $600,000.00 recoupment.   I am sure more Providers exist with this problem.  Unfortunately, tomorrow wil bring out more of you as the merry-go-round cotinues to turn!

Please, for ALL Providers it is my understanding of the law that if Medicare does attack you with an audit and the results of that audit proves you negligent closing your doors DOES NOT end your grief.  For closely held Company's Medicare can come after you just like IRS for recoupment of money and I don't believe it is forgivable in Bankruptcy Court.  For a larger Company the Principal Officers can be held accountable even after  resigning their position.  If a Company is sold and a subsequent audit is done any claims from the previous owner/owners found negligent both the previous owners and the new owners (for NOT being vigilant) can be held accountable for remedial damages.

Therfore, for ALL Providers that I hear just want to "fold their tents" and throw away the keys I strongly suggest you retain competent legal advice and a release in writing from any damages or assessments from the appropriate government agency.  If they claim you owe them $200,000.00 and you can NOT pay it; closing your doors and terminating the employees does NOT compensate CMS or absolve or eliminate you from the debt. 

Again, this is just my understanding of the law.

Brenda, I agree with every point you make except the RX by chiropractor issue. The supplier manual has made this clear for a long time (can't remember if that goes back to 2006, but it has been in the supplier manual for many years). Chiros dont qualify to order Medicare DME. The lesson learned is that every supplier needs to access the materials that are available and sign up for policy updates so they are alerted when things change. Many suppliers make mistakes because they don't devote the time to keeping up on the rules. For a small business this can be very expensive unless it's assigned the owner, who doesn't get paid overtime. Owning a small independent DME business is not easy.