Q&A: Atty Matthew Fischer on appeals

Perfect storm of incentives, recoupments
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Monday, October 28, 2019

MIAMI – Matthew Fischer, a former senior attorney adviser for the Office Medicare Hearings and Appeals, has seen the ugliness of the appeals backlog from the inside. Here’s what Fischer, now an attorney with the Zumpano Patricios, had to say about how to work a flawed system.

HME News: What did the appeals system look like from the inside?

Matthew Fischer: When I got there in 2011, I’d be looking at cases from two or three years ago. I thought, what is going on? They just didn’t have the resources to handle everything that was coming through.

HME: Why was there so much coming through?

Fischer: You’ll notice a lot of the contractors out there working on a contingency basis. So any little thing that they can make a claim against somebody for, they can make an overpayment demand for. Their mission is to look for fraud, which is valid, but some of it is without merit and that’s clogging up the system.

HME: Why did they set up the contracts this way?

Fischer: It’s tough. In the government, you see all these contracts and you wonder, we spent millions of dollars on this antiquated system? For this, they thought, let’s create a new environment; let’s incentivize them. But the contractors are going crazy and the backlog is crushing.

HME: There are efforts to improve the process, particularly at the administrative law judge level, right?

Fischer: Yes, they’re hiring more people and they’ve opened several new settlement programs and, from what I’m hearing, that seems to be helping.

HME: So there’s a possibly flawed contracting system feeding into the appeals system. But is the actual appeals system also flawed?

Fischer: What a lot people don’t realize about recoupment is— the first two levels, they’re not coming after you yet. They hit you at the third level. A lot of people can’t afford to pay back the overpayment. CMS says, fine, here’s a payment plan, and if you win your appeal, we’ll pay you back later. But people can’t meet those terms. That’s set up wrong.

HME: What are your HME clients asking for help with? 

Fischer: A lot of them want me to help them get their ducks in a row. If they’ve already appealed, I counsel them on steps: here’s the type of documentation you need; here are our best arguments; here’s stuff to prevent this in the future.

HME: Are there any tricks you can offer to work a system with so many flaws?

Fischer: When I was on the inside, any time (a provider explained) an issue to a local congressman or senator and they wrote a letter to HHS in D.C., it was pushed to the front. If you’re stalled in the appeals process, get your lawmaker or their staff to write a letter.