In August 2011, CMS improperly issued a “Dear Physician” letter requiring physicians rather than prosthetists to make and document K-level determinations on the rehabilitation potential of amputees. Since then, the American Orthotic & Prosthetic Association, working in concert with the other members of the O&P Alliance, including the National Association for the Advancement of Orthotics and Prosthetics, and CMS to try to resolve the problems that have arisen as a result of the Dear Physician letter.

“This is by far the most important issue AOPA is facing right now,” Joe McTernan, director of coding and reimbursement, education and programming at AOPA, told O&P Business News. “This is destroying small businesses and it is taking them out of the marketplace. Some relief and resolution in this is crucial to the survival of O&P for it to continue as an operational business and to continue to provide needed services to Medicare beneficiaries.”

The Dear Physician letter was written in response to a study developed by the Office of Inspector General (OIG) that showed Medicare was spending more money on prostheses from 2004 to 2009 than was necessary, as well as to reports of questionable billing. Through their report, the OIG recommended CMS to implement additional claims processes, strengthen the monitoring of billing, implement requirements of face-to-face physician visits, revise requirements in the local coverage determination, enhance screening for currently enrolled suppliers of lower limb prostheses and take appropriate action on suppliers with questionable billing.

By producing the Dear Physician letter, AOPA claims CMS violated several laws set in place for Medicare beneficiaries, and believe Recovery Audit Contractors (RACs), who are paid a percentage of the amount of overpayments no matter how old the overpayments are, take advantage of practitioners and deny claims for what seems like no reason.

According to McTernan, although there are people who believe AOPA and NAAOP are challenging the authority of CMS, the main argument of the O&P community has always been that Medicare improperly changed the rules and the RACs are unfairly applying those principles to claims made prior to the Dear Physician letter.

“[CMS] essentially said they didn’t change anything, it was just a different interpretation. But the tangible change to orthotists and prosthetists was that they’re no longer able to have any chain in the documenting of medical necessity anymore,” Ryan Ball, director of government relations of the Orthotics and Prosthetics Group of America, told O&P Business News. “So a prosthetist, who is a clinical professional, who had to go to school and is going to require a master’s degree in the near future, essentially has to tell the physician what to put in his notes because if it is not in the physician’s clinical notes, then Medicare does not accept it as medically necessary because they orthotists and prosthetists as ‘suppliers’ with a vested interest in billing prosthetic devices.”

Ryan Ball

Ryan Ball

“The RACs have greatly affected the O&P community most adversely,” Teri P. Kuffel, JD, vice president of Arise Orthotics & Prosthetics, Inc, said. “Audits in general are an important and necessary part of maintaining a proper professional environment, but many of the audits our community has been subjected to have been neither proper nor professional.”

Preparing claims for review

If you are a Medicare provider or supplier, there is little chance to avoid being audited. If a claim is denied, practitioners can wade through the CMS appeals process to try overturning it. However, the appeals process can take several months to up to 1 year or more to navigate, which stifles cash flow for O&P practitioners.

Teri P. Kuffel

Teri P. Kuffel

“The ultimate impact of the audits is not necessarily one of getting paid or not getting paid, but on the O&P practitioners’ cash flow,” McTernan said. “The RAC audits are taking back money that then has to be fought for through the appeal process, which can take a year to 18 months if you’re going to carry your appeal all the way through to the administrative law judge (ALJ) level, and it’s crushing people’s ability to have manageable cash flow.”


There are several things O&P practitioners can do to prepare their business and their claim submissions to decrease the likelihood they will have claims overturned and increase the chance of having claims recouped along with winning an appeal.

One thing O&P practitioners and business owners should do is reserve a portion of their income and revenues to try and pay for some expected audits.

“It is now essential that a small O&P company either obtains a line of credit or increase the line it has. This must be done while there is a record of cash flow, and before things get too tight,” Kuffel noted.

“There’s no telling when an audit will be forthcoming, but when you do get an audit, it is kind of a probe audit to test whether the provider has a high error rate,” Peter W. Thomas, JD, NAAOP General Counsel, told O&P Business News. “If you do get a high error rate, there is a good likelihood you’re going to be audited again shortly.”

Peter W. Thomas

It is also good to have a compliance plan, study the manual provisions and the coverage policies in your DMAC area and to know both the Medicare benefits policy manual, as well as the Medicare guidance, inside and out. Performing internal audits and reviewing claims before they are sent out can help decrease the chances of your claim being denied in an audit.

“Do all you can to make sure your documentation complies to the letter of the law with virtually every requirement,” Thomas said. “Also, develop better relationships with your referring physicians so you are able to make sure they are recording in their documentation accordingly and you have access to those documents so if you are audited you don’t need to go scurrying around trying to find the doctor a year or more after the claim has been referred to you or the prescription has been signed.”

According to McTernan and Kuffel, the best strategy for dealing with RAC audits is for O&P practitioners to protect themselves against future audits and claim denials by knowing and following the rules and regulations established. According to Kuffel, “Research of the Medicare rules and the policy guidelines, usually found in the applicable Local Coverage Determinations, must accompany each appeal or returned audit request. A review of those rules to the facts of the particular claim under scrutiny must be analyzed and discussed in the paperwork returned.”

“It is difficult to limit exposure for claims that occurred in the past when you were operating under what you assumed to be the rules, but with the release of the Dear Physician letter, even though we don’t agree it was done properly, the rules were more clearly established,” McTernan said. “Going forward folks can’t argue they should have been paid because they weren’t informed. The strategy is to educate providers, and even though it is difficult to get the type of information Medicare is asking for in the physician’s record, the point is that’s the reality we face and folks are going to have to continue to work with their referral source to make sure the specific information Medicare is looking for in the medical record exists.”

Audit process

If your claim is denied, going through the claims appeals process may help you recoup your money. There are five levels to the Medicare claims appeals process outlined on the CMS website, which include redetermination by a CMS contractor, reconsideration by a Qualified Independent Contractor, hearings before an ALJ within the Office of Medicare Hearings and Appeals in the Department of Health and Human Services, review by the Appeals Council within the Departmental Appeals Board in the Department of Health and Human Services and judicial review in federal district court. Although some practitioners receive approval of their claim within the first or second levels, a good majority of practitioners have to send the appeal to the ALJ, where, most of the time, it is overturned in favor of the practitioner.


“I think a lot of it has to do with the RACs not understanding what they are reviewing, which makes it very difficult,” Christine Haines, president of Compliance Account Ability & Training Solutions LLC, said.

Coming from a family with roots in the O&P industry, Haines has not only experienced RAC audits first hand, but she has witnessed a handful of businesses closing their doors for good due to the audits. In response, she has begun helping industry members not only with their appeals, but also their documentation by telling them what they need and then reviewing it before it is sent to CMS.

According to Haines, two important ways to survive an audit are to make sure all the required documentation is at hand and to pay attention to signature requirements. Haines recalled incidences where the practitioner did not keep track of attestation forms or signature logs and have been penalized later because of it. If the documentation is not correct or does not have all the information it needs, there is the chance the claims will be sent to the Medicare Zone Program Integrity Contractors (ZPIC) or DME Program Safeguard Contractors to be evaluated for aberrant billing and fraudulent charges, a process that takes longer than the RAC audits. Obtaining the right documentation also ensures coverage for audits that might arise later.

“Everyone needs to make sure they are paying attention to the documentation and getting it on every case because even if you get out of the audit stage, CMS is still doing random audits,” Haines told O&P Business News. “Practitioners need to make sure they have documentation for every patient because the RACs could come back at any time, even 5 years later.”

Of course, in some situations, such as prostheses or socket replacements and patients who switch practitioners, obtaining all documentation is easier said than done. In the instance of a replaced prosthesis or socket, the RACs request documentation from the time the original was prescribed. According to Haines, providing that documentation is tough because the new requirements were not in place when the patient received their original and so the needed documentation may not exist.

“Another big issue is if you happen to take over a case where the patient was seen somewhere else [and switched to your practice],” Haines said. “So far we have not been able to get records from any of those other facilities, whether the patient requests it or not.”

It is also important to wait until you have everything the RACs are asking for before sending in documentation. Haines has seen claims denied because supplement documents were sent several days after the main documents asked for were received.

Besides helping practitioners with assembling and filing their claims, to help the O&P community with the auditing process, Haines and colleagues have been working on educating physicians on what they need to document. Haines is also encouraging patients to set up an appointment with their physician to discuss these documents.

“We’ve been working on putting together packets to send to physicians with specific documents on what they need to document as far as functional level,” Haines said. “Not telling them what to do, because we can’t do that, but giving them the Dear Physician letter, a description of what the different functional levels are and even the LCD if need be.”

Fighting back

On May 10, after many meetings with Health and Human Services (HHS) and CMS, AOPA filed a lawsuit against HHS for violations of Title XVIII of the Social Security Act, the Administrative Procedure Act, the Medicare, Medicaid and SCHIP Benefits Improvement and Protection Act of 2000 and the Regulatory Flexibility Act. Since then they have received a motion from CMS to dismiss the suit, but AOPA is working to prove they have a legitimate case.


“Our industry leaders have responded appropriately on behalf of the O&P community,” Kuffel said. “AOPA filed suit against Medicare and is fighting the battle at the highest level possible. AOPA’s efforts are grand and its numbers are few. Those individuals need the continued support of the entire O&P community.”

While the O&P community waits for a response from CMS on the lawsuit, AOPA and other the O&P Alliance organizations are determined to continue their advocacy on the issue. One way to do this is for members of the O&P community to speak with their members of Congress and explain to them how the audits are affecting the industry.

“I think we need to continue to demonstrate, not only to CMS but to Congress, the RACs have really run amuck,” Thomas said. “We’ll continue working with CMS and try to figure out a way to coexist and to submit clean claims and to provide services to Medicare beneficiaries, but we really are at a difficult spot right now.”— by Casey Murphy

For more information:
Questionable billing by suppliers of lower limb prostheses. Available at: Accessed Aug. 5, 2013.

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