Getting to the YES or Favorable Decision at ALJ

By RehabCare

One of your IRF claims was denied and appealed to the QIC/Maximus with medical record citations and written arguments, yet the decision was still Unfavorable. In fact, the reviewer stated: “The Beneficiary’s impairment, etiology, diagnosis, and comorbidities listed did not require the 24 hour availability, daily monitoring, and frequent management by a physician with specialized training in rehabilitation.”

You read this statement and thought: “Really? But he did!” If you can answer, “Yes, he did” then consider appealing to the ALJ (Administrative Law Judge) level. Why? Because the ALJ is the one level of appeal based not just on the written words of the medical record but also on the oral testimony of the medical professionals, who treated the Beneficiary. Neither the reviewers nor the ALJ can “read between the lines” of our documentation. However, the ALJ level offers the opportunity for the medical professionals to explain to the “trier of fact and decision maker” the unique and complex decision making that occurred at the time of the Beneficiary’s admission.

The medical record “laundry list” of diagnoses, medications, and perhaps an EMR checklist style for the review of systems simply marked, “Stable” may well have different implications to a trained physician or to a reviewer. Thus, at oral arguments, the ALJ may ask specific questions about the care provided or why this Beneficiary needed an IRF and not a SNF level of care. While on the record, take the opportunity to advocate, educate, and justify the Beneficiary’s admission:

  • Explain what the “laundry list” of comorbidities and medications in the Beneficiary’s medical record meant to the medical professionals who admitted, treated, and managed the care.
  • Explain that “stable” meant the Beneficiary was not in a medical crisis and could tolerate increased stress and activity on their physical system, or the change in medication was helpful and not harmful.
  • Explain what complications and barriers to discharge to a lesser level setting were taken into consideration upon review of this Beneficiary’s history and Pre Admission Screen, including social obstacles, such as the Beneficiary was the caregiver for an elderly spouse or the guardian for grandchildren, needed intense rehab in order to return to the home environment quickly due to outside obligations, or lived alone.
  • Explain, if appropriate, why no local SNF was able to accommodate this Beneficiary’s immediate medical needs, i.e., he needed specialized bariatric equipment, respiratory therapy services 24/7, further diagnostic re-assessments, required expensive IV medications, or needed more physician oversight that typically occurs with SNF level care.

The ALJs may at their discretion ask for their own expert witness to testify as well as to the standard of care for IRF type Beneficiaries. That “expert” may testify as to what is customary in a particular setting or within a theoretical community. Thus, take the opportunity to fully explain your program in your community—you know it best. For example, the standard of care often varies from region to region with regard to availability of resources in a SNF, transportation barriers for outpatient services especially in the winter months, and the limits to your own local community social service resources. By educating the “expert” as well as the Judge you will advance their understanding for future ALJ hearings of the issues that are unique to your community.

“Opposing” reviewers from the MAC, RAC, or Maximus are also invited to attend the ALJ hearing and a representative or two or three may choose to do so at your hearing. Take this opportunity to advocate and educate about your program. These representatives will, of course, advocate from their agency perspective that the documentation did not support the admission and care and a lesser level of care would have been appropriate, often based on the admitting diagnosis. Take the opportunity to review all of the above implications, risks, availability of services in the community, and to explain what influenced the medical professional, who personally met and cared for the Beneficiary, and knew of the family/caregivers’ goals and barriers. Above all, explain the quest to improve that Beneficiary’s quality of life, both medically and functionally, post this injury or illness, while under that professional’s care in the IRF setting.

Regardless of whether you are simply speaking directly to the ALJ Officer, comparing standard of care in your community with that of the “expert” witness, or refuting an agency reviewer’s decision, be prepared and thorough in your advocacy. By fully describing the Beneficiary’s medical condition, the inherent risks, barriers and implications of other care options, and by advocating for specialized intense rehab because it was best for this Beneficiary, you too can get to a YES/Favorable decision at the ALJ level.

By Emily Morgan, Appeal Specialist for RehabCare.