08/01/2024    Paul Kesselman, DPM

CMS/Noridian Chart Review (Name Withheld)

There seems to be a bit of naivety within this
question and thus it is best to assume the provider
asking this question is relatively new in practice.
The following is not to unduly alarm anyone.
Instead it will hopefully be an attempt to provide
a clear understanding of the differences between
risk adjustment and post payment audits.

Ciox and other risk adjustment audits are audits on
whether or not the carrier, typically a Medicare
Part C plan, can mine enough
data from the providers chart. This data is used
to determine if the carrier can attempt to recoup
more money from CMS. In plain English, the carrier
is attempting to use your data to make more money
from the government. The carrier is not auditing
your claims to see if they should take money back
from you. On these audits, you can and should
charge for the data. Presently, to my knowledge, no
provider has been booted from a plan for not
providing this data.

This is a far cry from what you are experiencing
with Noridian. As either your local MAC or the DME
MAC (A/D), or CERT contractor, Noridian is asking
to review your charts, to see if they paid you
correctly. That is they are looking at your chart
and your claims to determine if you owe them money
back! To gauge how serious this issue is, one also
needs to know how many charts are being requested
for review. One or two charts are likely to result,
at worst, in much more than either having you pay
them back, or the carrier offsetting future
payments until the amount is resolved.

However, once we start talking about 5+ or more
charts, in particular if they are looking at the
same code(s), one may be facing such problems as
extrapolation. This is where the carrier estimates
how many other times you billed the same code (or
set of codes). They then rationalize that if you
failed a specific percentage of a small set, then
you failed on the same percentage of a larger
universe of claims with the same codes This can
quickly go from a few hundred or thousand dollars
to hundreds of thousands or even 7 figures.

Worse is that if they determine these claims were
fraudulent and not simply not crossing T's or
dotting "I's", then you can be slapped with False
Claims Act. And other actors such as the OIG, UPIC,
FBI can come knocking at your door. Personally. I
have been involved as the expert on some 6 and 7
figure audits and those who have sought expert
assistance from the start almost always do better
than those who do not.

So now, what should you do, one can gauge the
seriousness of this audit by the number of charts
being asked for. Contact your Administrative
Defense Carrier (ADC), usually your professional
liability carrier (malpractice insurance). There
are deadlines you must meet for reporting such
actions and failure to do so can result in you
being liable for any legal costs. ADC coverage
varies by the carrier and this is why it is so
important to ask what is covered and what is not.
Universally, unlike professional liability, you pay
the damages (recoupment amount) to the carrier.

The amount of coverage for legal assistance and
expert witness costs vary by the carrier and
policy. Some offer limited legal assistance ($5K,
others $100K). Some offer no financial assistance
with expert witness costs, while others bundle the
expert witness costs into the legal assistance.
Therefore, it is very important to ask about your
coverage parameters when you renew and shop for
insurance. Some states and state medical
associations offer stand alone policies which
supplement your other ADC policies.

To conclude, do not ignore this audit. To do so
will create a whole lot of hurt and can potentially
ruin your finances.

At a minimum, you may be asked to pay back some
small amount of money. But there are also the
possibilities with far more devastating
consequences, both civil and criminal.


Most of the providers who are prosecuted by the
agencies mentioned are criminals and deserve the
consequences they face. There are however naive and
relatively "innocent" providers who think simply
paying back the money will allow them to continue
unscathed. That is definitely not true!

There have been stories here in PM News over the
years of DPMs who have gone to prison. And the
daily OIG report is replete with such stories.

Immediately obtain legal assistance from a
healthcare attorney and hire a competent expert
witness! Even if you have to pay out-of-pocket.

Paul Kesselman, DPM, Oceanside, NY

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