Bamboozled: Tangled up in red tape

BB brandingJump with us into a maze of government regulations.

Non-citizens can receive Social Security and Medicare if they meet certain qualifications.

They must have status as “Lawfully Admitted for Permanent Residence,” have sufficient work credits and must have lived in the United States continuously for five years.

Those with end-stage renal failure can qualify for Medicare without meeting the same requirements.

Such was the case for Reema, a woman from India who asked that we not use her last name. Reema, 39, has legally been in the United States since 1997. She was granted Medicare benefits in 2006 because of end-stage renal failure, and she had a kidney transplant in 2008.

Her status has unrolled a big ball of red tape, served with a side of bureaucracy, for Reema’s health care providers. Essentially, one government office can’t seem to communicate with another, or even follow its own rules.

8513Hand and Upper Extremity Rehabilitation Associates, a small occupational-therapy business in North Brunswick owned by Susan Frank and Eve Zucker-Strauss, is one of those providers.

Reema had therapy visits there from May 2009 through January 2010, related to complications from the renal failure.

“When the patient came to our office, her Medicare benefits were verified,” Frank said. “Medicare was then billed weekly for the dates of service that the patient was treated.”

Medicare initially paid the bills, but in December 2012, it said the $5,288,13 paid for Reema’s care was in error. It said it had to be paid back to Medicare because the patient wasn’t eligible for benefits because of her immigration status.

The company appealed, saying they had checked Reema’s Medicare card, as specified in the CMS Medicare Basics handbook.

Medicare wasn’t having it. It took back $5,288.13 from the money the practice was supposed to receive for its treatment of other patients.

“Deposits were simply not being made into our checking account for these services,” Frank said.

While the funds were recaptured by Medicare, the office appealed again.

“We indicated that it is Medicare’s responsibility to verify immigration status prior to issuing a benefit card and that providers should not be responsible for checking every patient’s naturalization status,” Frank said.

The practice also argued that, per Medicare rules, the agency has a three-year lookback period — the time during which it can recapture payments — and many of the service dates were past the three-year mark.

Frank said Medicare didn’t respond to the appeals in a timely fashion and, in all, only two of their five appeals received a response — denials.

The office turned to the patient to verify her immigration status.

Indeed, per Social Security Administration records reviewed by Bamboozled, Reema did have Medicare coverage. Several letters from Social Security say Reema had a Social Security card since 1997 and she was eligible for Medicare benefits during the treatment time.

The practice shared the proof with Medicare. That didn’t resolve things. So they asked Social Security to talk to Medicare to clear things up, but the rep said he didn’t know how to reconcile the differences with Medicare.

It got worse.

Even though Medicare by now had taken the full amount it said it was owed, Medicare apparently never notified the Treasury Department. So next, Treasury got into the act, sending a letter saying it would collect the entire amount, plus 10.73 percent interest.

Try getting that at your local bank.

Treasury told the practice, Frank said, that it would continue to collect until Medicare said the debt was been satisfied.

How’s that for inter-agency communication?

Treasury has collected an additional $607.09 to satisfy this “debt” — so far.

The office has temporarily delayed submitting new bills for Medicare patients because it doesn’t want Treasury to hold back those funds.

“We just feel like we’re talking to a black hole,” Frank said, and she asked Bamboozled for help.


Medicare said it had no appeals on file, yet we had some 50 pages of documentation in front of us, so we shared the papers with the agency.

Spokesman Jeff Hall said because the patient “was not a legal resident of the U.S. in 2009, the claims were accurately denied. The basis of the denial is Section 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which prohibits aliens who are not ‘qualified aliens’ from receiving federal public benefits including Medicare.”

Then Hall made a strong pronouncement that simply didn’t match the evidence in our hands.

“Doesn’t look like (the patient) was Bamboozled by Medicare at all,” he said.

Maybe the patient wasn’t Bamboozled, but the practitioners who gave service based on a Medicare card certainly were.

While Medicare reviewed the documents we sent, we asked Hall to notify Treasury to stop its collections and return the $607.09, given that the amounts in dispute were already collected by Medicare.

“We do it automatically,” he said.

Well, it hasn’t happened yet, so we asked again for Medicare to make sure Treasury had the proper information.

We’re not arguing the patient’s immigration status. Even if she was wrongly given Medicare benefits — which is not clear — other issues support the practice’s argument.

It’s in the timing and in the intention.

Even if the patient’s Medicare eligibility was a mistake, many of the funds were past the statute of limitations for Medicare to recoup them.

Section 7100.1 of the Medicare Carriers Manual says Medicare should not: “…recover an overpayment discovered later than 3 full calendar years after the year of payment…”
Immigration experts said even if the patient was ineligible, the provider was not at fault.

“If it was an innocent interaction with the patient, Medicare will have a hard time taking that money,” said Jeffrey Cohen, a Florida attorney who has written on the topic. “At Medicare, there’s a communication gap on a good day.”

Cohen said in this case, for the government, “The left hand doesn’t know what the right hand is doing.”

Sally Pillay, program director for IRATE & First Friends, a nonprofit immigrant advocacy group, said if there was an error, it wasn’t the provider’s.

“It should be the fault of Medicare and those who indicated that she was a qualified person,” Pillay said. “(The provider is) going by what documents are presented, and if it shows you qualify for the services, they’re going to give you the services.”

That sentiment is also covered by Section 1870(b) of the Social Security Act.

“It bars recovery from providers that are ‘without fault,’ ” said Susan Orr, a health law attorney with Tsoules, Sweeney, Martin & Orr in Exton, Penn.

But like all things government, it gets more complicated.

Orr cited Section 638 of the American Taxpayer Relief Act of 2012. Signed into law in January, it amended the rules, allowing Medicare five years to recoup payments rather than just three. This was because of a government report that said the three-year limit was a detriment to Medicare’s ability to collect overpayments.

Really? Three years isn’t long enough for Medicare to check its billing records?

Orr said if notice of the overpayment was sent to the provider prior to January 2013 — and it was — then Medicare should only go back three years, she said.

Medicare reviewed the paperwork we sent but its position didn’t change, citing the 1996 rule and saying the patient was not qualified to receive benefits.

The spokesman also said the paperwork from Social Security verifying the patient’s eligibility “was incorrect.”

“It is possible for SSA to enroll someone in Medicare regardless of residency status,” he said, but that doesn’t mean Medicare will pay the bills.

That’s true, said Social Security, but it also said those with end-stage renal failure don’t have to reach the same bar as other immigrants to qualify.

Plus, why allow enrollment and give a Medicare card if someone isn’t eligible?

No one could answer that question.

Medicare said it continues to review the appeals, but “the paperwork was not submitted correctly or some of the information we required was not submitted at all.”

Hold on a second.

Is it that the patient shouldn’t have received the benefits in the first place, or that the appeals — which Medicare said initially it had no record of — were not submitted properly?

“They keep hitting the play button and repeating the same thing, but they never look at the facts,” said Eve Zucker-Strauss, one of the practice’s owners. “Is this how the government works?”

We asked Medicare about the “without fault” and three-year lookback rules, and we asked again if it would tell Treasury to call off the double-dipping dogs.

“That’s our statement. No more follow-ups,” the spokesman said. “Last point, we’re aware of it and will take care of it.”

At least, hopefully, Treasury will return the money it wrongly collected and not collect any more.

The patient has hired an attorney, and that’s a good thing. If Medicare decides the provider wasn’t at fault, Medicare can still try to collect from the patient directly.

“Is it my problem if they made a mistake?” Zucker-Strauss said. “We rendered service in good faith. I’ll go to my grave before I give up.”