MISSION

The FAIR Fund, or the Fund for Access to Inpatient Rehabilitation, is a common legal defense fund comprised primarily of leaders of inpatient rehabilitation hospitals and units who have organized to bring legal challenges to overly restrictive interpretations of medical necessity, burdensome documentation, and violations of procedural requirements by Medicare contractors.

The FAIR Fund’s mission is to raise awareness of, and build support for, policies that will preserve and increase access to inpatient hospital rehabilitation. Members and supporters of the FAIR Fund believe that exercising the legal rights of providers is vital, and providers must challenge the restrictions in access to inpatient hospital rehabilitation that the Centers for Medicare and Medicaid Services (CMS) and its contractors have systematically pursued in the recent past.

The FAIR Fund seeks to establish precedent-setting decisions with widespread application at the federal court level that will clarify medical necessity and documentation requirements for inpatient hospital rehabilitation and ensure that Medicare contractors use proper procedures when auditing claims.  The FAIR Fund will also challenge extensive delays in Medicare appeals and seek a global resolution of pending and future overpayment determinations, for the benefit of the entire IRF field.

CURRENT FAIR FUND PRIORITIES

The FAIR Fund has three immediate areas of focus in the coming months and years:

  1. Continuing to impact the resolution of the ALJ backlog and the delays in ALJ decisions that result from the backlog;
  2. Working with CMS and the Office of Medicare Hearings and Appeals (OMHA) to structure a voluntary global resolution with IRF providers of denied claims; and
  3. Bringing federal court suits to establish favorable precedents on IRF documentation requirements.

FAIR FUND LEADERSHIP AND MEMBERSHIP

To become a member of the FAIR Fund, a $5,000 contribution is required.  The Steering Committee is the governing body of the FAIR Fund. An inpatient rehabilitation hospital or unit that joins the FAIR Fund may elect to join the Steering Committee and receive two votes with an initial contribution of $25,000. A member may also join the Steering Committee with one vote with an initial contribution of $15,000.  Members may combine resources at a minimum of $5,000 per IRF for one or two votes on the Steering Committee. Of course, steering committee leadership, membership, and donations at ANY level are welcome and encouraged. Every little bit counts.

All FAIR Fund members have access to a compendium of Medicare audit and appeal materials to assist them in the appeals process.  This compendium is updated periodically and includes electronic appeal templates for each stage of administrative appeal and other documents supporting the medical necessity of inpatient rehabilitation care.  These documents may be used by FAIR Fund members as they appeal their own claim denials. FAIR Fund attorneys developed these documents based upon their extensive experience appealing inappropriate medical necessity denials around the country. These documents will be important tools to strengthen the ability of members to challenge and successfully overturn inappropriate medical necessity denials.

ACTIVITIES AND ACCOMPLISHMENTS

FAIR Fund had an active decade defending the collective rights of IRF providers and the patients they serve.  We employed multiple legal strategies to accomplish our goals.  Following is a brief summary of the many activities we have pursued on behalf of members and the entire IRF field.

Litigation

Actively engaged in litigation to force the Department of Health and Human Services (HHS) to decide administrative law judge (ALJ) appeals within the 90-day deadline required by the Medicare statute.  The FAIR Fund submitted four friend-of-the-court briefs to the D.C. Circuit Court of Appeals, the Fourth Circuit Court of Appeals, the U.S. District Court for the District of Columbia, and the U.S. District Court for the Eastern District of North Carolina in support of hospitals seeking to enforce the deadline.

The FAIR Fund’s briefs educated the courts about the particular impact of the ALJ backlog on IRFs and their patients.

The FAIR Fund’s briefs were cited favorably by the D.C. Circuit and the D.C. District Court.  The FAIR Fund helped convince the D.C. Circuit that the ALJ backlog is having a real impact on human health and welfare, which was a significant factor supporting the D.C. District court’s subsequent order requiring HHS to clear the ALJ backlog.

Spearheaded opposition to Medicare contractors that reopen old claims by representing Palomar Medical Center in an important case in the Ninth Circuit Court of Appeals.

Challenged IRF medical necessity denials to the Medicare Appeals Council, ordered the ALJ to hear testimony by an independent medical expert and to more thoroughly analyze the appeals.  These cases were resolved in the provider’s favor.

Advocacy from a Legal Perspective

Negotiated with officials from the Centers for Medicare & Medicaid Services (CMS) to settle pending IRF ALJ appeals.  These negotiations were in partnership with AMRPA and the Federation of American Hospitals (FAH).  These discussions are ongoing.

The FAIR Fund prepared an extensive white paper to educate these officials about IRF care and coverage, and the extensive burden caused by technical documentation denials.

The FAIR Fund worked with AMRPA to survey IRFs to compile data about the volume and success rate of Medicare audits and appeals.  The resulting statistics confirmed anecdotal evidence that IRFs win approximately 80% of Medicare appeals.  The FAIR Fund and other IRF groups pointed to this survey to support their settlement proposals to CMS.

Commented on CMS’s recent Request For Information (RFI) on CMS Flexibilities and Efficiencies in the Inpatient Rehabilitation Facility (IRF) Prospective Payment System Proposed Rule for FY 2018, as well as the Medicare Red Tape Relief Project being advanced by the House Ways and Means Committee.  The FAIR Fund requests modifications to the IRF coverage regulations to ease burdens on IRFs and their patients and other, more broad-based reforms to the audit and appeals processes.

Asked HHS Secretary Price to grant regulatory relief to providers by withdrawing the pending Medicare regulation on the 90-day timeframe for ALJ decisions of Medicare claim appeals.

Worked with the Senate Finance Committee on its draft Audit and Appeal Fairness, Integrity, and Reforms in Medicare (AFIRM) Act, which would reform Medicare audit and appeals processes.  The FAIR Fund joined AMRPA in submitting detailed written comments to this important legislation and stressed strong opposition to a proposal to allow Recovery Auditors to perform pre-payment review.

Requested that the Office of Medicare Hearings and Appeals revise and improve its ALJ procedures.

Convinced CMS to moderate the Medicare IRF coverage criteria.  In June 2009, the FAIR Fund fully engaged with CMS on the proposed revisions to the federal regulations and the Medicare manuals from a legal perspective by offering extensive comments and complementing AMRPA’s advocacy strategy on IRF coverage policy.

The FAIR Fund successfully challenged CMS’s merger of the so-called “60% Rule” IRF classification criteria and the coverage standards, among many of the other changes proposed.

The FAIR Fund strenuously opposed CMS’s efforts to create “rules of thumb” for coverage.

Many of the FAIR Fund’s positions were reflected in CMS’s final regulations and manuals, including maintaining the distinctions between criteria used to classify IRFs and the actual coverage criteria, the removal of formal “rules of thumb,” and exceptions to the various timeframes for documentation and services, including the “Three Hour Rule” for therapy services.

Education and Technical Assistance to FAIR Fund Members

The FAIR Fund continuously monitors legal, regulatory and policy developments in IRF coverage and appeals, analyzes these developments from an IRF perspective, and reports key developments to members.

The FAIR Fund created a comprehensive guide to the 2010 coverage criteria for FAIR Fund members, entitled, Medical Necessity Guide:  Minimizing the Impact of Medicare Audits of Inpatient Hospital Rehabilitation Care.

The compendium was designed to serve as a useful, one-stop reference guide for administrators and staff at IRFs when responding to Additional Documentation Requests and challenging Medicare denials at every level of administrative appeal.

This compendium includes a number of checklists and tips, including:

Electronic template appeal letters for FAIR Fund members to customize for their appeals at the redetermination, reconsideration and ALJ levels of appeal.  These templates were designed to help IRFs efficiently and effectively appeal large numbers of claim denials and helped build a consistent set of legal arguments across the country.

Slides and transcripts from various CMS presentations on the IRF coverage criteria.

Copies of reference materials, including revised manual sections.

A copy of the final Medicare IRF regulations.

An updated compendium will be available for new and existing FAIR Fund members who join for the 2018 calendar year. 

Steering Committee

Bacharach Institute for Rehabilitation
Brooks Rehabilitation
Burke Rehabilitation Hospital
Casa Colina Hospital and Centers for Healthcare
HealthSouth Corporation
JKF Johnson Rehabilitation Institute
Kessler Institute for Rehabilitation
Kindred Hospital Rehabilitation Services
Magee Rehabilitation Hospital  
MossRehab
Partners Continuing Care and Spaulding Rehabilitation Network
Rehabilitation Institute of Michigan

Shirley Ryan AbilityLab (formerly the Rehabilitation Institute of Chicago)
Siskin Hospital for Physical Rehabilitation

Executive Committee

The Executive Committee includes the officers approved by the Steering Committee. This Committee provides advice and direction to the Steering Committee on several issues, including, but not limited to, selection of test cases, litigation strategies, and fundraising efforts. The Officers are as follows:

Felice Loverso, PhD
President

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Richard Kathrins, PhD
Treasurer

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Nancy Paridy, JD
Secretary

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Bruce Gans, MD
Chair, Medical Review Committee

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Beth Rosenbaum, JD
Chair, Litigation Review Committee

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Justin Hunter, JD
Member at Large

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BECOME A FAIR FUND MEMBER TODAY

To join, call Rebecca Schnorf at (217) 321-2477. The FAIR Fund is led solely by IRFs who are committed to challenging Medicare policies that limit access to inpatient rehabilitation care. We need your help to level the playing field and enable IRFs to provide medically necessary rehabilitation services to Medicare beneficiaries with the security of knowing their services will be covered and reimbursed. The work of the FAIR Fund is critical to the future of the IRF field. All IRF leaders should join the FAIR Fund today. Membership is available at several levels:

· Silver: a $5,000 contribution comes with full access to member benefits, but these members do not direct the FAIR Fund agenda

· Gold: a $15,000 contribution entitles an IRF all member benefits and one vote on the Steering Committee, which is the governing body of the FAIR Fund.

· Platinum: a $25,000 contribution entitles an IRF to all member benefits and two votes on the Steering Committee.

Member contributions are the sole funding source of the FAIR Fund. When assessing the appropriate level of membership, IRFs are encouraged to consider how much they can contribute to the mission of the FAIR Fund in addition to the benefits. Members may combine resources at a minimum of $5,000 per IRF for one or two votes on the Steering Committee. Of course, Steering Committee leadership, membership, and donations at ANY level are welcome and encouraged.

Fewer than 15 of the premier IRFs across the country shoulder the burden of financially supporting the FAIR Fund, and yet its accomplishments benefit ALL inpatient rehabilitation hospitals and units. Medicare audits and appeals, the ALJ backlog, and overly aggressive tactics by CMS contractors will continue as long as they remain unchallenged.

For more information on FAIR Fund membership, or to speak directly with a FAIR Fund Steering Committee member or FAIR Fund counsel, call Rebecca Schnorf at 217-321-2477.

FAIR FUND MEMBERSHIP BENEFITS

The FAIR Fund exists not only to promote policies that increase access to care—membership also comes with tools to navigate the ever shifting Medicare audit and appeals policies:

· FAIR Fund Compendium. All FAIR Fund members have access to a compendium of Medicare audit and appeal materials to assist them in the appeals process. This compendium is updated periodically and includes electronic appeal templates for each stage of administrative appeal and other documents supporting the medical necessity of inpatient rehabilitation care. These documents may be used by FAIR Fund members as they appeal their own claim denials. FAIR Fund attorneys developed these documents based upon their extensive experience appealing inappropriate medical necessity denials around the country. These documents will be important tools to strengthen the ability of members to challenge and successfully overturn inappropriate medical necessity denials.

· Annual Consultation. Each member is entitled to an annual consultation with FAIR Fund counsel to discuss issues with Medicare audits and appeals

· Regular Updates. The FAIR Fund is constantly monitoring CMS policies that affect IRFs, litigation that my impact the field, and congressional actions that can alter policies governing IRF coverage. The FAIR Fund provides all members with regular updates, and Steering Committee members decide whether FAIR Fund action is needed.

“Every IRF leader I speak with is frustrated with the Medicare audit and appeals process, but too few IRF leaders put their money where their mouth is,” said Felice Loverso, President of the FAIR Fund and President and CEO of Casa Colina Hospital and Centers for Healthcare.  “The FAIR Fund’s work benefits all IRFs and we need everyone to lend a hand so we are all pulling in the same direction.  That’s the only way to help level the playing field on IRF audits and appeals.”

Privacy & Contribution Policy

Personal Information
If you choose to become a FAIR Fund member or simply make a donation, you will be asked to provide contact information and financial information (such as a credit card number and expiration date). This information is used for billing purposes and to process your payment. The FAIR Fund handles all of this data with confidentiality.

Third Parties
Any personal information provided to the FAIR Fund will not be traded, rented, sold or otherwise shared with anyone outside the organization, or used for reasons beyond those contemplated in this statement. From time to time, we may engage third parties to process your information on our behalf; however, none of the FAIR Fund’s affiliates (such as our credit card company) have permission to retain, share, store or use personal information for any reason other than processing the requested membership payment or donation.

Security
To prevent unauthorized access, disclosure and improper use of your information, we have established appropriate physical, electronic, and managerial safeguards to protect the information we collect in accordance with our privacy policy.

 

Contact

Rebecca Schnorf
FAIR Fund
(217) 321-2477
rschnorf@firminc.com

 

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