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  • Michael Breslin

Top 5 Reasons Not To Hire an Attorney for a Medicare Audit

Updated: Oct 21

MUST READ BEFORE RESPONDING TO YOUR AUDIT

Let me start off by saying that I have nothing against lawyers. Quite the contrary. I think lawyers can be invaluable at times. I use them all the time, however, I think they are far too expensive for what they really bring to the table regarding a Medicare audit defense. I get that one may “feel” more protected by having an attorney, but quite honestly, they do not provide the value or the experience to defend Medicare audits… other than if you committed fraud. Other than that, and I assume that no one is attempting to commit fraud, I would NEVER pay an attorney to defend my Medicare audits.


So, before we jump into my reasons why you should never hire an attorney for audit responses, please allow me to tell you about my background and why I feel you need my advice. I have been an executive in the DME industry for over 10 years. Over the past ten years, I have worked as:

1. Sr. Director of Operations for Liberty Medical, a subsidiary of Medco

2. Chief Operating Officer at ABC Home Medical Supply

3. Served on the Executive Leadership Team at McKesson Patient Care Solutions


While in those positions, my teams have been responsible for placing, verifying, shipping, billing, and posting MILLIONS of orders, spanning a multitude of product lines and payors. In addition, we received numerous audit letters from Medicare, Medicaid, and commercial payors and we successfully won ALL our audits. In fact, we won well over 90% of all claims we submitted in response to an audit; and we NEVER hired an attorney to defend an audit for us in any audit that I was responsible for.


So now I will get into the TOP 5 reasons why you should never hire an attorney to defend a Medicare audit.

REASON #1: Lack of Actual Healthcare Experience

Lawyers know laws. Some even know Medicare. What they do not know is how to run a DME, Home Health, or medical business. They know nothing about how to verify insurance, or validate medical records, or obtain medical records, how to speak with referral sources, how to bill claims, or how to explain the process and/or impact to a patient. Most importantly, they know nothing about unbilled revenue, how to manage unbilled revenue so the business can afford to stay in business or how to improve process flows that ensure your business improves quality, compliance and appeal win rates. They simply know laws. The great thing here is that Medicare and payors are clear on what the guidelines are, and if you find an experienced partner to help you through the audit process, they know exactly how to get your business to successfully win your audits.

REASON #2: Lack of Clinical Expertise

When you hire an attorney, you hire them for their LEGAL expertise; not necessarily their clinical/medical expertise; however, clinical experience is solely needed in this process. Think about it for a minute, the MAC’s and RAC contractor’s employee clinicians on their teams… why should you not have a clinician on your team? It is one thing for a documentation specialist to review an SWO or WOPD, but it is a completely different level of experience to effectively and efficiently review medical records, hospital records, diagnostic test reports, etc. and be able to understand the clinical terminology included in those records and test reports. Many times, companies reach out unnecessarily for additional medical records when the required elements are embedded in the existing documentation. This erodes confidence between the referral source and the supplier, as well as, drive up your labor costs. Furthermore, since the documentation, billing rep and even the attorney, who responds to the audit, does not possess the necessary clinical skills, then the audit response is missing the necessary clinical arguments as to why the claim should be paid.


When clinicians are responding to audits or reaching out for missing medical documentation and engaging fellow clinicians, the conversations and engagements are completely different. You may not like it, but it is what it is and now you at least understand a key tool that you need in your tool kit in order to win and get paid.

REASON #3: Lack of Billing Expertise

I’ll say it again… When you hire an attorney, you hire them for their LEGAL expertise; not necessarily for their billing experience. How can an attorney effectively defend a medical claim if they do not possess the proper understanding of modifiers, utilization rates, non-covered items, ICD-10’s, 1500 forms, pre-authorizations, etc.? So, once again, the expensive law firm comes up short in terms of knowledge. If they cannot provide the necessary billing guidance, then why would you engage them for an audit response in which billing errors could very well be the reason why you are in the audit in the first place?

REASON #4: Lack of Medical Documentation Expertise

In my opinion, a DME business is only as good as their medical documentation. In another words, the medical records of a DME, or any healthcare, business is the foundation in which the business stands. Just like a building, if the foundation is below standard then the business can never reach its full potential. Ten years ago, it may have been different, but in this regulatory climate documentation is EVERYTHING. Also, in my opinion, we do not invest enough time, money, training, and resources into our medical records processes and teams. As business owners, we typically hire laymen and try to turn them into documentation experts. How do we typically achieve this? By putting them next to other laymen turned documentation experts. This is ridiculous for a couple of reasons:

1. There is no clinical guidance or training by clinicians to teach medical terminology or diagnosis states so our doc teams can understand what, when, and why we need additional records; and

2. We never update the tribal knowledge with new knowledge, so we teach them bad, outdated, misunderstood information; and

3. We still expect them to be experts and to protect us from audits.

If lawyers know laws, and our documentation experts are not as experienced as we need them to be, then why would we pay for guidance that does not teach us how to be better in the future? Do we REALLY believe that this wave of audits is the last wave??? Don’t kid yourself, audits are on the RISE and will only get worse with Medicaid and commercial payors now jumping in. So once again, if you do not learn how to win these audits, and how to fix your processes, then how can you afford to remain in business with unbilled revenue and bad debt/write-offs increasing, and reimbursement rates decreasing… and then having to overpay for attorneys. Knowledge is king and if you are not an expert in the documentation requirements of your product lines, then your foundation is guaranteed to collapse.

REASON #5: Cost & Value

Cost is one of the issues all business owners grapple with. Healthcare attorneys who defend Medicare audits charge $400+ PER HOUR. If you have ever paid for an attorney before, you know firsthand how quickly these charged hours can explode into large bills. Charges for emails, phone calls, texts, reports, meetings, preparing for meetings, etc., in additional to the actual work that needs to be completed. No wonder the costs skyrocket so quickly.


My question would be, why would anyone pay exorbitant charges to an attorney or law firm who has no healthcare business knowledge, little or no clinical expertise, no billing expertise, and no experience in medical documentation or retrieving medical documentation… and limited or no ability on how to audit proof your business in the future. The only one who seems to benefit from this relationship is the attorney/law firm.


What you the business owner needs, is a partner that can support you, train you, guide you, and respond effectively for you. You need to win today and be prepared for tomorrow and you need to spend your money wisely, based on logical reasoning and not on emotional reasoning that scares you into overspending on an attorney.

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The Boost Advisory Group Team is comprised of talented, knowledgeable and effective members that have acquired the necessary clinical expertise, executive business leadership, and product expertise that you deserve, and need in order to successfully defend a payor audit. Regardless of which type of audit or appeal you are facing, Boost Advisory Group is equipped to successfully help you win your appeals, improve your compliance and quality of documentation, and improve your overall financial health without having to spend exorbitant legal fees… and we provide a 100% satisfaction guarantee.

www.boost-llc.com 888-304-2480

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