ATTACK of the RAC

1. ATTACK of the RAC How to prepare and respond to RAC audits

2. Overview • Current Status • How to Prepare • Education • RAC Response Team • Independent Audit • Communication • How to Respond • Documentation • Rebuttal • Appeals Process

3. Current Status in Virginia • Region C • Contractor: Connolly • Subcontractor: Viant • MAC Delay- Medicare Part A • Current Negotiations- Medicare Part B • 50 Day Countdown…

4. How to Prepare: Education • Learn from colleagues, the Demonstration Project and other sources • Medical necessity • Coding errors • RAC Status Documents (www.cms.gov/rac) • OIG Work Plan • Connolly’s Identified Issues http://www.connollyhealthcare.com/RAC/pages/approved_issues.aspx • Education for physicians and staff • Focus on areas of known weaknesses

5. Demonstration Results

6. How to Prepare:Independent Audit • Self Disclosure • Important to work with legal counsel • Legal obligations • Benefits and Consequences • Process for Voluntary Refunds

7. How to Prepare:RAC Response Team • Develop a RAC Response Team Now • Include members from all areas of risk • On-going duties • Team responsible for entire RAC process • Assessing areas of risk • Keeping track of all record requests • Implementing compliance strategies • Handling all RAC reviews and appeals from start to finish • Key person for all RAC communications

8. Number of claims requested, Number of denied claims, Date of reimbursement or recoupment by CMS, The amount of reimbursement recouped, All communications between the facility and RAC, Status of appeals, and Complete timelines RAC RESPONSE TEAM:Important Information to Track

9. How to Prepare:Communication • Provide Connolly with Your Practice’s Contact Information: http://www.connollyhealthcare.com/RAC/pages/provider_contact_information.aspx • Document Communications with Medicare • Local Coverage Determinations and Other General Communications

10. How to Respond:RESPOND! • Respond, Respond, Respond • No Response (or an untimely response) equals automatic denial and potential loss of right to appeal • Time to Respond: must provide requested records within 45 days • RAC Team should control this process • Tracking Tools- Record Request Limits

11. How to Respond:Documentation • Issue: Majority of RAC audits involve Medical Necessity • Improve chart documentation • Submit a COMPLETE copy of the medical record • Self-assessment of the claim and the medical record before responding

12. How to Respond:Rebuttal • Provider can rebut RAC’s initial determination • File with RAC within 15 days after receipt • When to consider: New documentation to support the claim • Not required • Does NOT toll deadline for filing formal appeal

13. How to Respond:Formal Appeals Process • 5 Levels (Medicare Appeals Process) • Redetermination • Reconsideration* • Administrative Law Judge Hearing • Medicare Appeals Council Review • Federal Court

14. Results of the Demonstration • Viant: ???

15. To Appeal or Not to Appeal?Factors to Consider • Cost of appeal • Resources • Implications • Quality of documentation • Clinical support • Legal involvement • Time

16. FI, carrier 60 days+14 day extension 180-194 Days Notice Letter 120 Days to File 180 Days to File 240 Days QIC 60-day time limit 60 Days to File 780- 794 Days 150 Days ALI 90-day time limit 60 Days to File 150 Days MAC 90-day time limit 60 Days to File US District Court Last Level- No time limit 60+ Days Formal Appeals Process:Timeline

17. Formal Appeals Process:Appeal Strategies • Advocate the Merits • Treating Physician Rule • Waiver of Liability • Provider Without Fault • Reopening Not Based on Good Cause • Challenging the Statistics

18. Appeal Strategies:Advocating the Merits • Not technically a “defense” • Factual and legal arguments supporting payment • Prepare position paper • Use qualified expert to confirm medical necessity

19. Appeal Strategies:Treating Physician Rule • Medical necessity • Treating physician is in the best position to judge • Physician’s determination should be given more weight than RAC • RAC uses medical professionals who have never met or assessed the patient

20. Appeal Strategies:Waiver of Liability • Medical Necessity • Payment permitted if provider “did not know, and could not reasonably have been expected to know, that payment would not be made for such services” • Tip: Maintain records of all communications with Medicare representatives • i.e. Overpayment claim overturned in past

21. Appeal Strategies:Provider Without Fault • Medical Necessity • Generally, provider considered to be without fault if: • Exercised reasonable care • Made full disclosure of all material facts • Had a reasonable basis for assuming payment was correct • Considers various factors • Age, linguistic limitations, etc. • Document phone calls, guidance from CMS or carrier

22. Appeal Strategies:Reopening Not Based on Good Cause • RACs must adhere to regulatory timeframes for reopening initial determinations • For Medicare generally: • Within 1 year – for any reason • Within 4 years – for good cause • No deadline if reliable evidence of fraud • RAC limited 3-year look-back period • Only back to October 2007 • Good Cause? • Limitation: 2009 CMS Transmittal

23. Appeal Strategies:Challenging the Statistics • RACs may extrapolate in certain circumstances • Must follow Medicare’s statistical guidelines • Actual Overpayment v. Extrapolation • Use a third party expert to challenge the validity of the extrapolation

24. Conclusion • Take steps to prepare NOW • Establish a RAC Team • Limit exposure- Education • Maintain adequate records • Respond • Appeals process • Deadlines and Defenses

25. Questions • Patrick C. Devine, Jr. pdevine@williamsmullen.com757.629.0614 • Courtney A. Miller cmiller@williamsmullen.com 757.629.0665