RAC Audits: If It Walks Like a Duck and Quacks Like a Duck, It IS a RAC Audit

Recently, hundreds of dentists across North Carolina received Tentative Notices of Overpayment (TNOs) from Public Consulting Group (PCG) demanding recoupment for reimbursements made to dentists who rendered services on Medicaid for Pregnant Women (MPW) eligible recipients. There was no dispute at this hearing that these women were eligible for MPW according to the Department of Health and Human Services’ (DHHS) portal. There was also no dispute that these woman had delivered their babies prior to the date of dental service. So the question becomes: If DHHS informs a dentist that a woman is MPW eligible on the date of the service, does that dentist have an individual and separate burden to determine whether these women are pregnant. And if so, what is it? Have them pee in a cup prior to dental services?  See blog, and blog, and blog.

We do not have a definitive answer to the above-posed question, as the Judge has not rendered his decision. However, he did substantially limit these “nameless audits” or “non-RAC” audits to the RAC program limitations. In an Order on our Motion for Partial Summary Judgment, the Administrative Law Judge (ALJ) found that, even if the State does not agree that an audit is a RAC audit, if the audit conducted falls within the definition of a RAC audit, then the audit is a RAC audit.

The reason this is important is because RAC auditors yield such powerful and overwhelming tools against health care providers, the Affordable Care Act (ACA) limits the RAC auditors’ ability to look-back on older claims. For example, even though a provider is, generally, required to maintain records for six (6) years, the federal regulations only allow RAC auditors to look-back three (3) years, unless credible allegations of fraud exist.

Thus, when an auditor reviews documents over three-years-old, I always argue that the review of claims over 3-years-old violates the statute of limitations and federal law.

During hearings, inevitably, the state argues that this particular audit…the one at issue here…is not a RAC audit. The opposing side could no more identify which acronym this audit happens to be, but this audit is not a RAC. “I don’t know what it is, but I know what it’s not!”

Well, an ALJ looked past the rhetoric and pleas by the State that “this is not a RAC” and held that if it walks like a duck and quacks like a duck, then it is a RAC audit and, subsequently, the RAC audit limitations do apply.

In the case for this dentist, Public Consulting Group (PCG) audited claims going back as far as six years! The Department of Health and Human Services’ argument was that this audit is not a RAC audit. So what is it? What makes it NOT a RAC? Because you say so? We all know that PCG has a contract with DHHS to perform RAC audits. Is this audit somehow outside its contractual purview?

So I filed a Motion for Summary Judgment requesting the Judge to throw out all claims outside the three-year look-back period per the RAC limitations.

Lo, and behold, I was right!! (The good guys win again!)

To understand this fully, it is important to first understand what the RAC program is and its intention. (“It depends on what the definition of “is” is”).

Under 42 U.S.C. § 1396a(a)(42):

the State shall—(i) establish a program under which the State contracts (consistent with State law and in the same manner as the Secretary enters into contracts with recovery audit contractors under section 1893(h), subject to such exceptions or requirements as the Secretary may require for purposes of this title or a particular State) with 1 or more recovery audit contractors for the purpose of identifying underpayments and overpayments and recouping overpayments under the State plan and under any waiver of the State plan with respect to all services for which payment is made to any entity under such plan or waiver[].

(emphasis added).

RAC is defined as an entity that “…will review claims submitted by providers of items and services or other individuals furnishing items and services for which payment has been made under section 1902(a) of the Act or under any waiver of the State Plan to identify underpayments and overpayment and recoup overpayments for the States.” 42 CFR § 455.506(a).

Under this definition, PCG is clearly a recovery audit contractor. And the Judge agreed. If it walks like a duck and quacks like a duck, just because the duck protests it is a donkey, it is still a duck. (Hmmmm..wonder how this logic would carry over to the whole transgender bathroom issue…another topic for another blogger…)

RACs must follow certain limitations as outlined in the Code of Federal Regulations. For example, pursuant to 42 C.F.R. § 455.508(f), a Medicaid RAC “must not review claims that are older than 3 years from the date of the claim, unless it receives approval from the State.”

In this particular case, there were 15 claims at issue. Eleven (11) of those claims were outside the three-year look-back period!! With one fell swoop of an ALJ’s signature, we reduced the claims at issue from 15 to 4. Nice!

In DHHS’ Response to our Motion for Partial Summary Judgment, DHHS argued that, in this case, PCG was not acting as a RAC; therefore, the limitations do not apply. In support of such decision, DHHS supplied an affidavit of a DMA employee. She averred that the audit of this particular dentist was not per the RAC program. No rules were cited. No contract in support of her position was provided. Nothing except an affidavit of a DMA employee.

Obviously, it is my opinion that the ALJ was 100% accurate in ruling that this audit was a RAC audit and was limited in scope to a 3-year look-back period.

If it walks like a duck, quacks like a duck, it is not a donkey. No matter how much it pleads that it is, in fact, a donkey!

Remember the Super Bowl Ad of the Puppy, Baby, Monkey?:

superbowlpic

That is so NOT ok!

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on May 31, 2016, in "Single State Agency", Administrative Law Judge, Administrative Remedies, Alleged Overpayment, Appeal Rights, Appealing Adverse Decisions, Audits, Credible Allegations of Fraud, Dental Medicaid Providers, Dentistry Services, DHHS, Division of Medical Assistance, Gordon & Rees, Health Care Providers and Services, Knicole Emanuel, Lawsuit, Legal Analysis, Legal Remedies for Medicaid Providers, Legislation, Medicaid, Medicaid Advocate, Medicaid Attorney, Medicaid Audits, Medicaid Eligibility, Medicaid Providers, Medicare RAC, NC, NCTracks, North Carolina, OAH, Office of Administrative Hearings, PCG, Petitions for Contested Cases, Post-Payment Reviews, Public Consulting Group, Public Consulting Group, RAC, RAC Audits, Reconsideration Reviews and tagged , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink. Leave a comment.

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