RAC Audits: How to Deal with Concurrent, Overpayment Accusations in Multiple Jurisdictions

You are a Medicare health care provider. You perform health care services across the country. Maybe you are a durable medical equipment (DME) provider with a website that allows patients to order physician-prescribed, DME supplies from all 50 states. Maybe you perform telemedicine to multiple states. Maybe you are a large health care provider with offices in multiple states.

Regardless, imagine that you receive 25, 35, or 45 notifications of alleged overpayments from 5 separate “jurisdictions” (the 5th being Region 5 (DME/HHH – Performant Recovery, Inc.). You get one notice dated January 1, 2018, for $65,000 from Region 1. January 2, 2018, you receive a notice of alleged overpayment from Region 2 in the amount of $210.35. January 3, 2018, is a big day. You receive notices of alleged overpayments in the amounts of $5 million from Region 4, $120,000 from Region 3, and two other Region 1 notices in the amount of $345.00 and $65,000. This continues for three weeks. In the end, you have 20 different notices of alleged overpayments from 5 different regions, and you are terrified and confused. But you know you need legal representation.

 

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Do you appeal all the notices? Even the notice for $345.00? Obviously, the cost of attorneys’ fees to appeal the $345.00 will way outweigh the amount of the alleged overpayment.

Here are my two cents:

Appeal everything – and this is why – it is a compelling argument of harassment/undue burden/complete confusion to a judge to demonstrate the fact that you received 20 different notices of overpayment from 5 different MACs. I mean, you need a freaking XL spreadsheet to keep track of your notices. Never mind that an appeal in Medicare takes 5 levels and each appeal will be at a separate and distinct status than the others. Judges are humans, and humans understand chaos and the fact that humans have a hard time with chaos. For example, I have contractors in my house. It is chaos. I cannot handle it.

While 20 distinct notices of alleged overpayment is tedious, it is worth it once you get to the third level, before an unbiased administrative law judge (ALJ), when you can consolidate the separate appeals to show the judge the madness.

Legally, the MACs cannot withhold or recoup funds while you appeal, although this is not always followed. In the case that the MACs recoup/withhold during your appeal, if it will cause irreparable harm to your company, then you need to get an injunction in court to suspend the recoupment/withhold.

According to multiple sources, the appeal success rate at the first and second levels are low, approximately 20%. This is to be expected since the first level is before the entity that determined that you owe money and the second level is not much better. The third level, however, is before an impartial ALJ. The success rate at that level is upwards of 75-80%. In the gambling game of life, those are good odds.

 

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on January 25, 2018, in Administrative Law Judge, Administrative Remedies, Alleged Overpayment, Appeal Rights, Appealing Adverse Decisions, Audits, CMS, Due process, Durable Medical Equipment, Federal Law, Harassment, Health Care Providers and Services, HHS, Knicole Emanuel, Lawsuit, Legal Analysis, Legislation, Medicaid, Medicaid Attorney, Medicare, Medicare Administrative Contractor, Medicare Appeal Process, Medicare Attorney, Medicare Audits, Office of Administrative Hearings, Office of Medicare Hearings and Appeals, Petitions for Contested Cases, RAC Audits, Regulatory Audits, Tentative Notices of Overpayment and tagged , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink. 2 Comments.

  1. I was just in a Medicaid OAH hearing and one of Cardinal’s witnesses, their main witness, committed perjury. I provided documentation to the judge during the hearing, but it didn’t matter at all. Cardinal’s attorney wrote the Final Decision. The judge signed it and when I questioned why she had not referred the perjury charge to a Wake County prosecutor, she replied that the hearing was over. Why have OAH hearings?

  2. Was it a recipient hearing?

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