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How are CMS Recovery Audit Contractors going to be stopped?

  September 29, 2015

Question:

Jennifer,

I'm in the process of a RAC Medicare Audit. How is what CMS is doing legal?  How can they request this many charts?  How can they question my medical decision making? How can they start earning interest and make me wait years for a result?  What kind of system is this?

Not trying to sound accusatory in my questions, but can you shed some light?  How can they be stopped?  What can I do to help?

Thanks in advance.

Dr. P


Answer:

Dr. P, I wrestle with these questions constantly. How can members of Congress, patients themselves, have passed legislation authorizing the criminal and overreaching authority of the RACs?  Well, they did.  And for years now, YEARS!, practitioners have been subject to downright abuse.  The sheer volume of records requested, the lack of ability to speak with a human being in the review process, the lack of compromise and finality of determinations, the pay structure to the auditors (they receive a percentage of the money they recoup back as payment), the interest accruing, and that's just the overpayment audits!  We did not even get to the prepayment reviews! 

Its any wonder anyone still remains a par doc in the Medicare system!!!

So, what can you do? You elect to take Medicare and right now Medicare is legally authorized, with the judiciary system assistance (the ALJ program as the third stage of review) to violate practitioners and their ability to practice with such disruption.  You have 3 options - 1. drop out.  2. fight city hall on your own. 3. support organizations collating support to fix things through the legislature. 

One such group is the American Hospital Association.  Currently legislation supported by the AHA is pending that is aimed to: 

 
  • Eliminate the contingency fee structure; instead, it would pay RACs a flat fee, as every other Medicare contractor is paid, to reduce the financial incentive for overzealous auditing practices.
  • Reduce payments to RACs that are inaccurate in their audit determinations and have high appeals overturn rates.
  • Fix the Centers for Medicare & Medicaid Services’ unfair rebilling rules by allowing hospitals to rebill claims when appropriate.
  • Require RACs to make their inpatient claims decisions using the same information the physician had when treating the patient, not information that becomes available after the patient leaves the hospital.
  • http://www.aha.org/presscenter/pressrel/2015/150501-pr-RAC.shtml 
Now, of course, the AHA is Hospital related and Hospital interested.  It has been effective, with a limited period of time offered where Hospitals could negotiate down audit dollars and wrap up RAC audits.  Individual practitioners have not been offered such an opportunity. 
 
The AMA has been working on limiting RAC rights as well - http://www.ama-assn.org/ama/pub/physician-resources/solutions-managing-your-practice/coding-billing-insurance/medicare/recovery-audit-contractors.page? but in my opinion less successfully.  

My advice - do not sit on the sidelines, get involved.  Write to your congressmen/women and lodge complaints, support legislation and push for change.  

Contact your representatives here - https://www.opencongress.org/people/zipcodelookup.  This is a non-partisan issue.  This is a patient issue.  These audits are impacting care. 
 
I just have to add, to add insult to injury, in our firm's defense of clients against the RACs, we always highlight to the RACs the Physician Treatment Rule, which was passed by legislation and states deference is to be paid to the treating provider.  This statute is disgraced with each RAC audit, where laypersons and lower licensees are flagrantly substituting their judgement for the practitioner under review.  I guess that's what we get in our webmd society. 
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