(June 25, 2010): The purpose of this series of articles is to assess the Recovery Audit Contractor (RAC) Program from the perspective of physicians, home health, hospice, durable medical equipment (DME) providers, and other relatively small Medicare providers. As many non-hospital providers will acknowledge, early cries of wolf by law firms and consultants did a fine job of initially publicizing the RAC threat. Unfortunately, the threat of a RAC audit now appears to be largely ignored by non-hospital providers due to the seemingly widespread sense that RACs will likely continue to focus their efforts on large, institutional Medicare providers – the ultimate "low hanging fruit" in terms of potential Medicare overpayments. RACs are, in fact, a real threat to physicians and other small Medicare providers, despite the fact the contractors have passed over these providers in the past.
I. Recent CMS Efforts to Promote RAC Audits of Physician Practices and Other Non-Hospital Providers:
Over the last six weeks, the Centers for Medicare and Medicaid Services (CMS) has sponsored nationwide conference calls titled "Nationwide RAC 101 Call" specifically aimed at physicians, home health, hospices, and DME providers. Further, CMS conducted two general nationwide conference calls discussing the RAC program that were open to all Medicare providers.
These seemingly innocent informational calls were in fact extraordinarily significant, servicing almost as a "touchstone" for CMS and its RAC auditors. With the completion of these nationwide teleconferences, outreach has now been completed and CMS can affirmatively state that these non-hospital providers have been given multiple opportunities to learn about the RAC program and prepare for a RAC audit. All states are now eligible for review.
While CMS must still approve "issues" prior to their widespread review by the RACs, the contractors now have the billing data that they need to analyze and identify possible targets.
As physicians and other non-hospital providers prepare for possible audit, it is helpful to review hospitals’ experiences when preparing for and responding to a RAC audit. On June 22, 2010, the American Hospital Association (AHA) released its findings that the RAC program is having a widespread impact on almost all hospitals, even though many have not even been subjected yet to a RAC audit.[1] In fact, for the first quarter of 2010 alone:
-
84% of responding hospitals reported that RACs impacted their organization;
-
49% of responding hospitals reported increased administrative costs; and
-
17% of the hospitals using external resources to address RACs hired consultants at an average cost of almost $92,000.
So, what do providers and non-hospital Medicare providers need to know about RACs? This multi-part series will address the following: First, the purpose and impact of RACs; Second, how to respond to RACs when they come calling; Third, some of the emerging issues for physicians and other small Medicare providers regarding RACs.
II. What is a RAC?
The RAC program was created by Section 306 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA). Operating under the direction of the Department of Health and Human Services (HHS), RACs are independent third-party contractors tasked with identifying and correcting improper past Medicare payments. Each of four RACs has jurisdiction over a separate region of the United States.
After a three year demonstration in which RACs identified $1.03 billion in improper Medicare fee-for-service payments, the program became permanent earlier this year. RACs join scores of other Medicare audit contractors. CMS created the following table to clarify the role RACs are supposed to play compared to other contractors.[2] However, as we will see later in this series, these roles are not clearly delineated and the overlap in the review process can create substantial confusion and waste.
| Role of Medicare Review Contractors | |
|---|---|
| Improper Payment Function | Contractor Performing Function |
| Preventing future improper payments through pre-pay review and provider education | Medicare claims processing contractors |
| Detecting past improper payments | RACs |
| Measuring improper payments | CERT [Comprehensive Error Rate Testing] |
| Performing higher-weighted DRG [diagnosis related group] reviews and expedited coverage reviews | QIOs [Quality Improvement Organization] |
RACs are highly incentivized to hunt for evidence of overpayments in high-cost categories of service and to needle out errors that have nothing to do with actual patient care. RACs are paid on a contingency basis so it stands to reason that, during the initial program demonstration, only 4% of improper payments identified were underpayments. This "bounty hunter" approach also helps to explain why prior audits have focused almost exclusively on high-cost inpatient care services. Recent GAO testimony shed light on this situation and may cause RAC audits or other contractors to shift their focus to entities that do not have hospitals’ long history of review and compliance, namely physicians and other relatively small Medicare providers. Finally, a substantial percentage of overpayments collected by RACs during the demonstration program resulted from preventable coding errors, countering the myth that CMS is primarily focused on weeding out unnecessary service claims.
Providers in Region C may want to consider that the AHA found hospitals in that region, encompassing nearly 40% of all U.S. hospitals including those in Texas, Florida, and Virginia, reported the highest number of medical records requested, the highest amount of dollars targeted in medical record requests, and the highest number of denied claims(47% of the $2.47 million in denied claims reported in the first quarter of 2010).
III. Are There Any Safeguards to Protect Physicians and Other Small Group Providers From RAC Audits?
Based on the demonstration program, numerous providers and others have expressed concern that RACs are overly aggressive auditors. Despite some improvements, concerns about the RAC process are likely to persist. As recent testimony by the GAO Health Care Director pointed out, the oversight of RACs leaves something to be desired.
Changes have been made to reduce the RACs' unintended incentive to drive up fees (through the improper denial of claims). RACs are now required to pay back their contingency fee if the claim is overturned at any level of appeal, rather than just the first level as in the demonstration program.
Additionally, there are some limitations in place regarding the RACs' ability to overwhelm providers with record requests. RACs may not request records more frequently than every 45 days and, for instutitional providers, their requests are limited to 1% of all claims submitted for the previous calendar year. This is an overall limit, however, meaning that a RAC may determine the composition of the records in an additional document request. They can – and do – request categories of records up to the limit even if the request is disproportionate the provider’s business.
Finally, none of these improvements address the concern that the first several levels of the appeals process do not provide meaningful recourse for the overly aggressive auditing.
Should you have any questions regarding these issues, don’t hesitate to contact us. For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.