Legal Advice and Representation for Health Care Professionals Under Audit
Recovery Audit Contractors (RACs) work with the Centers for Medicare and Medicaid Services (CMS) to identify overpayments from Medicare and pursue recoupments from health care providers. RAC audits can have additional consequences as well, and providers that are facing audits must be cautious to mitigate the risks of facing an unfavorable audit determination.
As a health care provider that participates in Medicare, you expect your Medicare billings to be subject to review. Indeed, this is something that all providers have come to expect over the last couple of decades, as the costs of Medicare fraud have skyrocketed and the federal government has enhanced its efforts to combat Medicare waste and abuse. You have a compliance program in place; but, is it enough? Are you certain that you are compliant with the most-current Medicare billing regulations (and that you have fully complied with prior versions in the past)? Even if you are, will this be enough to prevent an unfavorable determination during a Medicare audit?
Recovery Audit Contractors (RACs) are part of the Centers for Medicare and Medicaid Services’ (CMS) “fee-for-service” recovery audit program. Along with Medicare Administrative Contractors (MACs), Fiscal Intermediaries (FIs), and other private companies, RACs work to uncover fraud and abuse within the Medicare billing system. In order to perform this function, they have been granted certain powers by CMS – powers which include the ability to demand certain information during “audits” of health care providers, and to mandate repayment of any amounts that they determine to have been improperly received as a result of false and fraudulent Medicare reimbursement claims.
Under federal law, an improper billing does not have to be intentional in order to lead to liability. RACs can review up to six years of past billing records – revised from three years under the recently-issued final rule for Reporting and Returning of Overpayments. They can seek recoupment of any amounts that they believe – based upon their auditing standards and methodologies – were paid in noncompliance with the Medicare Claims Processing Manual or other applicable standards. Unfortunately, mistakes are common, and providers who fail to adequately protect themselves during the audit process routinely find themselves forced to challenge unfavorable RAC determinations through the protracted audit appeals process.
Health Care Fraud Defense Lawyers for RAC Audits Providing Services to Client Across the Nation.
Oberheiden & McMurrey, LLP is a health care fraud defense law firm that represents providers across the nation and in RAC audits and appeals and in all sectors of the health care industry. Our clients have included physicians, pharmacists, dentists, hospitals, home health agencies, hospices, durable medical equipment (DME) companies, physician syndicates, and company executives – among many others. We have successfully represented clients across the country in invasive RAC audits and related federal investigations. Our former federal health care fraud prosecutors offer significant insight into the audit process from the RACs’ perspective (having worked closely with RACs during numerous audits and investigations), and our defense team focuses on executing comprehensive defense strategies focused on closing RAC audits quickly in order to prevent the consequences that can flow from unfavorable audit determinations.
“Our companies have worked with firms all over the country within various specialties and now use [Oberheiden & McMurrey LLP] almost exclusively. [Dr. Nick Oberheiden] represented our companies in some federal law investigations. His guidance and expertise allowed us to continue to concentrate on our core business as he dealt with the complex legal issues.” – Firm Client
How We Protect Health Care Providers During RAC Audits
There are several steps we can take to help protect health care providers during RAC audits. Our comprehensive approach starts with intervening in the audit process immediately, and reviewing the RAC’s actions to date in order to determine whether any legal violations or substantive errors have accrued. We have a multi-faceted approach to RAC audit defense.
- We conduct an internal assessment to identify any issues that may surface as a result of the RAC audit.
- We work to identify safe harbors, statutory exceptions, and specific Medicare billing guidelines that apply to our clients’ billing practices and financial relationships.
- We work closely with executive leadership and providing training to key personnel regarding appropriate and inappropriate communications with RAC auditors.
- We take action when RAC auditors exceed the scope of authority granted in their mandate from CMS.
- We identify and challenge RAC auditors’ flawed methodologies and conclusions, and ensure that selective review of a provider’s Medicare billing records does not lead to a faulty audit determination.
- We ensure that RAC auditors are applying the appropriate Medicare billing regulations, and not applying outdated regulations to current billings or current regulations to past billings.
- We preserve issues for appeal in the event of an unfavorable audit determination resulting in recoupments, prepayment review, program exclusion, and/or other penalties.
The sooner we get involved, the more we can do to help. While every case’s facts are different, our goal is to help resolve your audit without an unjustified determination of liability. Our attorneys offer free initial case assessments. Our team of health care fraud defense attorneys is available to take responsive action to your RAC audit immediately.
FAQs: Answers from Our Experienced Health Care Fraud Defense Attorneys
Q: Are RAC auditors qualified to assess the legal propriety of my health care company’s Medicare billing records?
In order to help ensure that the outcomes of RAC audits are as accurate as possible, CMS requires all Recovery Audit Contractors to employ personnel who are expected to be experts in various facets of the Medicare billing system. This includes certified coders, nurses, therapists, and a physician contractor medical director (CMD). Unfortunately, mistakes during the RAC audit process remain common, and providers frequently find themselves forced to challenge flawed liability determinations.
Q: What is involved in an RAC audit?
There are three types of RAC audits: automated, semi-automated, and complex. An automated audit does not involve review of the provider’s medical records. However, a semi-automated review may involve manual review of records by RAC personnel, and a complex audit can entail a comprehensive and invasive in-person review that can significantly disrupt your company’s day-to-day operations. Auditors may request to speak with billing personnel and other key employees as well; and, while providers are entitled to information about their audits, the process is often not as transparent as most providers would expect. These are among the numerous reasons why intervention and legal representation are critical, and why all providers need to be prepared to take proactive measures to protect themselves during the audit process.
Once the auditors have completed their review and the required discussion period has passed, the RAC will issue a determination of liability. If the RAC determines that recoupments are owed, the provider must pay quickly (or quickly file an appeal) in order to avoid interest and other penalties.
Q: Who are the RACs?
The Centers for Medicare and Medicaid Services (CMS) awarded the current RAC contracts to the following entities:
- Region 1 (Northeast) – Performant Recovery, Inc.
- Region 2 (South and Central States) – Cotiviti, LLC
- Region 3 (Eastern Seaboard and Southeast) – Cotiviti, LLC
- Region 4 (West Coast, Midwest, and Northwest) – HMS Federal Solutions
- Region 5 (Nationwide for Durable Medical Equipment (DME) and Home Health/Hospice (HHH) Services) – Performant Recovery, Inc.
More information about the current RACs is available from CMS: Medicare Fee for Service Recovery Audit Program.
Q: What is meant by the “fee-for-service” audit recovery program?
The “fee-for-service” audit recovery program means that RACs are paid on a contingency-fee basis. In other words, they are financially-incentivized to identify overpayments from Medicare, and they have no direct financial incentive to award underpayments to health care providers. During the 2015 fiscal year, RACs collected nearly $360 million in overpayments while awarding just $81 million in underpayments. From 2010 to 2015, RAC audits have resulted in liability of more than $8.9 billion for health care providers nationwide.
Q: Can an attorney help prevent an unfavorable RAC audit determination?
Potentially, yes. An attorney who has intimate knowledge of the Medicare billing regulations and who has extensive experience in health care fraud defense will be able to identify flaws in RAC auditors’ processes and procedures and challenge inaccurate findings before they are formalized in a final determination. While one option is to let the audit run its course and then file an appeal, the less-risky (and typically less-expensive) option is to take a proactive approach to defending against a RAC audit. The goal to this approach is to avoid the need to rely on the appellate process.
Q: What should I expect if I need to file an appeal?
If you have already received an unfavorable audit determination, or if it is too late to prevent the imposition of recoupment liability by a RAC, you will need to promptly begin preparations to file your appeal. We have covered what health care providers need to know about the appeals process in a separate set of Medicare Appeal FAQs.
Q: Can a RAC impose penalties besides recoupment of overbilled claims?
Yes. In addition to demanding recoupments, Recovery Audit Contractors can also deny payment of pending reimbursement claims and initiate prepayment review. These can lead to substantial cash flow issues for providers who rely on regular reimbursements from Medicare. If a RAC finds evidence of health care fraud, it can also refer providers to CMS, the U.S. Department of Justice (DOJ), the Office of Inspector General (OIG), and other federal authorities – and these referrals can lead to federal investigations that may ultimately result in civil or criminal charges.
5 Reasons to Choose Oberheiden & McMurrey, LLP
With your business’s financial stability and Medicare eligibility potentially on the line, you need to take a serious approach to your RAC audit defense. This means hiring seasoned legal representation, and choosing a firm with the experience needed to effectively overcome any RAC auditor mistakes and aggressive use of authority. At Oberheiden & McMurrey, LLP, we offer you representation against these issues and:
1. Government Experience
Several of our attorneys spent decades working in the DOJ, the U.S. Attorney’s Office, and other federal law enforcement agencies prior to entering private practice. We know what RAC auditors are looking for, and we know what it takes to successfully fend off a federal investigation.
As a function of our former government lawyer experience, we can quantify our success. Our goal is to resolve our clients’ audits and investigations without excess liability and without the government lodging civil or criminal charges.
Our senior attorneys hold significant government experience and their exclusive practice focus is on health care fraud defense. Managing Partner, Dr. Nick Oberheiden has appeared in television and radio as a contributor in the area of health care fraud.
4. Collaborative Approach
Contrary to firms where attorneys work in silos, our attorneys take a collaborative approach that allows each client to benefit from all of our attorneys’ collective government and private practice experience. We do this for our goal that every client receives the very best legal representation we can offer.
5. Hands-On Legal Representation
With our collaborative approach, our client have the opportunity to work directly with our senior attorneys. You will have access to the advice you need when you need it, and we will custom-tailor your RAC audit defense strategy to the specific demands of your business or practice.
Meet Our RAC Audit Defense Lawyers
- Attorney Nick Oberheiden has successfully represented health care executives, business owners, public officials, physicians, and lawyers in health care prosecutions across the United States. Dr. Oberheiden is the managing principal of Oberheiden & McMurrey, LLP, and he uses his experience in federal law to assist clients in Dallas, Garland, Mesquite, Richardson, McKinney, and the surrounding communities in federal health care investigations.
- Attorney Bill C. McMurrey has more than 30 years of experience in litigating cases involving health care law and in government investigations involving allegations of fraud. He has personally tried and won numerous complex cases in court, and he has successfully defended physicians, boards of directors, corporations, and other individuals and organizations against both RAC determinations and federal investigations.
- Attorney Lynette S. Byrd focuses her practice on civil and criminal litigation, Medicare and insurance audits, and general advice and counseling in health care law. She is a former Assistant United States Attorney with years of substantial trial experience under her belt. Ms. Byrd merges her significant litigation experience with her understanding of the relevant federal law.
- Attorney Glenn A. Harrison spent decades as a federal prosecutor, including his tenure as a former Department of Justice Trial Attorney and Special Assistant U.S. Attorney (SAUSA). He has represented the United States government in large-scale health care investigations, and today he uses that experience on behalf of people and entities targeted by those investigations. Glenn’s track record on both sides makes him a valuable advocate for hard-working professionals or businesses that might unexpectedly find themselves facing an adverse determination after an RAC audit.
Are You Facing An RAC Audit? Contact Oberheiden & McMurrey, LLP Right Away
Our experienced health care fraud defense attorneys and former federal prosecutors are available to speak with you about your RAC audit. We represent health care providers in RAC audits and appeals across the county. You can call us 24/7 at (888) 519-4897, or request a case assessment online and we will be in touch with you shortly.