No matter how carefully your records are managed, there’s always the risk you may find yourself in receipt of an overpayment decision issued by the RAC. Issued in the form of a repayment demand letter, there are specific steps you can take to appeal the decision if you think the RAC results are in error. There are a number of legal defense strategies that may be used in the RAC appeals process, so consulting with an attorney is a good first step.
If you decide to appeal an RAC audit, it’s worth noting that the RAC appeals process follows the same process as the process established for Medicare appeals. The five-level process detailed below can be time-consuming and for best results, you must be ready to provide adequate documentation to support your claim:
RAC Appeals Process
· First level: Also referred to as redetermination, these appeals are made to the Medicare Fiscal Intermediary or the initial processor. The first appeal must be filed within 120 days after receipt of the audit notification. At this level, any amount can be appealed. The appeal must include both From CMS 20027, a copy of the audit notice and an explanation detailing the basis for the appeal. The intermediary must respond within 60 days from receipt of the appeal.
· Second level: At this level, the appeal is made to a Qualified Independent Contractor (QIC). As with first level appeals, any amount may be appealed. Second level appeals must be filed within 180 days of receipt of the redetermination decision. Appeals may be filed using Form CMS-20033 or through written request and all supporting documentation, including the initial audit letter and the first level decision, should be included. Second level appeals are conducted on record without a hearing. In most cases, the QIC has 60 days to issue its decision; if the decision is not issued within 60 days, the provider may accelerate to the third level by filing with the Administrative Law Judge to initiate the third level of appeal.
· Third level: This level is available only for amounts of at least $140 and involves a hearing before an administrative law judge (ALJ). Requests for these appeals must be made within 60 days after receipt of the QIC decision and may be made using From CMS-20034 A/B. The hearing may be held via telephone or videoconferencing, or an off-record determination may be requested by the provider. In-person hearings are also available under special circumstances. ALJ decisions must be issued within 90 days of receipt of the request of a hearing, but that deadline may be extended in certain cases. When the deadline is exceeded and no compelling reason is given, or if the provider disagrees with the decision, the provider may move to the fourth level of appeals.
· Fourth level: Requests for these appeals must be made within 60 days of receipt of the decision by the ALJ and are made with the Medicare Appeals Council (MAC) using Form DAB-10. The decision of the MAC must be issued within 90 days of receipt of the provider’s request, but again, the timeframe may be extended due to special circumstances. When the timeframe is exceeded or if the provider disagrees with the decision, a fifth – and final – level appeal may be filed.
· Fifth level: These appeals are made via a judicial review in a federal district court and are only available when the total being disputed is at least $1,400. Requests for fifth level appeals must be made within 60 days of receipt of the decision issued by the MAC. Unlike the other levels, there is no timeframe by which fifth level determinations must be made.
At all levels of appeal, timing is critical, and when taken through the fifth level of appeal, the entire process may take as long as two years. Appeals forms may be downloaded via the CMS website, but before you being the appeals process, be sure to consult with your attorney to understand all your defense options.
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