Can Medicare and Medicaid Auditors Double-Dip?

Five years ago, the Centers for Medicare & Medicaid Services (CMS) first compiled a list of services that the newly implemented recovery audit contractor (RAC) program was to audit. It’s been five years with the RAC program. What is it about the RAC program that stands out from the other auditor abbreviations?

We’re talking about Cotiviti and Performant Recovery; you know the players. The Recovery Audit Program mission is to reduce Medicare improper payments through the efficient detection and collection of overpayments, the identification of underpayments and the implementation of actions that will prevent future improper payments.

RACs review claims on a post-payment basis. The RACs detect and correct past improper payments so that CMS and carriers, and Medicare Administrative Contractors (MACs) can implement actions that will prevent future improper payments.

RACs are also held to different regulations than the other audit abbreviations. 42 CFR Subpart F dictates the Medicaid RACs. Whereas the Medicare program is run by 42 CFR Subchapter B.

The auditors themselves are usually certified coders or licensed practical nurses (LPN).

Last week, on Monitor Mondays a listener by the name of Lyn asked whether two separate auditors could audit the same record. Dr. Ronald Hirsch, a panelist on the same broadcast, responded in the affirmative: a CERT can audit a chart that another reviewer is auditing if it is part of a random sample. I agree with Dr. Hirsch. When a random sample is taken, then the auditors, by definition, have no idea what claims will be pulled, nor would the CERT have any knowledge of other contemporaneous and overlapping audits.

But what about multiple RAC audits? I do believe that the RACs should not overlap its own audits. Personally, I don’t like the idea of one claim being audited more than once. What if the two auditing companies make differing determinations? What if CERT calls a claim compliant and the RAC denies the claim? The provider surely should not pay back a claim twice.

Edward Roche, a panelist on Monitor Monday, presented on this issue a few weeks ago, and he called it double-dipping.

This doesn’t seem fair. What Dr. Hirsch did not address in his response to Lyn was that, even if a CERT is allowed to double-dip via the rules or policies, there could be case law saying otherwise.

I did a quick search on Westlaw to see if there were any cases where the auditor was accused of double-dipping. It was not a comprehensive search by any means, but I did not see any cases where auditors were accused of double-dipping.

I did see a few cases where hospitals were accused of double-dipping by collecting disproportional share hospital (DSH) payments to cover costs that had already been reimbursed, which seems like a topic for another day.

Who are Recovery Audit Contractors?

RACs in Regions 1-4 will perform post-payment review to identify and correct Medicare claims specific to Part A and Part B.

Region 5 RAC will be dedicated to review of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) and Home Health / Hospice

Programming note: Listen to healthcare attorney Knicole Emanuel’s RAC Report every Monday on Monitor Mondays at 10 Eastern.