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That has been our experience as counsel for providers in RAC appeals because RAC committees typically are made up of clinicians, coders, billers, patient financial services and revenue cycle personnel, compliance officers, and many others like them.


There are many strategies that can be employed to achieve successful results in RAC appeals, including the assertion of legal defenses. We suggest that providers who want to have a better chance at winning at later stages of appeal involve counsel experienced in RAC appeals early in the process.


Qualified counsel should be engaged early for two reasons. First, providers only can supplement the record for appeal through the second level of appeal. There usually are many ways in which a claim denial can be challenged. If you haven’t included additional information in the appellate record, you won’t have support for those positions later (note that we are not talking about supplementing the medical record, but rather the record for appeal – -these are two very different things.)


When you wait until the later stages to get counsel involved, you probably will have given up legal arguments that could have been successful earlier. Second, if counsel helps set up the template for appealing legal issues early on, you will be less reliant on counsel later in the process, because the stage already will be set.


When you get attorneys involved early in the RAC process, they can raise some compelling and often successful issues from the outset, including the following:


  • Constitutional and procedural arguments
  • Challenges to statistical sampling
  • Without-fault or waiver of liability arguments
  • Challenges to reviewer qualifications
  • Positions based on former ALJ decisions
  • Positions on reopening regulations; and
  • Challenges to applicable standards

Providers should develop these legal points with counsel representatives who have litigation experience with ALJ appeals.


As we’ve said before, we believe that many providers are missing the opportunity to win RAC and subsequent review-and-appeal processes on legal grounds.


With a more coordinated response and appeal effort, providers can be more effective in the long run. If a Medicare provider receives a claim denial or an overpayment finding as a result of a RAC review, the denial will be subject to the standard Medicare appeals process.


Accordingly, this is a good strategy for responding to any third-party government audit, because the appeal process will remain the same throughout. So no matter who is auditing you, get your attorneys involved early.


About the Authors


Frank E. Sheeder, Esq., has defended clients against civil and criminal fraud allegations brought by the government and other hostile third-party litigants – especially whistleblowers – for more than 20 years. He focuses on complex healthcare litigation and regulatory compliance. He has appeared before multiple federal and state courts and represents clients opposite a multitude of federal and state agencies, whistleblowers, and other plaintiffs.


Lindsey F. Bartula, Esq. counsels clients on compliance and regulatory matters, including Medicare/Medicaid issues, compliance programs, and fraud and abuse laws. She has experience defending health care providers in civil and criminal investigations of alleged violations of the Medicare anti-kickback law, the Stark Law, and the False Claims Act.


Contact the Authors





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