Where the burden lies could make a difference when it comes to the RACs.
In a legal lawsuit, one party is initially presumed to be correct and gets the benefit of the doubt, while the other side bears the burden of proof. When a party bearing the burden of proof meets its burden, it switches to the other side.
Does it matter which state you live, reside, or do business in when it comes to extrapolated overpayments by Recovery Audit Contractors (RACs)? The answer is yes.
Why do I think this is an important topic? Two cases, one in Kentucky and one in Mississippi, were initiated recently, and each applied the burden exactly opposite from the other. If you reside in Kentucky and you are hit with an extrapolated Medicare or Medicaid overpayment, the burden is on Kentucky’s single state agency (or the contracted company hired to perform audits) to show that the extrapolation is valid. However, in Mississippi, the burden is on the healthcare provider.
Where does the burden lie in your state? It’s important to know because the outcome of these cases shifts to whoever bears the burden. In Kentucky, where the burden rested on the state, the provider won. But in Mississippi, where the burden laid on the provider, the provider lost.
The Kentucky case, from November 2018, found that the state acted arbitrarily and outside the scope of its authority by using uncodified methods of extrapolation when addressing alleged overpayments, applied the incorrect rule of law when determining the proper role of SCR §3.130(3.4), and rendered a decision in a final order that was not supported by substantial evidence in the record. The provider successfully got the court to throw out the extrapolation.
The court held that extrapolation methods, approved by statute for use to identify unacceptable medical billing practices and to refer appropriate cases to the Medicaid Fraud and Abuse Control Unit or the United States Attorney’s Office, were not appropriate for use in audits conducted by third-party contractors hired by the state to determine exact amounts deemed to be overpaid to medical providers.
Then we have Genesis Hospice Care, LLC v. Miss. Division of Medicaid, decided April 18, 2019.
The Medicaid provider appealed an alleged overpayment of $1,941,285 for hospice care allegedly provided to terminally ill patients that were not medically necessary.
The court held that the state agency could use statistical sampling as part of an audit to determine how much the Division overpaid the Medicaid provider for unsubstantiated hospice claims; the 75-claim audit still required countless man-hours to copy records, conduct an initial review, hire a consultant for a second review, send the records to the peer-review panel for a third review, and then make a demand for repayment and allow for an administrative appeal – and in the hearing officer’s view, to individually audit all 808 claims would have been impossible.
The difference between Kentucky and Mississippi – the burden. When the burden lay on the provider, the state won. When the burden lay on the state, the provider won.
Programming Note:
Listen to Knicole Emanuel every Monday on Monitor Monday, 10-10:30 a.m. EST.
I am having a disagreement with the Centers for Medicare & Medicaid Services (CMS) that is worth discussing. As I have been teaching for the
The 30th Annual Compliance Institute for the Health Care Compliance Association (HCCA) is scheduled to take place in Orlando next week. If you are there,
Please log in to your account to comment on this article.
Breast biopsy procedures may be clinically straightforward but accurately translating them into compliant billing can be anything but. In this focused webcast, Shawn Blackburn, CPC, CPMA, CIC, CRC, CCS-P breaks down how imaging guidance, lesion count, laterality, and payer expectations all impact how these procedures should be reported. Through clear explanations and real-world scenarios, you’ll gain practical insight into aligning clinical workflows with billing requirements, avoiding common pitfalls, and ensuring your documentation supports accurate reimbursement and compliance.
Gain clarity and confidence in OB‑GYN coding with this expert‑led webcast featuring Sherri L. Clayton, RHIT, CSS. You’ll learn how to apply global maternity package rules accurately, select the right CPT codes for procedures and visits, and identify documentation gaps that lead to denials. With practical guidance and real examples, this session helps you strengthen compliance, reduce audit risk, and ensure accurate reimbursement for women’s health services.
Uncover essential coding insights with nationally recognized coding authority Kay Piper, RHIA, CDIP, CCS. Through ICD10monitor’s interactive, on‑demand webcast series, Kay walks you through the AHA’s 2026 ICD‑10‑CM/PCS Quarterly Coding Clinics, translating each update into practical, easy‑to‑apply guidance designed to sharpen precision, ensure compliance, and strengthen day‑to‑day decision‑making. Available shortly after each official release.
Uncover critical guidance on the ICD-10-CM/PCS code updates. Kay Piper reviews and explains ICD-10-CM/PCS coding guidelines in the AHA’s fourth quarter 2026 ICD-10-CM/PCS Coding Clinic in an easy to access on-demand webcast.
Traditional utilization management models can no longer keep pace with regulatory shifts, payer scrutiny, and operational pressures. In this webcast, Tiffany Ferguson, LMSW, CMAC, ACM, ACPA-C, introduces an Adaptive Model strategy that modernizes UM through role specialization, technology-driven workflows, and proactive, team-based processes. Attendees will learn how to restructure programs to improve efficiency, strengthen clinical collaboration, and enhance financial performance in a rapidly changing healthcare environment.
Federal auditors are intensifying their focus on inpatient psychiatric facilities, using advanced data analytics to spotlight outliers and pursue high‑dollar repayments. In this high‑impact webcast, Michael Calahan, PA, MBA, Compliance Officer and V.P., Hospital & Physician Compliance, breaks down what regulators are really targeting in IPF-PPS admissions, documentation, treatment and discharge planning. Attendees will learn practical steps to tighten processes, avoid common audit triggers and protect reimbursement and reduce the risk of multimillion-dollar repayment demands.
In this timely session, Stacey Shillito, CDIP, CPMA, CCS, CCS-P, CPEDC, COPC, breaks down the complexities of Medical Decision Making (MDM) documentation so providers can confidently capture the true complexity of their care. Attendees will learn practical, efficient strategies to ensure documentation aligns with current E/M guidelines, supports accurate coding, and reduces audit risk, all without adding to charting time.
Join Ronald Hirsch, MD, FACP, CHCQM for The PEPPER Returns – Risk and Opportunity at Your Fingertips, a practical webcast that demystifies the PEPPER and shows you how to turn complex claims data into actionable insights. Dr. Hirsch will explain how to interpret key measures, identify compliance risks, uncover missed revenue opportunities, and understand new updates in the PEPPER, all to help your organization stay ahead of audits and use this powerful data proactively.
Celebrate Lab Week with MedLearn! Sign up to win one year of our Laboratory All Access Pass! Click here to learn more →
Have a Medicare regulation question you’d love Dr. Hirsch to answer? Now is your chance! CLICK HERE to learn more→
Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →
CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 1 with code CYBER25
CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 2 with code CYBER24
