The Art of Defending Against Contractor Audits

To poke holes in Medicare audits, you need to know the rules.

I’d like to write today about the sheer absurdity of how these Recovery Audit Contractor (RAC), Zone Program Integrity Contractor (ZPIC), Medicare Administrative Contractor (MAC), and other types of audits are being held against healthcare providers. When an auditor requests documents from a provider and opines that the provider owes a million dollars in alleged underpayments, I would expect that the auditor would show up before an independent tribunal to defend its findings. However, for so many of these Medicare provider appeals, the auditor doesn’t.

In my opinion, if the entity claiming that you owe money back to the government does not appear at the hearing, the provider should automatically prevail. A basic legal concept is that the accused should be able to confront his or her accuser.

I had depositions the last two weeks for a case that involved an opiate treatment program. The two main accusers were Optum and ID Medicaid. When Optum was deposed, they testified that Optum did not conduct the audit of the facility. When ID Medicaid was deposed, it contended that Optum did conduct the audit at issue.

When not one person can vouch for the veracity of an audit, it is ludicrous to force the provider to pay back anything. Auditors cannot hide behind smoke and mirrors. Auditors need to testify to the veracity of their audits.

To poke holes in Medicare audits, you need to know the rules. You wouldn’t play chess without knowing the rules. Various auditors have disparate lookback periods, which is the time frame the auditor is allowed to go back and review a claim. For example, RACs may only look back three years, whereas ZPICs have no specific lookback period (although I would argue that the older the claim, the less likely it is to be recouped).

When appealing the outcome of a MAC or RAC audit, it is necessary for providers to have a specific reason for challenging the auditors’ determinations. Simply being dissatisfied or having generalized complaints about the process is not enough. Some examples of potential grounds for challenging a MAC or RAC determination on appeal include: 

• Application, if inapplicable Medicare billing rules were used; 
• Misinterpretation of applicable Medicare billing rules; 
• Reliance on unsound auditing methodologies;
• Failure to seek an expert opinion; 
• Ignoring relevant information disclosed by the provider; and 
• Exceeding the MAC’s or RAC’s scope of authority. 

It is imperative that you arm yourself in defending a Medicare audit, but if the auditor fails to appear at any stage in litigation, then you should call foul and win on a technicality.

Programming Note: Listen to Knicole Emanuel’s live RAC Report every Monday on Monitor Monday, 10 Eastern.