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Connie A. Raffa J.D., LLM

RAC LAW EXPERT  / raclawexpert.com
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Upcoming Events for
Connie A. Raffa
April 2010

Upcoming Events:

April 8, 2010, Webinar
"Legal Aspects of Marketing:
Advantages and Consequences"
Ohio, Michigan and Indiana Hospice & Palliative Care and Home Care Organizations

www.ohpco.org ; www.mihospice.org ; www.ihpco.org


April 14 and 15, 2010, Webinars
"Home Health Compliance:
What You Need To Know"
Home Care Association of New York 

Rachel Hold-Weiss, RPA-C, JD



April 20, 2010, Dallas, TX
"Hospice and Nursing Home Partnership:
How to Get It Right!"
Health Care Compliance Association’s 14th Annual Compliance Institute

Co-Presenter: Donald H. Romano, Esq.


April 22 -23, 2010, Washington, DC
"Legal Aspects of Marketing: Advantages and Consequences," Co-Presenter: Rachel Hold-Weiss, RPA-C, JD and "Palliative Care Legal Issues"

National Hospice and Palliative Care Organization 25th Management and Leadership Conference 



May 6, 2010, South Portland, ME

"Getting Ready for Recovery Audit Contractors, MAC, MSPC, BCC, ZPIC, QIO, MIP - Prepare and Defend" and "Targeted Risk Areas and Compliance - Strategies In Home Care" 
Northern New England Home Care Conference - 32nd Annual Conference of Home Care and Hospice Alliance of Maine, the Home Care Association of New Hampshire, and the Vermont Assembly of Home Health Agencies  

www.homecarealliance.org ; www.homecarenh.org ; www.vnavt.com  



May 13-14, 2010, Albany, NY

"Hospice Physician, Nurse Practitioner, and Other Billing Issues," "Recovery Audit Contractors"  
Rachel Hold-Weiss, RPA-C, JD)


May 13-14, 2010, Albany, NY
"Legal Aspects of Marketing,"  

Hospice & Palliative Care Association of New York State 30th Annual Interdisciplinary Seminar and Meeting 



May 26, 2010, Webinar 

"Recovery Audit Contractors and Compliance Strategies" 

Ohio, Michigan and Indiana Hospice & Palliative Care and Home Care Organizations 

www.ohpco.org ; www.mihospice.org ; www.ihpco.org      


October 5, 2010, Dallas, TX

"The Hospice/Nursing Home Partnership in Caring for the Terminally Ill" 

National Association of Home Care and Hospice - 29th Annual Meeting & Exposition 

Rachel Hold-Weiss, RPA-C, JD



November 9, 2010, Columbus, OH   

"Palliative Care Partnerships"
Ohio Hospice & Palliative Care Organization Annual Conference 


Reference Articles

Connie A Raffa

Contact Connie @
Rac Law Appeals for
information regarding any articles
featured in this section.

  Recovery Audit Contractors (RAC )
Everything you need to know
( Featured on this page )

  Update on Medicare Claims
Appeal Process
( Provided upon request )

  What’s New in Medicare Claims Appeals Process? Changes Made by
BIPA 2002 & MMA 2003
( Provided upon request )

  New Notice Requirements When Medicare Coverage
Ends Lead to Expedited Appeal Rights
( Provided upon request )

  Today’s OIG Focus on Observation Beds - ShouldYou Be Concerned?
( Provided upon request )

  Compliance: It Matters!
( Provided upon request )

  Discharge Planning Issues in Hospitals: Steering to Preferred Certified Home Health Agencies and the Risks of Providing Free Discharge Planning Services to Hospitals
( Provided upon request )

  Home Health Agencies Risk Areas
( Provided upon request )

  NY Attorney General Medicare Maximization Audits and Recoupments
( Provided upon request )

  New Enforcement Powers and Incentives Aimed at Medicaid Fraud Enacted By the Deficit Reduction Act
( Provided upon request )

  Legal Issues to Consider When Creating a Health Care Business Model
( Provided upon request )

  New Compliance Program Regulations Proposed by the New York Office of Medicaid Inspector General
( Provided upon request )

  The New York Whistleblower Protection Law: What You Need to Know
( Provided upon request )

  The Impact Of The Sentencing Guidelines On The Healthcare Field and Beyond
( Provided upon request )

  Proposed Sentencing Guidelines Impose New Standards for Compliance and Ethics Programs
( Provided upon request )

  Rules are Rules / Wall Street Journal
( Provided upon request )

  Some Thoughts About Compliance Programs For Hospices
( Provided upon request )

  The New Office of The Medicaid Inspector General: What Are They Up To?
( Provided upon request )

  Red Flag Rules; Obligations of the Health Care Providers
( Provided upon request )

Other Helpful Links

As of April 2010,

The Historic Health Care Reform Bill:
A Summary Of Key Provisions Affecting Health Care Providers

                                                               Read details > click here

Featured Reference Article / October 2009

Recovery Audit Contractors (RAC): The Essentials

Published: 8/12/2009

1. Tax Relief and Health Care Act of 2006, § 302, authorized full implementation by 2010 of Medicare post-payment audits of fee for service Part A and B providers by four Recovery Audit Contractors (RACs). The contracts have been awarded.

2. RACs audit a percentage of claims based on volume, retroactive three fiscal years from the date the claim was paid, but not for any claims prior to October 1, 2007.

3. The number of records that can be audited based on provider type are limited to:

- Home Health, Outpatient Hospital and other Part A billers: 1 percent of average monthly Medicare services (maximum of 200) per 45-day period, per NPI.

- Hospice, Inpatient Hospital, Skilled Nursing Facility, or Inpatient Rehabilitation Facility: 10 per cent of the average monthly paid Medicare claims (maximum of 200) per 45-day period, per NPI.

- Physician: depends on the size of the group, partnership or solo practice.

- DME, Lab and other Part B billers: 1 per cent of average monthly paid Medicare services per 45-day period, per NPI.

RACs will not review records that are the basis of a voluntary disclosure accepted by Medicare. Eventually, medical records on CD or DVD will be accepted.


- RACs can utilize an Automated Review, which is a demand for repayment without reviewing your medical records referred to as “data mining.”

- The overpayment determination is made without contacting the provider for any information on the claims denied.

- There is no review of medical record because:

a. There is a clear policy that is the basis for the denial. “Clear policy” means a statute, regulation, National Coverage Determinations (NCD), Local Coverage Determinations (LCD) or CMS manual, that specifies the circumstances under which payment for a service will always be denied;

b. The denial is based on a medically unbelievable service, such as removing two gall bladders from the same patient; or

c. Failure to respond to a request for medical records within the 45 day deadline.


- RACs will conduct a Complex Review of requested medical records if there is a high probability that the service is not covered.

- The RAC review team, which consists of RNs, certified coders and a Medical Director, makes coding and medical necessity determinations based on NCD, LCD and CMS manuals

6. RACs are paid a contingency fee of 9 per cent to 12.5 per cent of the amounts recouped or underpaid. RACs can use statistical sampling and extrapolate findings to calculate the overpayment. If the provider wins at any level of appeal, the RAC cannot keep the contingency fee it has been paid, and interest may be returned under certain circumstances.

7. Medicare Administrator Contractors (MACs) will recoup by offset unless provider pays by check or commences a valid appeal. Recoupment is stayed during first two levels of appeal, redetermination and reconsideration; however interest continues to accrue.

8. CMS approves RAC audit issues and they are posted on RAC Web sites. RAC validator contractor, Provider Resources, Inc. of Erie, PA, works with CMS to approve new audit issues.


a. You can appeal the denied claims in a RAC overpayment determination within 15 days of a RAC demand letter by submitting a rebuttal, and/or request a meeting, i.e., the discussion period. This is not part of the formal appeal process.

b. The regular appeal process applies with deadlines specified by regulations. Note: 42 C.F.R. § 405.942(a)(1), § 405.962(a)(1), and § 405.1102(a)(2) state that the date of receipt of a redetermination, a reconsideration, or an Administrative Law Judge (ALJ) decision, is presumed to be 5 days after the date of the notice, here the demand letter, unless there is evidence to the contrary.

c. The date on the demand letter starts the 30 day period for the MAC to send you the recoupment letter, and the 15 day period for you to request a discussion meeting with the RAC. The discussion period can be longer than 15 days, if the RAC agrees.

d. A provider has 120 days from the date of the demand letter to file a request for redetermination. The MACs, Fiscal Intermediaries (FI) and Carriers, hereinafter referred to collectively as MAC, can begin recoupment on the 41st day after the date of the demand letter, unless the MAC receives a request for redetermination within 30 days from the date of the demand letter (not 30 days from the date of receipt). Note: If the additional 5 days for mailing applies, these timeframes may be longer.

e. If the redetermination decision is not favorable, a provider has 180 days to file a request for reconsideration with the Qualified Independent Contractor (QIC). Note: This is the last stage to submit additional evidence absent a showing of good cause.

f. The MAC can begin recoupment on the 61st day after the unfavorable redetermination notice, unless the provider files a request for reconsideration within 60 days.

g. If the reconsideration decision is not favorable, a provider has 60 days to file an appeal to the Office of Medicare Hearings and Appeals, ALJ level. During this level of appeal, and any following levels of appeal (Medicare Appeals Council and Federal District Court), CMS will recoup the overpayment.

h. The RAC or CMS may decide to have an active role in the appeal process as a “party” or “participant.” Participation includes filing position papers or providing testimony, but not calling witnesses or cross examination. CMS or the RAC may not be called as a witness. See 42 C.F.R. § 405.1010. As a “party” CMS or the RAC may file position papers, provide testimony, call witnesses and cross examine witnesses. See 42 § 405.1012


- Conduct an internal compliance audit of applicable risk areas, i.e. OIG, CERT reports, under the direction of a health care attorney and attorney client privilege.

- Correct your billing issues before RAC does an audit and demands a recoupment.

- www.cms.hhs.gov/rac; www.oig.hhs.gov/reports.asp; www.cms.hhs.gov/cert; www.raclawexpert.com; www.raclawappeals.com; AppealsprocessflowchartAB.pdf; www.cms.hhs.gov/MLNMattersArticles/downloads/MM6183.pdf;

11. Other RAC Contractors:

- Region A – Diversified Collection Services, Inc. of Livermore, California (subcontracting some audits to PRG-Shultz, Inc.) in Massachusetts, Maine, New Hampshire, New York, Rhode Island, Vermont and soon in Connecticut, District of Columbia, Delaware, Maryland, New Jersey and Pennsylvania.

- Region B – CGI Technologies and Solutions, Inc. of Fairfax, Virginia (subcontracting some audits to PRG-Shultz, Inc.) in Indiana, Michigan, Minnesota and soon in Illinois, Kentucky, Ohio and Wisconsin.

- Region C – Connolly Consulting Associates, Inc. of Wilton, Connecticut (subcontracting some audits to Viant Payment Systems, Inc.) in Colorado, Florida, New Mexico, South Carolina, Oklahoma, Tennessee, Texas, Virginia, and West Virginia.

- Region D – HealthDataInsights, Inc. of Las Vegas, Nevada (subcontracting some audits to PRG-Shultz, Inc.) in Arizona, Montana, North Dakota, South Dakota, Utah, Wyoming and soon in Arkansas, California, Hawaii, Idaho, Iowa, Kansas, Montana, Nebraska, Nevada, Oregon and Washington..

For more information, contact the authors listed below or the
Arent Fox attorney with whom you usually work.

Connie A. Raffa

Rachel Hold-Weiss


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      Connie A. Raffa J.D., LLM

RAC LAW EXPERT  / raclawexpert.com Connie A. Raffa J.D., LLM