Timing is critical in challenging a RAC overpayment determination. While a provider must act within the allotted appeal timeframes, a delicate balance must be maintained between acting quickly to preserve appeal rights and avoid recoupment triggers and acting cautiously to ensure all documentation is gathered and submitted for each stage of appeal. The receipt of the overpayment demand letter triggers the start of the timeframes for appeal.
The Five Steps of the RAC Appeals Process:
The first level in the appeals process is redetermination. A request for redetermination must be filed in writing within 120 calendar days of receiving notice of initial determination. However, in order to prevent recoupment of the alleged overpayment against the provider's current Medicare payments, the request for redetermination must be filed within 30 days of the date of the demand letter. Providers must be aware of the risk involved in delaying payment, though. If a provider does not prevail in the appeals process, the amount due to CMS could include interest on the total recoupment amount.
While this is the first level of the appeals process, the request for redetermination should be written with the entire appeals process in mind. The request for redetermination will be analyzed at every level of appeal to follow and should be as comprehensive as possible to encompass all of the grounds on which the provider contends the determination is incorrect.
The second level in the appeals process is reconsideration conducted by a Qualified Independent Contractor ("QIC"). This second level of appeal must be filed within 180 calendar days of receiving notice of the redetermination decision. In order to prevent recoupment of alleged overpayment through offsetting of current funds due, the request for reconsideration must be filed within 60 days of the date of the redetermination decision.
Reconsideration is based upon a review of the findings and evidence submitted at the initial determination and redetermination levels. At this stage of the appellate process, providers can submit additional evidence and/or missing documentation in support of the appeal. In fact, it is crucial that all evidence be submitted at the reconsideration phase. Failure to submit all evidence prior to the issuance of the reconsideration decision will prevent the future consideration of that evidence absent a showing of good cause.
The QIC must notify all parties of the reconsideration decision within 60 days of the request. (If additional evidence has been submitted, the QIC's deadline can be extended.) Once the QIC releases the reconsideration decision, providers cannot stop the withholding of current payments due and CMS may begin recoupment of the alleged overpayment.
3. Administrative Law Judge Hearing
The third level of appeal is an Administrative Law Judge ("ALJ") hearing. A written request for an ALJ hearing must be filed within 60 days of receipt of the QIC's reconsideration decision. Unlike the first two levels of appeal, this request must meet an amount in controversy requirement.
ALJ hearings may be conducted in person, through video conference, or by telephone. At the ALJ hearing, parties are given the opportunity to present evidence in the form of documents and witness testimony. Witnesses can include internal clinicians and external experts. After reviewing all of the evidence and legal arguments presented in the hearing record, the ALJ must make a decision within 90 days from the date of receiving the request for hearing. (This time period can be extended or waived by the parties.)
4. Medicare Appeals Council
The fourth level of appeal is the Medicare Appeals Council ("MAC") review. A written request for MAC review must be filed within 60 days following receipt of the ALJ's decision and must meet an amount in controversy requirement.
A provider requesting MAC review must identify the parts of the ALJ determination with which it disagrees and explain the specific reasons for challenging these portions of the decision. An appeal to the MAC does not involve a hearing. Instead, the MAC gives the parties the opportunity to file written submissions. The MAC may also request that CMS or its contractor file a brief. If a particular case raises an important and/or new question of law, policy, or fact that cannot be decided based upon the written submissions alone, the MAC may grant a request for oral argument.
The MAC must issue a final determination or remand to the ALJ within 90 days of receiving the request for review of the ALJ determination, unless this deadline is extended due to the filing of a written brief. If the MAC determines that additional evidence is needed or that additional action by the ALJ is warranted, the MAC can remand the case back to the ALJ for further proceedings. Once the MAC releases its final decision, that decision binds all parties unless the decision is modified by a Federal District Court. If the MAC does not issue a decision within the required time frame, the provider may request that the case be accelerated to the Federal District Court.
5. Judicial Review in Federal District Court
The final step in the appeals process is review in Federal District Court. An appeal to Federal District Court must be filed within 60 days from the receipt of the MAC's decision, and must meet an amount in controversy requirement.
Jennifer Hoover Clark is an associate in Balch & Bingham, LLP's Health Care Law Practice Group.