Policy Forum Makes Big Impact on Raising Congressional Concerns over RAC Audits

AOPA Executive Director, Tom Fise, brought the Board of Directors up to date in a recent email on how AOPA members attending the Policy Forum took the lead in urging their legislators in the House of Representatives to sign-on to the letter Rep. Tammy Duckworth and Rep Brett Guthrie will send to HHS Secretary Sebelius.  Subsequently, all AOPA members were urged to contact their legislators and to request they sign-on to the Sebelius letter.

Click here to read the letter to Secretary Sebelius.


“With March drawing to a close, it makes sense to provide an update on AOPA’s and related efforts on the RAC/pre-payment audit issues.  In terms of this issue, it was very fortuitous that we decided to hold the Policy Forum earlier than usual this year, as a great deal has happened since we saw most of you at the AOPA Policy Forum, March 12-13.

“Let me start with background on RAC issues in hospitals.  Many of you are probably familiar with the fact that a few months back the American Hospital Association sued CMS challenging its RAC audit policies.  The specific dispute is a bit different from ours but related.  RAC auditors have roundly challenged claims involving patients who were admitted as inpatients and received certain procedures, claiming the admission was improper, clawing back the entire Medicare payment to the hospital with the assertion that the procedure could have been done on an outpatient basis.  Hospitals have massively appealed these audit results up the chain to the ALJ claiming that even if the auditor is correct regarding the admission decision, Medicare ought to at least allow the payment the hospital would have received if the patient had received the procedure on an outpatient basis at the hospital.

“I have been told that these appeals to ALJ have succeeded in securing partial payment in 90-95 percent of cases that have gone that far.  On March 13, CMS released its proposed regulations to implement such partial payment AND also issued a new administrative policy that they would start making the partial payment immediately, even before the conclusion of the rulemaking process for the new regulation, in any such case where an audit contested the full inpatient hospital tab (see email attached).  This is a very important precedent that was achieved after the AHA filed suit, and the AHA gave nothing in return for the CMS commitment to the new regulation and interim administrative policy that approved partial payment, i.e., AHA did not withdraw its suit against Medicare.

“You may also recall that on March 8, just before the Policy Forum, we had written four letters to CMS audit/DME MAC contractor chief George Mills, questioning several policies those contractors had implemented (click here to see letters).   I was not surprised to receive an email from George Mills, responding to two of the four letters (Letters one & two) we had delivered to him.  The AOPA letters/requests on the issues of K-level and the legitimacy of the prosthetist’s notes remain pending in front of George Mills, still awaiting action.

“There remain a good many items in motion, energized largely by the AOPA Policy Forum.   Reps. Duckworth and Guthrie circulated a “Dear Colleague” letter to all Members of the House, encouraging them to sign-on to the letter to Secretary Sebelius.  AOPA has mounted a strong outreach both to Policy Forum attendees and to all AOPA members, offering an easy pathway for them to contact their House Representative urging them to exercise the opportunity to Sign-on  to the letter.  Within the past 5 day AOPA members have sent letters to approximately 250 Congressional offices seeking endorsement of the Duckworth/Guthrie letter.  While many members of Congress are reluctant to ‘sign-on’ to such joint letters,  we are still hopeful of securing commitments from a good number of House members to sign-on in advance of the April 10 close-out date when the letter will be finalized and delivered by Duckworth and Guthrie, with as many signatures as can be garnered–so the heat is building at CMS

“The high level of activity on the RAC and pre-payment audit issue, especially since the Policy Forum seems to have prompted some confusion among CMS staffers.  For example, we’ve been informed by Hill staffers that CMS has been representing to Congressional staffers that AOPA is already working with CMS on their planned physician template rule making (we will work with them if and when they ask us to–and odds are they will ask–but as yet they haven’t).”

End of Fise Email