Obvious RAC Error? Move Fast and Rebut

If you receive a letter from a Medicare recovery audit contractor (RAC) regarding overpayment, don’t panic! You may think you only have two options: pay up or launch an appeal. There is another option, however, if you move fast (before a formal appeals process starts) and are certain the RAC is mistaken about the overpayments.

According to David M. Vaughn, JD, CPC, of Vaughn & Associates, LLC, “42 CFR 405.374 allows the provider at least 15 days for an informal rebuttal before the formal appeal process starts. The typical RAC letter will state that you have 15 days to informally respond prior to the time the RAC submits its results to the Medicare administrative contractor (MAC), who then issues the formal demand letter. So the first step in the process is to quickly figure out why the RAC is incorrect, and advise it within 15 days; and if you are correct, the RAC will correct the audit mistakes and reissue a revised letter to you and the MAC.”

Certified Professional Medical Auditor

Section 405.374 “Opportunity for rebuttal,” states:

(a) General rule. If prior notice of the suspension of payment, offset, or recoupment is given under § 405.372 or § 405.373, the Medicare contractor must give the provider or supplier an opportunity, before the suspension, offset, or recoupment takes effect, to submit any statement (to include any pertinent information) as to why it should not be put into effect on the date specified in the notice. Except as provided in paragraph (b) of this section, the provider or supplier has at least 15 days following the date of notification to submit the statement.
(b) Exception. The Medicare contractor may for cause:
(1) Impose a shorter period for rebuttal; or
(2) Extend the time within which the statement must be submitted.

Vaughn, who has defended several RAC audits, said, “All the ones I’ve defended did have the 15 day limit in their letter. I have used it successfully once, where the RAC made a mistake denying over $100,000 in services as ‘services not rendered’ when the real issue was that the incident-to rules weren’t followed, but the services should have been allowed in the name of the NP. They reversed that component of the audit before submitting the demand letter to the MAC. In that case, I actually called them and got an extension of the 15 days, and they granted it. I then submitted our position in writing, and they agreed.”

“RACs are fairly inaccurate—unlike the ZPICs [zone program integrity contractors], which are much more accurate in my experience—so I think the rebuttal process can be a good tool with the RACs, not ZPICs,” according to Vaughn.

Michael D. Miscoe, Esq., CPC, CASCC, CUC, CCPC, CPCO, CHCC, founding partner of Miscoe Health Law, LLC, said that in his experience, mostly with ZPICs, “I would generally use rebuttal ONLY when the client intended to pay, but there was concern about blind acceptance of the audit result leading to allegations of knowledge of the error down the road.” Miscoe’s bottom line is:


  • “Providers should weigh (with the advice of counsel) the expense vs. the benefits of attempting a rebuttal rather than a formal appeal. Engaging in this process is more likely to be successful in response to a RAC audit with obvious errors.
  • In cases where the provider chooses not to appeal when faced with a minimal refund demand (as in a probe audit), the rebuttal process is a mechanism for putting your objections to the audit findings on record. That way, mere payment cannot be construed later as agreement (and knowledge as in False Claims Act (FCA) context) with the audit result.”

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3 Responses to “Obvious RAC Error? Move Fast and Rebut”

  1. S. G. Smith says:

    This worked when Connolly (the RAC for SC) was sending the letters but now the MACs (or at least Palmetto GBA) are receiving the information from the RAC and sending out the formal demand letter. There isn’t that rebuttal period anymore since the RAC communicates directly with the MAC.

  2. Victor says:

    @ S.G. Smith, I experienced the same thing out here in Texas. No warning just a demand letter stating my 2 options, Pay or File an appeal. I am wondering if it is only our MAC Novitas that has taken that step or if anyone else has seen this change.

  3. Maryann Palmeter says:

    Excellent point about the dollars at issue not being the be all to end all when it comes to deciding whether to appeal a RAC overpayment demand. It is a shame though that providers who have skeleton crews as it is now due to declining reimbursement and increased costs of health care (in large part due to regulatory requirements) have to appeal a claim when the cost of doing so is greater than the dollars at issue simply so they will not be viewed as being in agreement with the overpayment.

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