Now that the RAC audits are in full swing, providers may be wrestling to understand the new discussion period and the implications for choosing to exercise this new option and when they should actually consider initiating a discussion period. 

What is the discussion period?

CMS called it the "rebuttal period" in the demonstration, but in the permanent program it is being called the "discussion period." During this informal and voluntary phase that is not a prerequisite to the appeal process, you can identify your grounds for a dispute ("I think you're wrong, and I have more information to support that") and dispute alleged overpayments. In an open-door forum call, CMS stated that you literally may pick up the phone with your RAC auditor and initiate the discussion period, but also suggested that you send a follow-up letter with supporting documentation.  Check with your own RAC auditor to see what its requirements are in documenting the discussion period; at the end of the article we point out some differences in the RAC Web sites and how they handle the discussion period. At least one of the auditors (DCS) has a form letter that needs to be filled out and submitted to initiate a discussion period.

What are the time frames for the discussion?

In September 2009, CMS clarified in a posted "Frequently Asked Question" about when exactly the "discussion period" occurs, which had been a source of much confusion for providers because it is not a part of the Medicare appeals process or the demonstration project.

CMS explains that the discussion period begins when the provider receives the notification of RAC review results (for complex reviews) and when the provider receives the demand letter for automated reviews. CMS also explains that the discussion period lasts until the issue is resolved or when the recoupment is complete.  As CMS also points out, however, the discussion period does not extend the provider's appeal timeframes. CMS further clarifies that the discussion period normally requires written notification to the RAC.

Although the discussion period may continue beyond the issuance of a demand letter, providers that choose to enter into a discussion with a RAC need to be careful not to put all their eggs in one basket for the discussion because the clock starts ticking for submitting the first level appeal to the Medicare Administrative Contractor (MAC) as of the date of the demand letter.

The discussion period has two different initiation times, depending on whether it is for an automated or complex review. With an automated review, the discussion period starts with the receipt of the demand letter from the RAC.  For a complex review, however, the discussion period begins when the provider receives the review results letter that arrives before the demand letter, actually giving the provider additional time to discuss the denial with the RAC. The discussion period ends upon recoupment of the money (i.e., Day 41) regardless of the type of review.

"The determination process for the RAC has not changed," according to Connie Leonard, director of the Division of Recovery Audit Contracting for CMS/OFM. "There has been a lot of confusion surrounding the discussion period and we are attempting to provide clarification to providers. The term, "review results" is often used now in place of "determination," as "review results" just are simpler to understand. It is still a determination of the review (an underpayment, overpayment or no finding)."