New court decision on recoupments

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Friday, February 15, 2019

WASHINGTON – Healthcare attorney Elizabeth Hogue has been watching closely as numerous courts go back and forth on whether or not CMS should be stopped from recouping overpayments until after the ALJ level, but she thinks a recent court’s decision is “really serious.”

Here’s what Hogue had to say about a Florida district court’s decision to deny a home health agency’s request for a preliminary injunction to stop recoupments before an ALJ hearing on the grounds that providers do not have “property interests” in Medicare payments (Alpha Home Health Solutions, LLC vs. Secretary of the U.S. Department of Health and Human Services and Administrator for the Centers for Medicare and Medicaid Services).

HME News: You’ve now written about a handful of decisions on this issue. Why are you following it so closely?

Elizabeth Hogue: Because it’s so important for all providers, even if they don’t currently have an issue related to recoupments or ALJ hearings. Sooner or later, this issue will come home to roost for everyone.

HME: Why is this latest decision such a big deal?

Hogue: The court talked about how they don’t think providers have property interests in their participation in the Medicare program and in the monies they’ve already received from Medicare. That’s a really serious issue, because if providers have no property interests, there can be no due process violations, and then providers have no rights at all.

HME: Had previous courts addressed this issue of property interests?

Hogue: A number of courts had decided that providers do have property interests and they denied the request to stop recoupments because of lack of “irreparable injury.” But to deny on the basis of property rights—that gets me angry.

HME: You argue that this court’s decision must be appealed.

Hogue: If this decision gets adopted by a number of other courts, then we’d be back to square one, with no opportunities to stop the recoupments before ALJ hearings. The problem is, the provider in this particular case can’t afford to appeal. So we’re looking for other providers who may be willing to join the case. In all honesty, we’re looking for money.

HME: Have you ever followed a string of decisions this closely?

Hogue: I can’t say that I have. No. 1, this is a wonderful opportunity for providers to establish some case law that will be so helpful and important, in terms of recoupments. The deck is stacked, so anything we can do to make it more of an even playing field, I’m in favor of.

HME: And No. 2?

Hogue: I have seen with our clients, in numerous instances, where they’ve been driven out of business because of these recoupments. That stakes are so high, in terms of the existence of the provider, this is often considered life or death.

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