In this episode, we welcome back Knicole Emanuel, Partner at Practus LLP, to share what you can do to help your chances of prevailing should you bring a claim to cease recoupment of an overpayment.
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Highlights of this episode include:
- Five stages of Medicare Appeal process
- How the process is flawed
- Fifth Circuit is split
- Bringing a claim to cease recoupment
- Suing on behalf of your Medicare beneficiaries
Mike Passanante: Hi, this is Mike Passanante and welcome back to the award-winning Hospital Finance podcast. Today I’m joined by Knicole Emanuel, an attorney at Practus LLP in Raleigh, North Carolina, where she concentrates on Medicare and Medicaid regulatory compliance litigation. Once again, we’re going to look at the Medicare appeals process, and Knicole will share her thoughts on the divide among the circuit courts as to the protections a provider deserves and what you can do to help your chances of prevailing should you bring a claim to cease recoupment of an overpayment. Knicole, welcome back to the show.
Knicole Emanuel: Thank you. Thanks for having me.
Mike: So just to set the context for our listeners who may not be as familiar with the Medicare appeals process, could you just walk through what those five stages look for– or look like to us?
Knicole: Absolutely. So you have to go through the hoops even though you won’t be successful at the beginning. So there are five levels. Number one, you do the redetermination, which is with basically the same provider– I’m sorry, the same auditor who said you had an issue. Then you go to reconsideration with a quit. They’re still not independent. So you’re going to lose the first two stages automatically because they’re rubber stamps. Between the second and the third, the third level is the administrative law judge, and that is where the success comes. There’s almost like an 80 or 90% success rate when you get to the independent tribunal. The problem is that between the second stage and the third stage, the government can start recouping funds. So for example, if you have a provider or a hospital or a long-term care facility who is accused of owing five million dollars because it’s extrapolated, between the second level and the third level, they either have to pay the money, getting in a federal injunction to stop the payment, or come up with some ERS, which is an extended repayment solution. Those are your three options. But that’s why there’s such an issue between the second and third level. If you disagree with the administrative law judge, which doesn’t happen that often, you could escalate it to the Departmental Appeals Board review, and then after that, you would go to federal court for judicial review. It is a long process for Medicare provider appeals, while Medicaid provider appeals are not nearly as esoteric.
Mike: And Knicole, you live this every day. Why do you think this process is flawed?
Knicole: It’s flawed because there needs to be legislation. So the whole concept of the Constitution and due process is fundamental in our country, and to have the monies recouped before you get in front of an independent tribunal, I find offensive to due process. And many judges agree with me and then other judges don’t.
Mike: Right. And so let’s talk about that a little bit more because a provider should have some level of protections. And as you intimated, the circuit courts are somewhat split around the protections that a provider deserves. Why don’t you to talk to us about your experience in that regard?
Knicole: Not only are the circuit courts completely 50%, 50% split on whether there’s a protected property interest in the reimbursements for services rendered that were medically necessary, there are splits within the circuits. For example, the Fifth Circuit is split. They’ve gone one way. They’ve gone another way. I mean, it is absolutely amazing that these judges are one way or the other. What I have found is that if the judge understands Medicare regulations, then they understand that the contract that Medicare and Medicaid providers have, they have a termination without cause clause. That’s hard to say. They have a termination without cause clause, and half of the judges are saying, “Yeah, that’s completely legal.” Whereas when the judges look into the regulations more, the regulations provide limitations to terminations. They can’t get terminated for somebody not liking the way you dress. That can’t happen. So but yes, right now the circuit courts are split.
Mike: So if a provider is going to bring a claim to cease recoupment, for instance, what should they do if they’re thinking about doing something like that?
Knicole: So your question, It would not be the cease recoupment. It would be to stay recoupment. You would want to bring the case before recoupment starts because you know it’s going to once you get the second level rubber stamp denial. So as soon as you get that rubber stamp denial and you know that you’re going to need to do an injunction, then you go to federal court. You go to Federal District Court. And hopefully you’re in a jurisdiction, because you have to look at your jurisdiction as well, and make sure that you’re in a jurisdiction that acknowledges that there is a property interest in Medicare reimbursements for services rendered. There’s a difference between Medicare reimbursements for services not rendered. So you got to make sure that you have your documentation in line, to make sure that you can prove that you rendered the services, that they were medically necessary, and then the property right kicks in. It would be like somebody challenging me with my hours that I do for being a lawyer.
Mike: And on your blog, you also talk about suing on behalf of your Medicare beneficiaries property rights to freedom of choice of provider and access to care. So that should be something that you include in that.
Knicole: That is exactly correct. When I did– I had an injunction in Indiana called Bater V. Wiener, I think. And we included the Medicaid beneficiaries as plaintiffs. And the judge upheld that the Medicaid beneficiaries or Medicare beneficiaries, whichever it is, had even a stronger right than a provider. So if you include those arguments, you have a higher chance of winning. I actually think that a lot of the– the 50% courts that are not holding there’s a property interest, nobody has argued the beneficiary rights before them. And I think that’s a hook.
Mike: Very interesting. Well, this space always continues to evolve and always seems to amaze us, so love having you back on the show to give us the latest on that. Knicole, if someone wanted to find out more about you or your practice, where can they go?
Knicole: You can go to my blog, medicaidlawnc.com. They could go to RAC Monitor, where I am a national podcast regular every Monday, or my law firms website, Practus, P-R-A-C-T-U-S.
Mike: Fantastic. Knicole Emanuel, thanks for coming back on the show. We appreciate it.
Knicole: Always enjoy it.