Beware the Ides of March – And Medicare Provider Audits

“Beware the Ides of March,” the soothsayer in Shakespeare’s “Julius Caesar” warned, foretelling the titular character’s doom.

The Ides may now be behind us, but there are plenty of audits to come – and they’re no less ominous.

As such, today I am going to cover the state of healthcare audits, as things currently stand. When I say Medicare and Medicaid audits, I mean Recovery Audit Contractors (RACs), Medicare Administrative Contractors (MACs), Zone Program Integrity Contractors (ZPICs), Unified Program Integrity Contractors (UPICs), Comprehensive Error Rate Testing (CERT), Targeted Probe-and-Educate (TPE) audits, and U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) investigations of credible allegations of fraud.

Without question, the new Biden Administration will be concentrating even more on fraud, waste, and abuse germane to Medicare and Medicaid. This means that auditing companies such as Public Consulting Group (PCG) and National Government Services (NGS) will be busy trying to line their pockets with Medicare dollars. As for the Ides, it is especially troubling coming in March, especially if you are Julius Caesar. “Et tu, Brute?”

One of the government’s most powerful tools is its zealous use of 42 CFR 455.23, which states that “the State Medicaid agency must suspend all Medicaid payments to a provider after the agency determines there is a credible allegation of fraud for which an investigation is pending under the Medicaid program against an individual or entity, unless the agency has good cause to not suspend payments, or to suspend payment only in part” (bold emphasis added). That word – “must” – was revised from “may” in 2011, marking part of the Patient Protection and Affordable Care Act (PPACA).

A “credible allegation” is defined as an indicia of reliability, which is a low bar. Very low.

Remember back in 2013, when Ed Roche and I were reporting on the New Mexico behavioral healthcare cluster? To remind you, at the time, New Mexico accused 15 behavioral health providers (constituting 87.5 percent of all such providers in the state) of “credible allegations” of fraud after the assistant attorney general, Larry Heyeck, had just published a legal article regarding “credible allegations of fraud.” Unsurprisingly, the suicide rate and substance abuse rate skyrocketed. There was even a documentary, “The Shake-Up,” produced about the catastrophic events in New Mexico set off by the findings of PCG.

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This is another example of a PCG allegation of overpayment of over $700,000, which was reduced to $336.84.

I was the lawyer for the three largest entities and litigated four administrative appeals. If you recall, for Teambuilders, PCG claimed it owed more than $12 million. After litigation, an administrative law judge (ALJ) decided that Teambuilders owed $836.35. Hilariously, we appealed. While at the time, PCG’s accusations put the company out of business, it has reopened its doors finally – eight years later. This is how devastating a regulatory audit can be. But congratulations, Teambuilders, for reopening.

Federal law mandates that during the appeal of a Medicare audit at the first two levels, the redetermination and reconsideration, no recoupment can occur. However, after the second level, when you appeal to the ALJ (the third level), the government can and will recoup, unless you present before a judge and obtain an injunction.

Always expect bumps along the road. I have two chiropractor clients in Indiana, both of which received notices of alleged overpayments. They are running a parallel appeal. Whatever we do for one, we have to do for the other. You would think that their attorneys’ fees would be similar. But for one company, NGS has preemptively tried to recoup three times. We have had to contact NGS’s attorney multiple times to stop the withholds. It’s a computer glitch, supposedly. Or maybe it’s the Ides of March!

Programming Note: Listen to Knicole Emanuel’s live RAC report every Monday during Monitor Mondays, 10 a.m. Eastern.


Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards. She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining. Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Nelson Mullins and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

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