Federal COVID Mandates for Large Employers Loom as Recoupment Issues Linger in Courts

All employers with more than 100 employees will have to begin monitoring vaccination status next month, under the new regulations.

Starting Dec. 4, all employers with more than 100 employees (except those already covered under federal contractor and healthcare rules) must learn the vaccination status of all their employees. Those employees who are unvaccinated must provide a negative test result at least every seven days, and wear a face covering at work. The Occupational Safety and Health Administration (OSHA) published its emergency temporary standard (ETS) on this matter last week. Employers must comply with most provisions of the ETS by Dec. 4, and implement the testing requirements by Jan. 3, 2022.  

I am certain that this will face many legal challenges in the next few weeks, but I wanted to prepare you for contingencies. I anticipate that we will be receiving lots of questions about this over the next few days. 

Going to the topic of Recovery Audit Contractors (RACs), we need congressional action to protect providers from premature recoupment during the Medicare appeals process between levels 1 and 2. As we all know, appealing an alleged Medicare overpayment stays any premature and erroneous recoupment through levels 1 and 2. Level 3 is the administrative law judge (ALJ) level, and the first time you can present evidence and examine witnesses. In order to prevent recoupment between levels 2 and 3, providers must file injunctions enjoining the recoupment. The argument is that irreparable harm will occur by recouping, say, $7 million, and that the audit is faulty. Across the country, the courts are split as to whether to prevent premature recoupment. Until this new case, the 5th Circuit was on the provider’s side, saying you cannot recoup funds until you prove they are owed. There is a 90-percent overturn rate at the ALJ level.

In the newest case, Family Innovations underwent a scathing Unified Program Integrity Contractor (UPIC) audit. It was accused of owing over $7 million. The company provides home healthcare to Medicare patients in Texas. The accusation is that the clients were not “homebound,” which is false. The company’s legal team was successful at obtaining an injunction at the Superior Court level, but a couple weeks ago, the 5th Circuit overturned the lower court ruling and recoupment began.

The 5th Circuit took the opposite position in 2018 in Family Rehab., Inc. v. Azar. In that case, the Court went so far as to call the Medicare provider appeal process “the harrowing labyrinth of Medicare appeals.” That panel understood the sheer mess of an appeals process we have for providers, and that Medicare providers have a protected property interest in reimbursements for services rendered. The 5th Circuit itself is split on the issue of a property interest, and so too are the other circuit courts across the country. The 4th Circuit upholds the property interest. We either need a Supreme Court decision on the issue or congressional action. Right now, the issue is a ping-pong ball challenge.

Programming Note: Listen to Knicole Emanuel’s live RAC Report every Monday on Monitor Mondays, 10 Eastern.

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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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