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The prepayment review is the equivalency of the American legal tradition that holds “you’re guilty until proven innocent.”  

It’s hard enough to be one of the providers to accept Medicare and Medicaid. The regulatory oversight is burdensome. You are always getting metaphorically yelled at for upcoding or bundling.

One of the absolutely most draconian penalties against a Medicare or Medicaid provider is prepayment review.

Prepayment review is exactly as it sounds. Before you receive payment – for services rendered – an auditor reviews your claims to determine whether you should be reimbursed. Prepayment review is the epitome of “You’re guilty until proven innocent.” It flies in the face of American due process. However, no one has legally fought its constitutionality. Yet many providers/companies have been put out of business by it.

Generally, to get off prepayment review, you have to achieve a 75 or 80 percent success rate for three consecutive months. It doesn’t sound hard until your auditors – or graders – fail to do their job correctly and fail you erroneously.

Usually, when a provider is placed on prepayment review, I say, “Well, you cannot appeal being placed on prepayment review, but we can get a preliminary injunction to stay the withholding of reimbursements during the process.” It tends to work.

Most state statutes have language like this:

“The decision to place or maintain a provider on prepayment claims review does not constitute a contested case under Chapter 150B of the General Statutes. A provider may not appeal or otherwise contest a decision of the Department to place a provider on prepayment review.”

However, in a recent case, Halikierra Community Services, LLC v. NCDHHS, the provider disputed being placed on prepayment review, and accused NCDHHS of a malicious campaign against it.

Halikierra was the largest in-home, Medicaid healthcare provider, and it alleged that two specific individuals at the U.S. Department of Health and Human Services (HHS) “personally detested” Halikierra because of its size. As an aside, I hear this all the time. I hear that the auditors or government have personal vendettas against certain providers. Good for Halikierra for calling them out!

According to the opinion, these two HHS employees schemed to get Halikierra on prepayment review by accusing it of employing felons, which is not illegal. Halikierra sued based on substantive due process and equal protection rights, but not before being forced to terminate its 600 employees and closing its doors because of being placed on prepayment review. It also asserted a claim of conspiracy in restraint of trade under NCG.S. §75-1 against the individual HHS employees.

The Court held that “The mere fact that an agency action is nonreviewable under the Administrative Procedure Act does not shield it from judicial review.” The upshot? Even if a statute states that you cannot appeal being placed on prepayment review, maybe you can!

Programming Note: Listen to Knicole Emanuel every Monday on Monitor Mondays for her live RAC Report, 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 Practus, LLP and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

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