New Federal 10th Circuit Case Decision Warns Health Care Providers: Never Miss an Appeal Deadline!…Or Else!!

Yesterday, the 10th Circuit Court of Appeals reminded everyone in the health care arena of the importance of appeal deadlines.  More so than other areas of law, the Medicaid world imposes short appeal deadlines with drastic repercussions.

In a published decision, Full Life Hospice, LLC, v. Kathleen Sebelius, Secretary, United States Department of Health and Human Services, 2013 WL 674756, U.S. Ct. of App., 10th Cir. (February 26, 2013) (only Westlaw citation available), the 10th Circuit Court of Appeals stated that Full Life Hospice, LLC (Full Life) failed to request a hearing within 180 days after notice of the final determination for Full Life to repay Medicare reimbursements that the U.S. DHHS claimed were distributed above the spending cap.

Now I understand that this recent decision covered Medicare deadlines and that North Carolina resides in the 4th Circuit Court of Appeals, but health care providers: BEWARE!!

Missing an appeal deadline will cause severe irreparable damage!!!

In Full Life Hospice, Full Life Hospice, a hospice care provider participating in the federal Medicare program, provided hospice care services to terminally ill Medicare beneficiaries and appropriately sought reimbursement for these services.  In a later recoupment audit performed by a contracted agent of U.S. DHHS, (Sound Familiar?) the contracted agent demanded repayment of funds that it claimed were distributed in excess of a Medicare spending cap.

The Medicare Act allows for challenges to regulations such as 42 C.F.R. 418-309, but it establishes a specific procedure for bringing such claims. As is relevant here, this process can begin with a hospice provider’s challenge to the basis for a request for repayment made by an HHS fiscal intermediary.

A provider is required to file a request for such a hearing with the Board “within 180 days after notice of the intermediary’s final determination.” Id. § 1395oo(a)(3).

Because Full Life Hospice failed to request a hearing within 180 days, the 10th Circuit Court of Appeals found that it had no subject matter jurisdiction.

Now, here in NC, in Medicaid, the appeal deadlines are even faster.

Deadlines:

Appeal a Tentative Notice of Overpayment: 15 days.  The result of failing to appeal within 15 days? The Tentative Notice of Overpayment becomes a final decision. Period.

Appeal a DHHS Hearing Officer’s Decision: 60 days from the date of the decision. Failure to appeal within 60 days? Final Decision. Period.

What about a prepayment review, in which the statute does not allow an appeal? Wait until the 6 months pass and see whether you get off prepayment review? No. If you do, expect a letter of termination from the Medicaid contract. Be pro-active.  Seek help.  Health care providers ate currently appealing these prepayment reviews and, alternatively, seeking injunctions.

Bottom line: Do not miss a deadline.

 

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on February 27, 2013, in Appeal Deadlines, DHHS, Division of Medical Assistance, Federal Law, Hospice, Legal Analysis, Medicaid, Medicaid Recoupment, North Carolina, Reconsideration Reviews, Tentative Notices of Overpayment and tagged , , , , , , , . Bookmark the permalink. Leave a comment.

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