Check out Knicole Emanuel’s recent blog post about CMS monetary recoupment before full adjudication. The Centers for Medicare and Medicaid Services (CMS) has the authority to recoup alleged overpayments from healthcare providers before the full adjudication of an appeal. She notes that, “While this practice is legally sanctioned under federal regulations, it raises significant constitutional concerns, particularly with respect to due process under the Fifth Amendment.”
CMS regulations allow them to offset payments against ongoing Medicare reimbursement – meaning, they can hold up your Medicare payments based on the fact some of your past claims are under review, potentially long before a final determination is made. This does feel like being “presumed guilty,” which would seem to be an infringement on due process. Ms. Emanuel reviews the constitutionality of this situation and you should read her entire article. She summarizes as follows:
“The provider should seek a declaratory judgment stating that CMS’s recoupment practices violate constitutional due process and an injunction preventing further recoupment until full adjudication. CMS’s authority to recoup alleged overpayments before the completion of an appeal presents serious due process concerns. Given the financial strain such recoupment imposes on healthcare providers and the potential constitutional violations, a declaratory action challenging this practice is a viable legal strategy. A successful challenge could prompt regulatory reform and ensure that providers receive fair procedural protections before their Medicare reimbursements are withheld.”
