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From Health Law Daily, December 4, 2018

Provider’s claim it will be forced out of business is not irreparable injury

By Rebecca Mayo, J.D.

A home health service provider’s declaration that it will be forced to close its doors if CMS is permitted to move forward with recoupment is not enough to establish an imminent, irreparable injury. A district court denied a home health provider’s motion for Temporary Restraining Order (TRO) to stop CMS from recouping overpayments until after the matter is settled by an Administrative Law Judge (ALJ). The court found that a declaration that a provider will be forced out of business, with nothing more, is too speculative to meet the burden of proof (Nirvana Health Services, Inc. v. HHS, November 29, 2018, Byron, P.).

Overpayment. A Medicare Administrative Contractor (MAC) conducted a review of 64 sample claims paid to a home health provider and determined that the provider received $3,242,185.77 in overpayments. The provider requested a redetermination and then a review by a Qualified Independent Contractor. Both reviews rendered partially favorable decisions. The MAC then issued another demand letter informing the provider that it would recoup $2,985,121.53 in overpayments. The provider requested an ALJ hearing to challenge the overpayment determinations, however, with the current backlog of appeals matters there is a three-to-five-year wait for a hearing. Once the recoupment process started, the provider requested an extended payment plan and was rejected. The provider then filed the motion for a TRO seeking to enjoin the recoupment activities until the ALJ hearing, claiming that it will not be able to financially survive should CMS continue with recoupment.

Decision. The provider claimed that it would go out of business long before it had an opportunity to be heard by an impartial adjudicator, much less complete the rest of the administrative appeals process to which it is statutorily entitled to participate. The court held that the provider’s claims that it would be forced to close are speculative. The declaration that it would be forced to close its doors do not sufficiently establish that it will be forced to close imminently absent a TRO. Therefore, the provider failed to meet its burden of proving entitlement to an ex parte TRO. Additionally, the court noted that it recently found in a strikingly similar case that a health care service provider did not have a property interest in continued Medicare payments after the government instituted a Medicare recoupment action against the provider. For these reasons, the court denied the motion for TRO.

The case is No. 6:18-cv-02044-PGB-DCI.

Attorneys: Matthew M. Fischer (Florida Healthcare Law Firm) for Nirvana Health Services, Inc.

Companies: Nirvana Health Services, Inc.; Secretary of the U.S. Department of Health and Human Services; Administrator for the Centers for Medicare and Medicaid Services

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