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Recent Court Action in Key Areas May Provide Opportunities for Home Care Providers to Avoid Adverse Results

Guest Article Provided by Elizabeth Hogue, Esq.

Recent court actions and decisions make it clear that home care providers of all types, including home health agencies, hospices, HME companies and private duty agencies have new avenues to resolve potentially devastating consequences of the actions of regulators and referral sources.

Recoupment of Overpayments

In a case that was filed in the Northern District of Texas, Family Rehabilitation, Inc. v. Azar, No. 17-11337 (5th Cir. Mar. 27, 2018), the Court said that monies cannot be recouped from a home health agency until after hearings have been conducted by an administrative law judge (ALJ).

The U.S. District Court for the Southern District of Texas issued a similar ruling in Adams EMS, Inc. v. Azar, No. H-18-1443 (S.D. Tex. July 11, 2018). The Court said that the Centers for Medicare and Medicaid Services (CMS) cannot recoup monies until after Administrative Law Judge (ALJ) hearings have been held. The Court issued a temporary restraining order (TRO) prohibiting CMS from recouping an overpayment.

Providers faced with recoupment of potentially devastating overpayments prior to ALJ hearings should, therefore, seek rulings by the Court that recoupment is prohibited prior to such hearings.

Patients' Right to Freedom of Choice

Now physicians have had enough! Dr. Stephen Zappala sued Steward Health Care on the basis that the hospital exerted immense personal and financial pressure on him and other physicians to refer patients only to Steward hospitals and specialists in order to increase profits. Specifically, Dr. Zappala claims in his lawsuit that representatives of Steward called his patients and pressured them directly by incorrectly telling them that they had to have their surgeries at a Steward facility even though he recommended another hospital. Representatives of Steward would also cancel appointments made by Dr. Zappala's office staff for patients of his practice at competing hospitals. Although this case has not been decided, it hits the nail on the head with regard to issues that free-standing home care providers say they face concerning referrals from hospitals.

In addition, American Home Healthcare System, Inc., a freestanding home health agency in Indiana, has sued Floyd Memorial Hospital and Baptist Healthcare System for violations of antitrust laws related to patients' right to freedom of choice. In a recent Memorandum Opinion and Order, the U.S. District Court refused to dismiss the case. American Home Healthcare Servs, Inc. v. Floyd Mem'l Hosp. and Health Servs., No. 4-17-cv-00089-TWP-DML, (S.D. on Mar. 5, 2018). In this case, American Home Healthcare claims that the Hospital engaged in tortious and anti-competitive conduct specifically intended to monopolize home health agency referrals from the Hospital to Floyd Home Health, and to interfere with patients' rights and their relationships with their existing home health providers. Although this case has not been decided yet either, the home health agency's claims in this case ring true for some freestanding providers.

Surveyor Misconduct

A judge in the U.S. District Court in Maryland has ruled in Neiswanger Management Servs., LLC, v. May, No. PWG-17-746 (D. Md. Mar. 26, 2018)that providers may sue state officials based on alleged improper use of the survey process in violation of their constitutional rights. The provider in this case claimed that state surveyors violated its First Amendment rights and deprived it of due process under the equal protection and due process Fourteenth Amendment. The State claimed absolute immunity.

It's been a "banner" few months for home care providers that may receive some much needed clarification of key issues!

©2018 Elizabeth E. Hogue, Esq.  All rights reserved.

No portion of this material may be reproduced in any form without the advance written permission of the author.

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