As most healthcare providers know, Medicare, like most payors, operates on a “pay and chase” system; meaning, they pay the vast majority of claims promptly, and then audit and attempt to recoup overpayments later should they discover information that calls the propriety of the claim into question.
When Medicare attempts to recoup an alleged overpayment, the provider or supplier can challenge the attempted recoupment via the administrative appeal process, which includes a hearing before an Administrative Law Judge (ALJ).
One issue that Medicare has been active in investigating is the allegedly off-label use of amniotic fluid injections to treat conditions such as inflammation and pain associated with with tenosynovitis and plantar fasciitis. Medicare takes the position that those uses are experimental/investigational and, therefore, not covered. Chilivis Grubman is representing several providers who are appealing these determinations.
Recently, in one of those cases, an ALJ overturned Medicare’s overpayment determination as to our client, a podiatry practice, and ruled that Medicare was required to return the entire overpayment (nearly $100,000) plus interest.
Significantly, while the ALJ agreed with Medicare’s position on coverage, the ALJ found that our client was “without fault,” and therefore, was not liable for the overpayment. Specifically, the ALJ found that our client neither knew, nor could have been reasonably known, that Medicare would deny coverage for the amniotic injections because CMS did not relay its position on amniotic products until after the dates of service at issue.
Amniotic fluid injections continue to be the focus of CMS’ investigational and enforcement efforts into Medicare billing fraud. Prior to 2023, CMS did not issue any guidance regarding coverage of amniotic fluid injections. Despite its silence, CMS has taken the position that amniotic products used for pain management are non-reimbursable under Medicare regulations. Thus, providers that used amniotic injections prior to 2023 are at an increased risk of being the target of a Medicare billing fraud investigation.
The attorneys at Chilivis Grubman represent healthcare providers and suppliers of all types and sizes in connection with Medicare, Medicaid, and commercial payor audits, and overpayment appeals. If you need assistance with such a matter, please contact us today.