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. While this practice is legally sanctioned under federal regulations, it raises significant constitutional concerns, particularly with respect to due process under the Fifth Amendment. And quite frankly. I wish a provider had the means to fight this
As we know, CMS enforces overpayment recoupment through various audit programs, including Recovery Audit Contractors (RACs) and Medicare Administrative Contractors (MACs). The statutory and regulatory basis for such actions includes:
42 U.S.C. § 1395ddd(f)(2): This provision grants CMS the authority to collect overpayments identified in audits.
42 C.F.R. § 405.379: This regulation outlines CMS’s ability to initiate recoupment before the final resolution of an appeal.
CMS Manual System, Pub. 100-06, Chapter 4: Provides operational guidance on recouping alleged overpayments.
Under this framework, CMS can offset overpayments against ongoing Medicare reimbursements, causing significant financial strain on providers who are still exercising their appeal rights.
The primary constitutional issue with CMS’s recoupment process is its potential violation of the Due Process Clause of the Fifth Amendment. Due...
