EROSION OF THE RULE OF LAW IN HEALTHCARE

In Palomar Medical Center v. Sebelius, which is pending in the U.S. District Court for the Southern District of California, the federal Magistrate Judge has entered a “report and recommendation” finding that providers do not have the right to challenge a Medicare contractor’s reopening of a claim for lack of “good cause” for the reopening. The regulations, however, seem to say something different. Under applicable Medicare regulations, there must be good cause for the reopening of a claim by a Medicare contractor where the claim is more than one year and less than four years old (42 C.F.R. §405.980(b)(2)).

The purpose of publishing regulations, which are promulgated by the appropriate regulatory body (HHS in this case) is to put people “on notice” of what is allowed and what is not. It is to clarify the meaning of (frequently) unclear statutes. We are a nation that prides ourselves on the Rule of Law, not of people, yet her we see yet another example of bureaucracy run amok! If this decision is upheld, there is a slippery slope that will ultimately lead to unelected bureaucrats ignoring laws and regulations and doing as they please to anyone.

Some have warned “Practitioners” and other Medicare contractors to “beware.” I would warn all of us to beware and watch this decision closely. It could be another step in the downward spiral of the rule of law in the US. More importantly, if you are caught in this spiral and are being threatened with such penalties, contact a Health Care Attorney IMMEDIATELY and fight back. It’s your only chance!