Legal Defense in DMAS Home Health Audits

By on October 22, 2013

What would we do without home health care providers?  They keep “grandma” out of the nursing home by providing 24/7 assistance with the activities of daily living.  They care for our disabled loved ones so that they may remain comfortably and safely at home. Those home health agencies that cater to Medicaid recipients work endless hours for low reimbursement rates. On top of this, the threat of a DMAS (Department of Medical Assistance Services) audit is ever-present.

The results of an audit often lead to expensive, if not back-breaking, retractions of monies paid years earlier.  DMAS has long held the upper hand in the legal arena, with the Administrative Process Act clearly stacked in its favor.  However, the playing field has been leveled recently.  Senate Bill 944, passed and signed into law by Governor McDonnell on March 20, 2013, altered the Administrative Process Act—specifically, Virginia Code § 2.2-4027—to afford  more protection to businesses in actions brought by a state agency.

Virginia Code § 2.2-4027 has been altered in two important respects, both of which affect the standard by which a court is to review a DMAS final agency decision.  The first change gives the court greater latitude to reverse a finding by DMAS, when the weight of the evidence does not favor it significantly.

The second change permits the circuit courts to consider the law and how it applies to your case, without giving “deference” to DMAS’ own interpretation of the regulations and statutes.  In essence, the private sector is more likely to receive a fair day in court when litigating a DMAS appeal of a demand for reimbursement.

The changes outlined above, effective July 1, 2013, may have a dramatic impact on provider liability for those who challenge DMAS decisions at the circuit court level.  I encourage you to contact your attorney if you are facing a DMAS audit, if you have a current dispute with DMAS, or if you would like to learn more about what can be done to protect the resources you have earned while caring for those in need.

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