Guest Blog by Michael Crouch
Dr. Fife –
Like you, I follow the blog of well-known healthcare attorney, Knicole Emanuel, and her recent post “The End of Chevron Deference: How Loper Bright Could Help Defendants Challenge Materiality in False Claims Act Cases | medicaidlaw-nc” is worth special attention. Her article discusses a judicial ruling that is highly relevant to many of the audits and appeals I encounter involving skin substitutes (CTPs). I encourage everyone to read her entire article, but here are the key points to note in relation to “skin substitute” audits by the Unified Program Integrity Contractor (UPIC):
- The Loper Bright decision ended what has been called the “Chevron deference”, meaning UPICs can no longer rely on their own or CMS’s informal interpretations of skin substitute rules to justify payment denials.
- In a skin substitute audit, UPICs often cite Local Coverage Determinations (LCDs), billing articles, or internal guidance as if they are binding. Although auditors are allowed to use any existing LCD when performing an audit after Loper Bright, defendants can argue these materials do not carry the force of law.
- Because the False Claims Act (FCA) and audit determinations hinge on “materiality,” providers can challenge whether alleged documentation or coverage deviations pertaining to skin substitutes were truly material to Medicare payment.
- Interpretive rules—like wound‑size thresholds, frequency expectations, or “conservative care” definitions—are especially vulnerable because courts must now interpret the statute directly, not defer to agency preferences.
- Overall, the ruling gives providers stronger grounds to push back when UPICs base skin substitute denials on technicalities, subjective criteria, or nonbinding guidance rather than clear statutory or regulatory requirements.
I encourage everyone to read Ms. Emanuel’s entire post, and if they are currently involved in an audit around skin substitutes, talk to their legal counsel about it.
Michael J. Crouch, CPC, CPMA, CHT-ADMIN
210-602-2602 (cell)
michaelcrouch@cplushealthcareconsulting.com
www.cplushealthcareconsulting.com
Related Articles:
- The Incredible Journey: Lessons Learned from a “Skin Substitute Graft” Audit – Part One – Caroline Fife M.D.
- Here Comes the Judge! Part 2 of the Incredible Journey of a Skin Substitute Audit – Guest Blog by Michael Crouch – Caroline Fife M.D.
- The Incredible Journey: Lessons Learned from a Skin Substitute Graft Audit (Part Three) – Caroline Fife M.D.
- More Details About Audit Requirements: Guest Blog from Michael Crouch – Caroline Fife M.D.
- One of Your Letters: UPIC Denies Everything Without Reading the Chart – Caroline Fife M.D.
- Check Out Attorney Knicole Emanuel’s Post on Medicare Audits of “Skin Substitutes”! – Caroline Fife M.D.
Dr. Fife is a world renowned wound care physician dedicated to improving patient outcomes through quality driven care. Please visit my blog at CarolineFifeMD.com and my Youtube channel at https://www.youtube.com/c/carolinefifemd/videos
The opinions, comments, and content expressed or implied in my statements are solely my own and do not necessarily reflect the position or views of Intellicure or any of the boards on which I serve.
