South Florida Hospital News
Thursday August 6, 2020
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August 2013 - Volume 10 - Issue 2
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Providers Beware: Proposed Rule Will Make It Easier for Medicare to Revoke Your Billing Privileges

On April 29, 2013, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule (Proposed Rule) that will dramatically expand its authority to deny Medicare enrollment and revoke Medicare provider numbers and billing privileges for healthcare providers. With the Proposed Rule, CMS demonstrates that it is serious about preventing individuals and organizations from participating in the Medicare program if they pose a risk to the Medicare Trust Fund.
 
Two provisions of the Proposed Rule in particular will have a Draconian impact on healthcare providers. The first relates to providers with debts to the Medicare program. CMS’s proposal responds to reports of healthcare providers accumulating large Medicare debts (i.e. overpayments), departing the Medicare program and then attempting to re-enter the program through other channels. The Proposed Rule would prevent providers from enrolling additional provider or supplier sites when they have existing debts to the Medicare program, unless they repay the debt in full or agree to an extended repayment plan, among other requirements. Additionally, under certain circumstances, CMS will deny enrollment when the enrolling provider, supplier or owner was the owner of previous provider that had an unpaid Medicare debt when the previous provider’s enrollment was terminated or revoked. Currently, CMS has limited remedies to prevent individuals and organizations with unpaid Medicare debts from participating in the Medicare program.
 
The second proposal that creates a great risk for providers is CMS’s plan to revoke Medicare privileges if the provider or supplier has “abused” its Medicare billing privileges. By “abuse” CMS means the provider has a “pattern or practice” of submitting claims for services that fail to meet the Medicare requirements. CMS reports that it is proposing this rule so that it may have the discretion to revoke Medicare participation based on “a pattern of inaccurate or erroneous claims submission.” CMS envisions that a common scenario warranting such revocation would be when a provider or supplier is placed on pre-payment review and a significant number of its claims are denied for failing to meet medical necessity requirements. The Proposed Rule cites a number of factors that CMS would take into consideration in exercising its discretion to revoke privileges, including such factors as the reasons for the claims denial, the percentage of denials and the length of time over which the pattern has continued.
 
All Florida providers should pay close attention to these proposals because CMS is already aggressively using its existing authority to revoke Medicare billing privileges for providers in Florida. If the Proposed Rule is implemented, CMS would be granted unprecedented discretion to revoke Medicare billing privileges. This will be a huge problem for organizations and individuals who will discover that revocation of their Medicare billing privileges effectively serves as a form of payment exclusion with fairly limited appeal rights. For many providers, available appeal rights afford too few protections, are costly to exercise and offer remedies that often come too late to allow providers to survive. Being revoked from the Medicare program can also result in collateral consequences such as revocation of state licenses, accreditations, and participation in the Medicaid program, as well as threats to maintaining private payer contracts. CMS’s proposed changes raise many questions, not the least of which is the possible arbitrary, capricious and inconsistent application of the expanded revocation authority.
 
What can health care providers do in response to the Proposed Rule? The best strategy is to develop and implement a comprehensive and effective compliance and ethics program to monitor the provider’s adherence to the Medicare requirements. Such a program will allow providers to detect and correct problems in their billing and operational practices that could be used by CMS as the basis for revocation.   
 
 
Anne Novick Branan is Of Counsel for the Fort Lauderdale office of Broad and Cassel. She is certified in Health Care Compliance and a member of the firm’s Health Law Practice Group. She may be reached at (954) 745-5243 or abranan@broadandcassel.com.
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