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From Health Law Daily, February 25, 2016

CMS tries shutting the door on ‘bad actor’ attempts to enter

By Jenny Burke, J.D., M.S.

CMS may be making it more difficult for bad-acting providers and suppliers to enter the Medicare program by keeping them out of or removing them from Medicare for extended periods. In a Proposed rule, CMS would use provisions of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) to stop providers or suppliers who attempt to circumvent Medicare’s enrollment requirements using various name and identity changes or elaborate, inter-provider relationships to gain access not only to Medicare, but to Medicaid and the Children’s Health Insurance Program (CHIP) as well. It would also have the ability to deny enrollment for any provider or supplier that may pose risks to the system. By putting these stops into place, CMS also hopes to deter other parties from engaging in improper behavior. The Proposed rule is scheduled to officially publish in the Federal Register on March 1, 2016. Comments on the Proposed rule are due to CMS no later than April 29, 2015.

Provider disclosure. To better track current and past relationships between providers and suppliers, they would be required to disclose any affiliations with entities and individuals that: (1) currently have uncollected debt to Medicare, Medicaid, or CHIP; (2) have been or are subject to a payment suspension under a federal health care program or subject to an Office of Inspector General (OIG) exclusion; or (3) have had their Medicare, Medicaid, or CHIP enrollment denied or revoked. If the provider’s affiliation would pose any undue risk of fraud, waste or abuse, CMS could deny or even revoke enrollment. CMS could also deny or revoke enrollment if it discovers that the provider previously was revoked or denied enrollment under a different name or identity, even if that provider or supplier’s license was revoked in a different state.

Bad practices. CMS also plans to use its databases to gather information on a provider’s practice patterns which, under this proposed rule, would allow CMS to revoke a physician’s or eligible professional’s Medicare enrollment if he or she has a pattern or practice of ordering, certifying, referring, or prescribing Medicare Part A or B services, items, or drugs that is abusive, represents a threat to the health and safety of Medicare beneficiaries, or otherwise fails to meet Medicare requirements. It would further allow CMS to require that physicians and eligible professionals who order, certify, refer, or prescribe any Part A or B service, item, or drug must be enrolled in or validly opted-out of Medicare.

Re-enrollment changes. CMS also proposes to increase the re-enrollment bar from three years to 10 years. In addition, it would have the ability to add another three years if the provider attempts to re-enroll in Medicare under any different name or identifier. There would also be a maximum of a 20-year re-enrollment bar if the provider is being revoked from Medicare for the second time.

ACA implementation. The proposed rule is “meant to confirm compliance with applicable statutes, as well as to promote the furnishing of high quality care.” Section 6401 of the ACA requires Medicare, Medicaid, and Children's Health Insurance Program (CHIP) providers and suppliers to disclose any current or previous direct or indirect affiliation with a provider or supplier that: (1) has uncollected debt; (2) has been or is subject to a payment suspension under a federal health care program; (3) has been excluded from Medicare, Medicaid or CHIP; or (4) has had its Medicare, Medicaid or CHIP billing privileges denied or revoked. The ACA also requires CMS to deny enrollment based on affiliations that the Secretary determines pose an undue risk of fraud, waste or abuse.

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