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From Health Law Daily, October 11, 2018

Medicare enrollment revocation not bound by medical license suspension period

By Tana McPherson, J.D.

CMS can revoke a provider’s Medicare and enrollment billing privileges for suspension of the provider’s medical license, after expiration of the suspension period, when the revocation decision is based on the suspension. Relying on 42 C.F.R. §§424.535(a)(1) and (a)(9), the HHS Departmental Appeals Board (DAB) affirmed an administrative law judge’s (ALJ) decision sustaining CMS’s revocation of a doctor’s Medicare enrollment and billing privileges following a six month period of medical license suspension (Styles v. Novartis, Docket No. A-18-28, Decision No. 2882, July 24, 2018).

Background. On appeal, an Arkansas doctor who was barred from reenrolling in the Medicare billing program for three years, argued that pursuant to 42 C.F.R. § 424.535(a)(1), CMS could not legally revoke her billing privileges because her medical license was reinstated prior to revocation, and the decision to revoke her billing privileges was based on the suspension. She also argued that CMS’s notification process was flawed because CMS improperly rejected her CAP. Additionally, the doctor argued that she should not be penalized for failure to comply with statutory notice requirements to inform CMS of an adverse legal event within 30 days of occurrence, because she made a good faith effort to report by relying on her billing provider to inform CMS of the suspension. Finally, the doctor asked the Appeals Board to review her length of her reenrollment bar.

Ruling. Affirming the decision of the ALJ, the DAB held that timing of the reinstatement of a doctor’s medical license is not material to CMS’s decision to revoke that provider’s billing privileges. CMS may determine a supplier is out of compliance with the Medicare enrollment requirements at any time; reasoning that limiting the revocation time period for providers with suspended medical licenses to the term of the suspension would contravene CMS’s policy goals and rulemaking history.

The DAB also held that "good faith efforts" to report do not comply with the 30 day adverse legal action reporting requirements set forth in sections 424.516(d)(1)(ii) and (iii). The obligation is on the provider to report and ultimately, neither the responsibility nor the liability are shifted through a billing contract. Thus, the DAB upheld the ALJ’s decision not to review the length of the doctor’s billing revocation period. Duration of reenrollment bars may last from one to three years, and CMS has sole discretion in determining their length.

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