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Appealing a Medicare Enrollment Denial

Reconsideration Requests After a Denial of Enrollment in Medicare

The Centers for Medicare & Medicaid Services (CMS) has placed as much attention on scrutinizing providers and suppliers who seek enrollment in Medicare as they do on matters of Medicare exclusion, billing privilege revocations, and other enforcement tools for cracking down on waste, fraud, and abuse. The result is a difficult and daunting credentialing process, and one rife with potential problematic areas – especially for those with blemishes on their record.

Because enrollment in Medicare and the ability to bill federal programs can be critical to practitioners, suppliers, and medical practices, ensuring you take the right steps to limit exposure to regulatory risks the first time around is critical. Even more so, seeking the help of experienced health care attorneys when appealing a denial from Medicare can help you make the most of your rights and limited opportunities to rectify a difficult situation.

Hendershot, Cannon & Hisey, P.C. has been nationally recognized for our work in health and medical law, and actively serves clients throughout Houston and the state of Texas in matters involving Medicare – especially appeals and reconsiderations. Call (713) 909-7323 to speak with a lawyer.

The Medicare Enrollment Process: Some Background

At the time Medicare was first created in 1965, lawmakers felt placing overly restrictive conditions on enrollment would hinder the program’s viability. Until recently, there were few barriers to enrolling in Medicare, as either a supplier or a provider. Following a crack-down on Medicare fraud, CMS powers progressively strengthened. The OIG, after a major health care fraud investigation, further concluded much of the problem stemmed from approving unethical, unqualified, and inexperienced applicants.

Today, any provider or supplier that wants to receive payment for Medicare-covered items or services, or from a program beneficiary, must first be enrolled in Medicare. Coupled with additional protections, the enrollment process requires:

  • Submission of a “CMS-855” form, which contains information about applicant to assess their eligibility, to an applicable Medicare contractor;
  • Disclosure of certain reportable events, such as changes in ownership or location, or adverse legal actions, within a specified time frame;
  • Regular updates to enrollment information to maintain billing privileges (revalidation);
  • Meeting an array of procedural requirements as established in 42 C.F.R. Part 424, including special rules and additional requirements for DMEPOS suppliers and HHAs (home health agencies).

In 2006, CMS’ long-anticipated Medicare Enrollment Final Rule greatly expanded requirements for enrollment, and created the process and procedures through which applicants can be denied, among other Medicare matters. It also established reasons for revoking billing privileges.

What Happens When Your Medicare Enrollment Application is Denied or Rejected?

Whether you are a prospective supplier / provider seeking enrollment for the first time, or are seeking enrollment following a revocation or exclusion, your application will result in one of three actions:

  1. Billing privileges will be granted;
  2. The application will be rejected; or
  3. The application will be accepted, but billing privileges denied.

Apart from billing privilege revocations, which we discuss here, the two primary outcomes include rejection and denial.

Enrollment Application (CMS-855) Rejection

CMS contractors are gatekeepers for enrollment in Medicare. If an application is incomplete and applicants fail to provide needed documentation or information within 30 days of being notified, a contractor has the authority to reject the application. However, the contractor also has the ability to work in good faith with applicants to extend the time period for furnishing needed information and resolving the matter.

If an application is formally rejected, applicants must re-initiate the enrollment process, complete a new CMS-855 form, and re-submit all supplementary documentation. Providers / suppliers who have their enrollment applications rejected do not have the right to appeal.

Enrollment Denial

CMS has the authority to deny any applicant (prospective or otherwise) it or its contractor finds ineligible to participate in the program. There are a number of reasons why a provider / supplier may be denied enrollment in Medicare. Some examples include:

  • Non-compliance with requirements and failure to submit an acceptable CAP (corrective action plan)
  • The applicant or any other official or employee within the organization is excluded from participating in federal health care programs, or has been placed on payment suspension
  • Failing to pass an on-site review
  • Existing Medicare debt / overpayment
  • Convictions for certain crimes, including any conviction within the past 10 years involving a felony crime (i.e. crimes against a person), a felony which places beneficiaries or the program at risk (i.e. criminal negligence / misconduct), and certain financial crimes (i.e. tax evasion, insurance fraud, and embezzlement).

The strategy for responding to an enrollment denial depends largely on the underlying reason. If, for example, an applicant was denied due to the adverse actions of a managing employee or anyone in the practice / company, CMS can reverse the denial if applicants submit proof that they terminated relationships with those individuals within 30 days of receiving a denial notice. For denials based on other reasons, applicants have the right to appeal.

Appealing a Medicare Enrollment Denial

Suppliers and providers are afforded the right to appeal any Medicare enrollment decision with which they disagree. Just as with appealing billing privilege revocations, enrollment denial appeals are governed by the Part 498 Appeals Process (and in part under 42 C.F.R. 405.874).

Because not all administrative actions taken after an enrollment application is filled are “initial determinations,” the appeals process is triggered only when a notice of initial determination (which will include reasons for the denial, its effect, and information about the right to appeal) is mailed.

The appeals process for enrollment denials is generally a four-step process, though some suppliers / providers denied on the basis of non-compliance may have the option to submit a CAP within 30 days of receiving the initial determination notice. These CAPs are early intervention strategies and those who have such an opportunity should ensure they’re fully and accurately constructed.

Apart from a CAP, or as the next step should it be denied, the appeals process will proceed as follows:

  1. Reconsideration – Applicants denied enrollment can submit a written request for reconsideration within 60 days of receiving the determination notice for their enrollment application. These requests must detail any findings with which applicants disagree and reasons for the disagreement, and should include any necessary documentation or supporting information. A hearing officer not involved in the initial determination will then review the request and submitted information and mail a reconsideration determination to the applicant.
  2. ALJ Hearing – Following an unsatisfactory reconsideration determination, providers / suppliers can request an ALJ hearing within 60 days. ALJ hearings require ample preparation, and may require pre-hearing conferences to identify issues, evidence, witnesses, and stipulations, as well as the presentation of written briefs, oral arguments, and questioning and cross-examination. Administrative Law Judges presiding over the hearings are required to issue written decisions within 180 days from the filing of request. In some cases, ALJ’s may dismiss a hearing request (for cause, or upon request), and the HHS Departmental Appeals Board (DAB) may remove any pending request to consider the appeal itself.
  3. DAB Review – If an ALJ results in another unfavorable decision, the next stage of the appeals process is a DAB review. Requests for DAB to review a Administrative Law Judge’s decision must be filed within 60 days, include specific issues of disagreement with findings of facts or interpretations of law, and the underlying reason for why decisions have been incorrect. The DAB has the authority to dismiss, deny, or grant these requests, and when granted will permit the filing of written briefs and statements and presentation of oral arguments and evidence. The DAB may issue a decision of its own or may send the matter back to the ALJ within 180 days of the request for review
  4. Judicial Review – The final step in the appeals process is filing a civil action in federal court within 60 days for judicial review.

Each stage of appealing an enrollment denial progressively limits the scope of review and the admissibility of evidence, which is why it is critical to obtain the responsive representation of experienced attorneys as soon as possible early in the process.

Immediate Assistance with Medicare Enrollment Denial Reconsiderations / Appeals

Hendershot, Cannon & Hisey, P.C. is poised to provide the immediate and knowledgeable assistance providers and suppliers need when navigating the Medical enrollment process, reconsiderations, and appeals of enrollment denials, among many other Medicare and health care matters. To speak with an attorney about your case, options, and how our firm may be of assistance, call (713) 909-7323 or contact us online.

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