Medicare Billing Privilege Revocations & Appeals
Texas Health Care Attorneys Experienced in Reconsiderations and Appeals
The Centers for Medicare & Medicaid Services (CMS) has its eye on waste, fraud, and abuse, and has become increasingly aggressive in preventing and identifying overpayments and fraud. Although it employs many tactics to achieve this, one of its most powerful tools is its authority to prevent health care providers and suppliers from billing Medicare entirely by revoking their billing privileges.
Revocation of Medicare billing privileges can have devastating consequences, not only in terms of affecting a provider’s ability to bill Medicare now and in the future, but also because it increases their exposure to other potentially harmful enforcement actions. From recoupment and barring of reinstatement to licensing actions, credentialing issues, and potential exclusion from Medicare and other State and Federal health programs, the stakes and consequences are steep.
Our legal team at Hendershot, Cowart & Hisey, P.C. represents a diverse range of health care providers and suppliers in their fight to protect their Medicare billing privileges, enrollment status, and ability to practice. By leveraging extensive experience in health and medical law, we’re able to provide preventative counsel, responsive representation, and strategic guidance through appeals, applications, investigations, and other related health care proceedings at the state and federal level.
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About CMS’ Revocation Authority & Related Issues
CMS has many tools in its arsenal to root out health care and medicare fraud and recover payments improperly dispersed by Medicare. While ZPIC audits have and continue to be one preventative measure allowing CMS to identify and act on red flags, the agency has increasingly weaponized its authoritative powers.
- In 2006, federal health care regulatory changes gave CMS its ability to revoke the billing privileges of a provider enrolled in Medicare, though only in limited circumstances.
- Over the years, amendments and new rules afforded CMS a wide net to cast in its question to cap questionable conduct, and capture non-compliant providers.
- In 2014, CMS’ final rule on the matter substantially expanded the agency’s power to revoke Medicare billing privileges. It continues to propose new rules and push for further expansion.
Though the aggressiveness with which CMS has targeted abuses and fraudulent practices in Medicare is intended to protect the federal program and its beneficiaries from the most dishonest and deceitful providers, it nonetheless ensnares all participating providers and suppliers enrolled in Medicare, and exposes them to increasingly severe enforcement actions for even seemingly minor deviances.
In today’s health care regulatory environment, the climate for control and enforcement is red hot. Which makes it more important than ever for providers to:
- Ensure regulatory compliance on a proactive and preventative basis;
- Respond appropriately to audits and investigations; and
- Take immediate steps to protect themselves should the prospect of actions like revocation put them and their practices at risk.
Failing to take such steps can have significant consequences, including:
- Unfavorable revocation effective dates, such as an effective date which is earlier than the typical 30 days after receipt of a revocation notice. As an earlier effective date may subject providers to recovery actions, it can be challenged.
- Recoupment and overpayment recovery, which, depending on the circumstances and in the event billing privilege restoration is not possible, can be challenged.
- Barred re-enrollment for a minimum of 1 to 3 years. Time restraints on Medicare re-enrollment are based on the underlying reason for revocation, and may apply to one or all of a provider’s locations, both issues that can be appealed and challenged.
Grounds for Medicare Revocation
For reasons established in 42 CFR § 424.535(a), CMS has the authority to revoke a currently enrolled provider or supplier’s billing privileges, as well as any corresponding agreement. These reasons may include:
- Non-compliance with Medicare enrollment requirements (based on provider type), and documentation requirements.
- Felony convictions for any state or federal crime deemed against Medicare’s best interests and beneficiaries’ best interests, such as certain financial crimes, felonies that result in mandatory exclusion (controlled substance crimes or health care fraud), violent crimes, and others.
- Exclusion from Medicare and other federal health programs, including the exclusion of any of the provider’s personnel).
- Termination from state Medicaid programs or revocation of Medicaid billing privileges.
- Abusive billing practices, including billing for services not rendered and patterns of non-compliant billing practices based on factors such a denial percentages, reasons, duration of abusive patterns, and more.
- False or misleading information submitted to CMS on applications for Medicare enrollment or revalidation.
- Misuse of billing number, as either selling a provider’s Medicare billing ID to another or knowingly allowing another to use it (with the exception of benefit reassignment / ownership change.
- Failing to report, within 30 days, any location change or adverse action to CMS.
- Suspension or revocation of prescribing authority, including DEA registration and / or state license.
- Failure to verify sufficient capitalization as a new HHA (Home Health Agency) per CMS regulations regarding initial reserve operating funds within 30 days of request.
- CMS on-site reviews and other evidence which show non-compliance or non-operational practices.
- Failure to meet revalidation requirements, for institutional providers only.
Appealing Medicare Revocation of Billing Privileges
Just as with Medicare exclusions, CMS billing privilege revocation decisions can be appealed by providers. Our legal team can guide clients through the process of the Medicare revocation appeals and reconsideration process, which generally progresses as followed:
Rescind revocation by terminating owner / employee – In cases where revocations are imposed due to a provider’s owner, managing employee, or official being convicted of a revocable offense (i.e. a felony conviction or some other adverse action), it may be possible to seek reversal of the revocation. Providers must terminate their relationship with the questionable owner or employee, and submit proof of termination to CMS within 30 days.
CAPs (Corrective Action Plans) – Providers revoked for reasons of non-compliance, 42 CFR 424.535(a)(1), may have the opportunity to correct the cited deficiencies through CMS’ Corrective Action Plan process. A CAP must be submitted within 30 days of the revocation notice, and must provide evidence of current compliance. Our attorneys can immediately assist providers in creating thorough and compelling CAPs under tough time restrictions, either prior to or concurrently with any appeal.
Reconsideration – Reconsideration is the first level of appeals available to providers who challenge CMS’ revocation decision. Reconsiderations must be submitted within 60 days from revocation notice, usually to the providers MAC (Medicare Administrator Contractor), or to the CMS, in cases of abusive billing practices. Things to keep in mind:
- Reconsiderations are a critical stage for resolving Medicare revocation issues, as CMS has discretionary ability (unlike some mandatory exclusions imposed by the OIG) to consider additional factors and mitigating circumstances, such as the provider’s location and beneficiaries’ access to care, quality of care, and more.
- Providers must be sure to submit any documentation and information they want considered with their appeal, as failing to submit additional information in the reconsideration stage may bar providers from submitting information at the next level of appeal.
- Appeals beyond this stage generally focus not on CMS’ discretionary power, but rather if it had the authority to revoke a provider’s billing privileges given the facts.
Administrative Law Judge (ALJ) Hearing – Providers unsuccessful at the reconsideration level can appeal the decision to an HHS Administrative Law Judge. Requests for ALJ hearings must be submitted within 60 days of the reconsideration decision. As a type of adversarial proceeding in which a CMS attorney will represent the agency, and both sides can submit briefs, motions, evidence, and testimony, legal representation at this stage is essential. Our legal team can structure a strategy the best prepare you for the ALJ hearing, which are often resolved through summary judgment, or a type of ruling (or form of settlement) issued by the ALJ in favor of one party prior to any actual hearing being held
Departmental Appeals Board (DAB) Hearing – CMS and providers are both entitled to appeal a ALJ decision to the Departmental Appeals Board. Providers who wish to request a DAB review must do so within 60 days of the ALJ decision and, because the DAB has authority to deny review, should work with experienced health care attorneys to prepare their requests. Similar to ALJ hearings, DAB hearings are unique in their rules and procedures, and are the final stage of administrative appeal.
Federal Judicial Review – Any unfavorable decision from the DAB may entitle providers to seek judicial review in federal court. Providers must submit civil actions in U.S. District Court no later than 60 days of the DAB decision.
Call for Immediate Assistance From Proven Texas Health Care Lawyers
Hendershot, Cowart & Hisey, P.C. is immediately available to assist clients in any time-sensitive matter involving Medicare revocations, exclusions, and other state and federal health program enforcement actions – and we encourage providers to call (713) 909-7323 or contact us as soon as possible after an notice of revocation, or any investigation, subpoena, audit, or other potentially harmful action.
Our nationally recognized attorneys serve clients throughout Houston, Texas, and beyond in matters of health care fraud defense. We’re also available to consult with providers on how to prevent and position themselves to ensure compliance