The Proposed Expansion of CMS’ Revocation Authority Makes Monthly Exclusion Screening of ALL Employees More Important than Ever!

The Centers for Medicare and Medicaid Services (CMS)[1] is the Federal agency tasked with the overall responsibility of managing the Medicare program. Thus, while the Office of Inspector General (OIG) is the primary agency responsible for protecting the integrity of the Medicare program, CMS and its various contractors serve as the program’s gatekeepers responsible for keeping problematic providers and suppliers from enrolling in the Medicare program in the first place or from remaining enrolled in the Medicare program if they pose a financial or safety risk to the program or its beneficiaries.

I. Overview of CMS’s Existing Revocation Authorities:

One of the principle tools used by CMS to protect the Medicare program from the participation of unscrupulous providers is its regulatory authority to revoke a provider’s Medicare billing privileges. In recent years, CMS’s regulatory authority to deny a provider’s enrollment OR to revoke a participating provider’s billing privileges has been greatly expanded.[2] In addition to expanding the regulatory bases that CMS may rely upon when exercising its revocation authority, the 2019 Final Rule also extended the period that a revoked healthcare provider can be barred from reenrolling in the Medicare program from THREE YEARS to TEN YEARS. A summary overview of the current expanded list of reasons for revocation is discussed in an article entitled “Home Health Revocation Actions by Medicare are Expanding Around the Country.” [3]

II. CMS Proposes to Expand its Revocation Authorities to Include the Exclusion of Virtually Anyone Associated with the Provided

Earlier this year, CMS published a Proposed Rule[1] in the Federal Register that addresses planned changes to the 2022 physician fee schedule, a number of other regulatory issues, and a significant expansion of CMS’s authority to revoke a Medicare provider’s billing privileges.  The proposed changes to CMS’s revocation authorities are found in 42 CFR §424.530(a)(2) – Denial of Enrollment in the Medicare Program, and 42 CFR §424.535(a)(2) – Revocation of Enrollment in the Medicare Program.

Under the existing multi-part regulations, CMS may deny a provider’s application for enrollment OR revoke a provider’s existing enrollment in the program and their associated Medicare billing privileges if the provider or any owner, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel of the provider has been excluded from the Program by the OIG. While this would seemingly be sufficient to protect the program and its beneficiaries, CMS proposes to expand the revocation authority as follows:

• First, CMS proposes to expand the categories of parties within the purview of CMS’s denial and revocation provisions to include excluded administrative or management services personnel who furnish services payable by a Federal health care program, such as a billing specialist, accountant, or human resources specialist.
• Second, CMS also proposes to change the existing language from “other health care personnel” furnishing Medicare Services who must be disclosed “on the enrollment application” to ANY “other health care or administrative or management services personnel furnishing services” regardless of whether they must be disclosed on the enrollment application or not.
• Third, CMS proposes to modify the scope of 42 CFR §424.535(e) so that the language concerning other personnel furnishing Medicare reimbursable services is expanded to include “other health care or administrative or management services personnel furnishing services payable by a federal health care program.”

III.  Why Should a Provider Care About these Proposed Changes?

If the revocation changes in the Proposed Rule are adopted as written, providers will be more vulnerable than ever.   If it becomes law, the exclusion of a single employee or contractor could be the basis of a revocation from the Medicare program — or the denial of participation in the first place—so providers should be sure to screen ALL staff and affiliated entities (on a pre-employment basis and every 30 days thereafter), not merely owners, managers and clinical personnel. If a provider improperly employs an excluded individual who serves in an administrative or management services role, the provider may face a revocation action and be barred from enrolling in the Medicare program for as long as TEN YEARS. Need help meeting your statutory obligations to screen? The experienced screening professionals can help you accomplish your screening requirements. Give us a call at: 1 (800) 294-0952 for a free consultation. [1] CMS is a component agency of the U.S. Department of Health and Human Services (HHS). [2] On September 10, 2019, CMS published its Final Rule titled “Medicare, Medicaid, and Children’s Health Insurance Programs; Program Integrity Enhancements to the Provider Enrollment Process.” [3] See Liles Parker’s article dated September 28, 2020. You may also wish to review our article titled “42 CFR Sec. 424.535(a) Medicare Revocation Actions — Your Medicare Billing Privileges Can be Revoked for a Host of New Reasons. Are You Facing a Medicare Revocation Action? If so, You Must Act Fast to Preserve Your Appeal Rights.” [4] “Medicare Program; CY 2022 Payment Policies Under the Physician Fee Schedule and Other Changes to Part B Payment Policies; Medicare Shared Savings Program Requirements; Provider Enrollment Regulation Updates; Provider and Supplier Prepayment and Post-Payment Medical Review Requirements.” 86 FR 39104 (July 23, 2021).