CMS’s Preclusion List bars many healthcare professionals from receiving payment for Medicare Advantage (MA) items and services or Part D drugs furnished or prescribed to Medicare beneficiaries.
What is the CMS Preclusion List?
In 2018, CMS issued a Final Rule[i] that rescinded existing regulations which required providers of Medicare Advantage services and prescribers of Part D drugs to enroll in Medicare Fee-for-Service.[ii] Instead, providers and suppliers desiring to participate in Part C and / or Part D would enroll directly with the payor plans. As a safety measure and to protect the integrity of the Medicare Trust Fund, CMS created a register of all health care providers, suppliers and prescribers who are precluded from receiving reimbursement for items and services covered by Medicare Part C and Part D. CMS has referred to individuals placed on the “CMS Preclusion List” as “Bad Actors.”
[i] “Medicare Program; Contract Year 2019 Policy and Technical Changes to the Medicare Advantage, Medicare Cost Plan, Medicare Fee-for-Service, the Medicare Prescription Drug Benefit Programs, and the PACE Program.” 83 FR 16440 (April 16, 2018).
[ii] Institutional providers and suppliers must still be enrolled in the Medicare-Fee-Service program. Additionally, as part of their credentialling requirements, some Medicare Advantage plans may require that a provider or supplier be enrolled in the Medicare Fee-for-Service program.
Who is Eligible to Review the CMS Preclusion List?
While the OIG’s “List of Excluded Individuals and Entities” (LEIE) is publicly available and is accessible by all Medicare providers and suppliers, the CMS Preclusion List is only available to Part C and Part D payor plans. As a screening agent for Part C and Part D payor plans, Exclusion Screening is authorized to access the CMS Preclusion List on behalf of these authorized payor plans.
How are Individuals and Entities Added to the CMS Preclusion List?
Individuals and entities placed on the Preclusion List by CMS fall within two broad reasons. Placement on the CMS Preclusion List will typically be the result of a CMS revocation action[i] OR because CMS has decided that the provider’s underlying conduct or behavior would have led to the revocation is detrimental to the best interests of the Medicare program
[i] 42 CFR §424.535
In making this determination under this paragraph, CMS considers the following factors: (1) The seriousness of the conduct underlying the individual’s or entity’s revocation, (2) The degree to which the individual’s or entity’s conduct could affect the integrity of the Part D or the Part C Medicare Advantage program, and (3) Any other evidence that CMS deems relevant to its determination. Finally, it is important to keep in mind that OIG exclusions actions and felony convictions will also result in an individual or entity being placed on the CMS Preclusion List.
How Long Can an Individual or Entity Stay on the CMS Preclusion List?
The length of time that an individual or entity can remain on the CMS Preclusion List depends on the underlying reason why the placement was first made. For example:
- Based on an Exclusion Action. If an individual or entity is placed on the CMS Preclusion List due to the fact that the provider, supplier, or prescriber has been excluded from participation in Federal and State health care programs, the individual or entity will remain precluded for at least as long as the individual or entity remains an excluded party.
- Based on a CMS Revocation Action. If an individual or entity is placed on the CMS Preclusion List due to the fact that the entity’s billing privileges have been revoked (or would have been revoked had they enrolled in the Medicare program), the individual or entity will remain precluded for the length of the their re-enrollment bar (ranges from 1 to 10 years, depending on the reason for revocation).
- Based on a Felony Conviction. If an individual or entity is placed on the CMS Preclusion List due to the fact that the provider, supplier or prescriber has been convicted of a felony, the length of time a party will remain on the CMS Preclusion List will be for a 10-year period, beginning the date of the felony conviction, unless CMS determines that it is in the best interests of the Medicare for a shorter period to be imposed.
Related FAQs.
Answers to common questions related to our Preclusion Screening.
Once it is decided to place an individual or entity on the CMS Preclusion List, CMS (through one of its Medicare Administrative Contractors (MACs) will send written notice to the party slated to be added to the list. Importantly, the MAC will send the letter to the address listed on the “Provider Enrollment Chain and Ownership System” (PECOS). The notice letter sent is required to describe the reason for preclusion, the effective date of the preclusion action, and the party’s right to appeal the preclusion action.
It is important to keep in mind that an exclusion action is very different than a preclusion action. There are currently seven mandatory statutory bases almost twenty permissive statutory bases for exclusion. Broadly speaking, an individual or entity is often excluded from participation in Federal health care programs due to a criminal conviction, abuse of a patient and / or an adverse licensure. Exclusion authorities are administered by the OIG. In contrast, CMS is responsible for determining whether an individual or entity qualifies to be placed on the CMS Preclusion List.
YES, an administrative framework for appealing the placement on CMS Preclusion List has been established. As set out under 42 CFR § 498.3(b), a new provision, Section (20), the decision to place an individual or entity on the Preclusion List an “Initial Determination” for appeal purposes. Furthermore, under 42 CFR § 498.5(n)(1):
“Any individual or entity that is dissatisfied with an initial determination or revised initial determination that they are to be included on the preclusion list (as defined in § 422.2 or § 423.100 of this chapter) may request a reconsideration in accordance with § 498.22(a).” (Emphasis added).
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