April 01, 2016

Medicare Integrity Rule Would Increase Disclosures

The Centers for Medicare and Medicaid Services (CMS) has issued a proposed rule detailing potential program integrity enhancements to the Medicare provider enrollment process.

The proposal, announced March 1, 2016, would require providers who are submitting or revalidating their Medicare Provider/Supplier Enrollment Application (CMS-855) to disclose any and all relationships between owning or managing employees and current or previous providers under the following conditions:

  • When they have or have had uncollected debt to Medicare, Medicaid or federal Children’s Health Insurance Program (CHIP)
  • When they have been subject to a payment suspension under a federal health plan
  • When they has been excluded from participating in Medicare, Medicaid or CHIP, or
  • When they has had their Medicare, Medicaid or CHIP enrollment denied revoked or terminated for any reason.
The rule would require disclosure of affiliations for the past five years, but it is important to note that there is no specific time limit on the lookback period for disclosable events. According to the proposal, current affiliations must be disclosed if any provider involved with it has ever triggered disclosable event.

Under current regulation, a provider or supplier that furnishes covered items, such as durable medical equipment, prosthetics, orthotics and supplies (DMEPOS), clinical laboratory, imaging services or covered/certified home health services, is required to maintain documentation for seven years from the date of service. The proposed rule would expand this requirement to include all Medicare Part A and Part B services, items and drugs that are ordered, certified, referred or prescribed by either a physician or eligible professional. The rule would apply to both written and electronic documentation.

In addition, CMS would require applicable providers to either enroll in Medicare or to validly opt-out to assure they are eligible to order, certify or prescribe items or services covered by the federal health insurance program.

If approved, the proposed rule would implement sections of the Affordable Care and Patient Protection Act and would give CMS the authority to deny or revoke Medicare enrollment for providers or suppliers who pose what the centers consider “an undue risk of fraud, waste, or abuse.”

Among the broad range of factors CMS would use to determine whether any of the disclosed affiliations represent “undue risk” are the duration of the relationship between the affiliated parties, whether the affiliation still exists, the degree and extent of the affiliation, the possible reason the affiliation was terminated and “any other evidence CMS deems relevant”. But CMS also notes in the proposal that it is not prepared to make specific conclusions as to what would constitute an undue risk.

However, CMS believes it is appropriate to establish a reasonableness standard that would obligate providers to disclose only such information that the provider should have reasonably known.

CMS is seeking comment on whether it should establish a reasonableness test and what elements should be included in such a test. The centers also seek comment on other methodological details including whether the five-year lookback period is appropriate, whether exclusion denials and revocations under appeal should be exempt from disclosure, and whether there should be a lookback period for disclosable events.

The failure to disclose required information that a supplier or provider should have reasonably known might result in a denial of initial enrollment or revocation of an existing enrollment. In addition, CMS is proposing to raise the reenrollment bar from a maximum of three years to 10 years.

Currently, a revocation of Medicare billing privileges begins 30 days after CMS or the Medicare administrative contractor (MAC) mails a revocation notice to the provider. Revocations are effective from a minimum of three years to a maximum of 10 years.

Additionally, CMS is proposing to add three years to the reenrollment bar for providers who attempt to circumvent an existing reenrollment bar by enrolling in Medicare under false pretenses. CMS is additionally proposing possible 20-year bars for individuals who have their billing privileges revoked a second time.

Finally, CMS is asking for input on whether there should be a threshold for the level of debt that would need to be reported; whether a provider or supplier should be exempt from reporting an uncollected debt if it is complying with a repayment plan; whether the level of reporting burden is low enough to merit collection of this information without any threshold or exemption; and whether inclusion of reassignment relationships is likely to lead to additional information that may prevent fraud, waste and abuse. The comment period for the proposed rule closes on April 25, 2016.

Please direct your questions to Dominick Parris at djparris@acr.org in the American College of Radiology’s Advocacy and Economics Department.