Background
Historically, CMS and other regulatory entities have been obligated to take a “pay and chase” methodology to fight fraud. Recently, the Trump Administration has been exploring options on how to take a more proactive approach to fight fraud before it occurs. On September 5, 2019, CMS announced new enforcement authorities to reduce criminal behavior in Medicare, Medicaid, and CHIP.
CMS Changes
Effective 11/4/2019: The final rule, Program Integrity Enhancements to the Provider Enrollment Process (CMS-6058-FC), creates several new revocation and denial authorities to stop fraud, waste, and abuse before it is paid. A new authority in the rule allows CMS to identify individuals and entities that pose a possible risk of fraud, waste, or abuse based on their relationships with other previously sanctioned entities. These authorities can perform administrative action to revoke or deny, Medicare enrollment if:
A provider or supplier circumvents program rules by coming back into the program, or attempting to come back in, under a different name (e.g., the provider attempts to “reinvent” itself);
A provider or supplier bills for services/items from non-compliant locations;
A provider or supplier exhibits a pattern or practice of abusive ordering or certifying of Medicare Part A or Part B items, services or drugs; or
A provider or supplier has an outstanding debt to CMS from an overpayment that was referred to the Treasury Department.
In addition, the new rule also gives CMS the ability to prevent applicants from enrolling in the program for up to three (3) years if a provider or supplier is found to have submitted false or misleading information in its initial enrollment application. The new rule also expands the re-enrollment bar that permits CMS to prevent providers from reenrolling for up to ten (10) years. This increases to twenty (20) years for second offenses.
Affiliation Disclosure (§ 424.519)
In addition to changes regarding re-enrollment, CMS has included language in the Final Rule that will require providers to disclose certain adverse actions taken against any other providers “affiliated” with the provider, its managing employees, or its owners. Below are the CMS guidelines, as stated in the Final Rule:
has been suspended or excluded from participation in a federal health care program;
had enrollment denied revoked or terminated by a federal health care program;
had billing privileges suspended, revoked, or denied by a federal health care program or;
currently has an uncollected debt to federal health care program such as overpayments, civil monetary penalties, or other assessment.
CMS also provides a definition for what it considers to be a disclosure required affiliation. The Final Rule broadly defines “affiliation” so that it includes:
direct or indirect ownership of 5% or greater;
a general or limited partnership interest, regardless of the percentage;
managing employees;
officers or directors; or
any reassignment relationship under 42 C.F.R. § 424.80.
Disclosable events, as defined by the Final Rule, include but are not limited to Uncollected Debt (Medicare, Medicaid, CHIP) including overpayments, CMP’s, providers that have been excluded by the OIG and providers that have had its enrollment denied, revoked or terminated. CMS indicated that the lookback period for disclosable events would be five (5) years; however, at this time providers will only be required to disclose affiliations if the following conditions are met:
“unless CMS, after performing the research and analysis described earlier and determining that the provider or supplier may have at least one affiliation that includes any of the four disclosable events, specifically requests it to do so.”
At this time, CMS has not mandated disclosure without receiving a specific request from CMS; however, Source 1 will continue to monitor the Final Rule for any changes that may have an impact on this language.
References
Federal Register. (2019, September 10). Medicare, Medicaid, and Children's Health Insurance Programs; Program Integrity Enhancements to the Provider Enrollment Process. Retrieved from https://www.federalregister.gov/documents/2019/09/10/2019-19208/medicare-medicaid-and-childrens-health-insurance-programs-program-integrity-enhancements-to-the
CMS. (2019, September 5). CPI Spotlight. Retrieved from https://www.cms.gov/About-CMS/Components/CPI/CPI-Spotlight.html
Joel is a Managing at Source 1 Healthcare Solutions. He has experience in overseeing compliance programs, investigating compliance and FWA within many facets of the healthcare industry.