Articles Posted in Fraud & Abuse

In May 2021, the Department of Health and Human Services (HHS) Office of Inspector General (OIG) added several new items to its work plan. The OIG work plan sets forth various projects including OIG audits and evaluations that are underway or that OIG plans to address during the fiscal year and beyond. These are some of the highlights of the new additions to the work plan of which providers and suppliers should be aware.

First, OIG will audit payments made to healthcare providers under the general distributions of the Provider Relief Fund. This includes approximately $92 billion across all three phases of the general distributions. Provider who received these funds were required to meet certain requirements, such as submitting revenue information and supporting documentation to the Health Resources and Services Administration (HRSA), which used this information to determine eligibility and payments. OIG will perform a series of audits of funds related to the three phases of the General Distribution to determine whether payments were: (1) correctly calculated for providers that applied for these payments, (2) supported by appropriate and reasonable documentation, and (3) made to eligible providers.

Second, OIG will conduct a nationwide, three-part study of the effects of the COVID-19 pandemic on nursing homes. The first part will analyze the extent to which Medicare beneficiaries residing in nursing homes were diagnosed with COVID-19 and describe the characteristics of those who were at greater risk. The second part will describe the characteristics of the nursing homes that were hardest hit by the pandemic (i.e., homes with high numbers of beneficiaries who had COVID-19). The third part will describe the strategies nursing homes used to mitigate the unprecedented challenges of COVID-19.

Federal regulations provide 22 distinct reasons that the Centers for Medicare & Medicaid Services (CMS) may use to revoke a healthcare provider’s or supplier’s Medicare billing privileges. Any revocation can have devastating impacts on a provider, but the grounds for revocation are often misunderstood. These are some of the most common reasons CMS will assert in revoking Medicare billing privileges.

Noncompliance: CMS may revoke a provider for noncompliance with Medicare enrollment requirements. This is somewhat of a catch-all and is often used when CMS or a contractor alleges technical issues with the myriad of requirements for a provider to maintain Medicare enrollment, such as issues with a provider’s surety bond, insurance policy, or business telephone lines. This reason for revocation is unique in two ways: the contractor often has authority to revoke without asking CMS to make the decision and the provider may have the opportunity to submit a Corrective Action Plan (CAP) demonstrating that they have addressed the issue.

Felony Convictions: CMS may revoke a provider when the provider or any of its owners or managers have been convicted in the last 10 years of any felony that CMS deems detrimental to the Medicare program or beneficiaries. This most often includes financial crimes such as insurance fraud or healthcare fraud but can include many others. A guilty plea or pretrial diversion program may still constitute a conviction. Moreover, even where a provider has previously disclosed the felony conviction, CMS may still use it as a reason to revoke. Where a provider is revoked for a felony, CMS will often make the revocation retroactive and back-date it to the date of the conviction.

A revocation of Medicare billing privileges can have devastating impacts on a healthcare provider. Not only does a revocation render the provider unable to bill the Medicare program for a period of time, but it can have wide-ranging impacts on a provider’s practical ability to operate or to practice in their chosen field.

Medicare billing privileges can be revoked for twenty-two enumerated reasons, including non-compliance with Medicare enrollment requirements, felony convictions, and failure to respond to requests for medical records. A recent expansion of CMS’s revocation authority also updated the ability to revoke a provider for an “abuse of billing privileges” to include a pattern or practice of submitting claims that do not meet Medicare requirements. In some cases, the Medicare Administrative Contractor (MAC) gathers the information and determines to revoke a provider. In other cases, the MAC forwards the information to the Centers for Medicare & Medicaid Services (CMS) and CMS makes the revocation determination. The revocation may be based on a prior interaction with the MAC or CMS, such as a prior audit of the provider. The provider may not necessarily be told during this interaction that it can lead to a revocation of billing privileges.

When CMS or a MAC revokes billing privileges, they will set a reenrollment bar, which dictates how long a provider must wait before it can reapply for Medicare billing privileges. CMS recently expanded its authority to set the reenrollment bar. In general, reenrollment bars may now be set between 1 and 10 years, depending on the circumstances, although certain provisions allow for longer bars. CMS may also decide to place a revoked provider on the CMS Preclusion List. The Preclusion List labels the provider a “bad actor” and cuts off their ability to bill Medicare Part C and Part D. A Medicare revocation or placement on the Preclusion List may also impact contracts outside the Medicare program. For example, commercial carriers may terminate participation agreements with a provider based on a Medicare revocation or placement on the Preclusion List.

On January 12, 2021, the Department of Health and Human Services (HHS) issued sweeping new directives regarding the procedures the Department will follow when relying on guidance documents, initiating enforcement actions, making jurisdictional determinations, and allowing prior notice and opportunity to be heard on agency determinations. These directives apply to civil and administrative enforcement proceedings and adjudications and take effect immediately.

First, HHS directed that the Department may not use guidance documents to impose binding requirements or prohibitions on persons outside of the executive branch except as authorized by law or expressly incorporated into a contract. That is, noncompliance with a standard or practice found only in a guidance document will not constitute a violation of the applicable statute or regulation. Further, the Department may refer to a guidance document in a civil enforcement action only if it has notified the public of the guidance in advance.

Second, HHS directed that the Department will only apply standards and practices, including in initiating a civil enforcement action or making an agency decision, that have been publicly stated in a way that would not cause unfair surprise. Of note, HHS defined “unfair surprise” to include when the Department initiates litigation following a lengthy period of conspicuous inaction.