Medicare Enrollment Denials and Appeals

The credentialing process is often time-consuming and frustrating, especially for providers with blemishes on their record, or non-traditional education or medical training. Unfortunately, most private payors do not share their credentialing policies with providers. Providers often become aware of the payor’s grounds for denial once the provider is denied enrollment. For providers with blemishes, denials just add fuel to the fire as payors often report credentialing denials to the NPDB, causing another entry that the provider must explain on their CAQH profile.

Denials from Medicare are the most troublesome. While grounds for Medicare denials are codified in rule 42 CFR § 424.530, they have been interrupted differently by state Medicare contractors who make the enrollment determinations. The biggest area of confusion is also the most common reason for denial, felony convictions.

42 CFR § 424.530 provides that CMS may deny a provider or supplier enrollment into the Medicare program if within the 10 years preceding application for enrollment, the provider, supplier, owner, or managing employee[1] has been convicted (including nolo contender pleas) of a felony offense that CMS determines is detrimental to the best interest of the Medicare program and its beneficiaries. The rule enumerates the following types of felony convictions that can result in denial of Medicare enrollment:

  • Felony crimes against a person, such as murder, rape, assault, and other similar crimes;
  • Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud, or other similar crimes; and
  • Any felony that placed Medicare or its beneficiaries at immediate risk, such as a malpractice suit that resulted in conviction of criminal negligence or misconduct

In addition, to the above felonies, Medicare must deny enrollment and exclude a provider who has been convicted of a:

  • Felony convictions related to unlawful manufacture, distribution, prescription, or dispensing of a controlled substance;
  • Felony convictions related to health care fraud, including theft, embezzlement, breach of fiduciary responsibility, and other financial misconduct in connection with the delivery of health care services or items or health care program;
  • A conviction related to patient abuse; or
  • A conviction of program-related crimes

Unfortunately, many local Medicare contractors, who issue enrollment determinations, have interpreted “a  felony offense that CMS determines is detrimental to be in the best interest of the Medicare program and its beneficiaries” to include any felony, thus using the language as a “catch-all.” As a result, providers with felony convictions not involving offenses enumerated in 42 CFR § 424.530 or mandatory exclusions under Social Security Act §1128A have their enrolment applications routinely denied. In some cases, providers with felony convictions unrelated to their professional competence or performance also have their Medicare enrollment application denied. Often, contractors do not supply any information for their denial determination other than “denied due to felony conviction.” Some contractors do not appear to make any attempt to determine whether the felony conviction is detrimental to the best interest of Medicare or its beneficiaries.

In addition to felony convictions, Medicare can also deny enrollment if the provider or supplier:

  • is found not in compliance with enrollment requirements in subpart P or the enrollment application, and the provider has not submitted a corrective action plan (see Preparing corrective action plans);
  • or personnel required to be reported on the application are excluded, suspended, or debarred from the Medicare program;
  • submits false or misleading information on their enrollment application;
  • is unable to furnish service or fails to satisfy enrollment requirements as determined during an onsite review;
  • has an existing Medicare debt;
  • does not submit the application fee and their hardship exception is denied;
  • submits an application for a location in which there is a moratorium; or
  • has their DEA registration revoked or suspended or has a restriction on their ability to prescribe.

In addition, Medicare may deny a business’ application if the owner has been placed under a Medicare payment suspension or if the applicant is an HHA and does not furnish documentation to support financial ability to operate.

Appeal Process

Provider or suppliers who are denied Medicare billing privileges for reasons related to felonies, conduct, or inability to furnish services, may request a reconsideration hearing. The request for reconsideration must be submitted within 60 days of the postmark date of the enrollment determination letter. The request for reconsideration must state the issue or finding of fact which the applicant disagrees and their reasons for disagreement. Reconsideration hearings are conducted by the contractor’s hearing officer or senior staff that were not involved in the initial determination. The reconsideration hearing officer or staff will make a determination regarding the provider’s or supplier’s enrollment that is independent of the contractor’s initial determination. Reconsideration determinations must be issued within 90 days of receipt of the request for reconsideration. It is the provider or supplier’s responsibility to submit supporting evidence that their enrollment application was incorrectly disallowed.

Suppliers denied Medicare billing privileges for reasons related to noncompliance can submit a corrective action plan (CAP). The CAP should contain verifiable evidence that the provider or supplier was in compliance at the time of the denial. The CAP should also include assurance or intent to comply with standards in the future. CAPs must be submitted within 30 days of the postmark date of the enrollment determination letter. The contractor will review the CAP and make a redetermination within 60 days of receipt. See Developing a Corrective Action Plan.

Providers and suppliers who do not receive a favorable reconsideration determination may appeal the determination to an Administrative Law Judge (ALJ) of the Department of Health and Human Services (HHS). Requests for ALJ hearings must be submitted within 60 days of receipt of the reconsideration determination. If unsatisfied with the administrative law judges’ findings, the provider or supplier may appeal the decision to the HHS Departmental Appeals Board (DAB). If the provider or supplier is dissatisfied with the DAB decision, they have the right to seek judicial review by filing a civil action in a district court. At each stage of the appeals process, the scope of review and admissibility of evidence becomes more limited. Therefore, we strongly advise that providers or suppliers who wish to appeal a denial of Medicare billing privileges, hire an attorney to represent them during a hearing.

Our Experience

Chapman Law Group represents providers and suppliers nationwide with Medicare matters, including enrollment denials, revalidation denials, revocations, and Medicare exclusions. Our team of attorneys includes a former HHS/Medicare attorney who is exceptionally experienced with Medicare matters including hearings, enrollment issues, and revocation matters. If you have been denied Medicare billing privileges, contact our attorneys for help preparing your reconsideration request, supporting documentation, and representation during any hearings and appeals. Remember, it is essential that the initial reconsideration and all steps that follow, are prepared properly.  Don’t try to go it alone. Our attorneys are skilled at putting together the best available information to achieve the desired result.  Chapman Law Group is here to help you achieve the best outcome possible.


 

[1] Managing employee means a general manager, business manager, administrator, director, or other individual that exercises operational or managerial control over, or who directly or indirectly conducts, the day-to-day operation of the provider or supplier, either under contract or through some other arrangement, whether or not the individual is a W-2 employee of the provider or supplier. (42 CFR § 424.502)


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