Medicare Exclusion, Revocation, and Suspension Appeals

Medicare Exclusion

The purpose of excluding a provider from participating in federal health insurance programs is to protect federal healthcare programs from untrustworthy providers. As such, no federal health care program payment may be made for items or services: (i) furnished by an excluded individual or entity; or (ii) directed or prescribed by an excluded individual, where the person furnishing the item or service knew or had reason to know of the exclusion.

The Office of the Inspector General of the United States (“OIG”) is responsible for conducting audits, inspections, investigations and taking action against providers that violate certain rules and regulations that were enacted to protect the federal purse from fraud and abuse. A provider can be excluded from participating in federal health care programs by:

  1. engaging in fraud and abuse;
  2. making false statements or misrepresentations on enrollment applications;
  3. failing to meet professionally recognized standards of care;
  4. failing to provide medically necessary services; and
  5. failing to grant immediate access.

The OIG has broad discretion when excluding a provider from participating in federal health care programs. Nevertheless, the OIG criteria to exclude a provider must be based on the nature and circumstances of conduct, conduct during the Government’s investigation, significant ameliorative efforts, and history of compliance.

Medicare Suspension and Revocation

In addition, the Centers for Medicare and Medicaid Services (“CMS”) has the authority to suspend and/or revoke the billing privileges of health care providers. Deactivation means the temporary suspension of billing privileges without termination of the provider or supplier agreement. Revocation means automatic termination of the provider or supplier agreement, which is effective 30 days following notice unless based on final adverse action or non-operational location, then it’s effective as of the date of the adverse action or finding a location to be non-operational.

CMS may revoke the billing privileges of any health care provider when:

  1. A provider is not in compliance with enrollment regulations or the applicable enrollment application requirements;
  2. Provider, any owner, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel is excluded, debarred or otherwise not eligible to participate in federal health care programs;
  3. Provider, supplier or any owner is convicted of a felony within 10 years of enrollment or revalidation that CMS determines to be detrimental to best interests of programs and beneficiaries;
  4. Provider provides false or misleading information on the enrollment application;
  5. Based on an on-site review or other reliable evidence, CMS determines that the provider is no longer “Operational” or otherwise fails to satisfy any Medicare enrollment requirement;
  6. Provider fails to pay the application fee or obtain an approved hardship exception to pay the fee;
  7. Provider misuse of billing number; for example, provider or supplier knowingly sells to or allows another individual or entity to use its billing number;
  8. Provider abuse of billing privileges which includes the submission of a claim for services that could not have been furnished to a specific individual on the date of service or CMS determines that the provider has a “pattern or practice” of submitting claims that do not comply with Medicare’s claims completion rules;
  9. For physicians, non-physician practitioners and their organizations, failure to report a change of ownership or control or revocation or suspension of Federal or State license within 30 days; all other changes to enrollment data within 90 days;
  10. Provider fails to document or provide CMS access to documentation;
  11. For home health agencies, if HHA cannot provide supporting documentation verifying that the HHA meets the initial reserve operating funds requirement within 30 days of the request; and
  12. Mandated cross-termination if terminated or revoked by a state Medicaid Agency.

Appealing Medicare Revocations, and Suspensions

Health care providers can file an appeal when CMS makes a final determination to either deactivate or revoke their billing privileges. To file an appeal a provider must file a Request for Reconsideration within 60 days of the notice of revocation. If CMS or its contractor, or the provider or supplier is dissatisfied with the Reconsideration Determination, they may request an Administrative Law Judge Hearing within 60 days from the receipt of the Reconsideration Decision. If CMS or its contractor, or the provider or supplier is dissatisfied with the ALJ Hearing Decision, they may request a review by the Medicare Appeals Council within 60 days from receipt of the ALJ’s decision. Finally, a provider or supplier dissatisfied with the Medicare Appeals Council Decision may seek judicial review in Federal District Court by filing a civil action within 60 days from receipt of the Medicare Appeals Council’s Decision.

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