Tread Carefully in Medicare Billing

Thanks to new provisions that went into effect for the 2022 calendar year, CMS is no longer necessarily considering “nefarious intent” when determining whether a provider or supplier should be excluded from the Medicare program.

The Physician Fee Schedule for the 2022 calendar year is in full effect. The proposals, which were issued in July 2021, provide the Centers for Medicare & Medicaid Services (CMS) with greater authority to revoke Medicare billing privileges.

We all acknowledge that CMS is the “gatekeeper” to the Medicare program, preventing unqualified and potentially fraudulent individuals and entities from being able to enroll in and inappropriately bill Medicare. On Nov. 19, 2021, CMS finalized the CY 2022 PFS, and this proposal included a noteworthy provision.

Among the policies was also a proposal related to provider enrollment to “increase (CMS’s) flexibility to address periods of abusive billing that, though comparatively brief, have or could have harmed the Medicare program.” 

CMS explained that although it previously could revoke providers’ and suppliers’ Medicare participation for non-compliant billing under 42 C.F.R. § 424.535(a)(8), the prior wording of some of the factors in paragraphs (a)(8)(ii)(A) through (F) “hampered (its) ability to do so.” This regulation permits CMS to revoke a provider’s or supplier’s Medicare enrollment for non-compliant billing or the “abuse of billing privileges.”

Notably, the prior version of the regulation required CMS to take into account a) the reason for any claim denials, b) the length of time over which any pattern or practice of submitting claims that failed to meet Medicare requirements occurred, and c) how long the provider or supplier had been enrolled in Medicare, in order to determine whether an entity or individual was engaged in an abuse of billing privileges. The recently finalized regulation removed those three considerations.

The revisions permit CMS to focus on the percentage of denials within subsets of the provider’s or supplier’s claim submissions, rather than the entire universe of claims that were denied during the timeframe under consideration.

CMS described the prior regulation as a framework that “inhibits (its) capacity to target brief periods involving a significant percentage of denied claims,” because the regulation has been interpreted to require that the percentage be weighed against claim denials over the entire period of a provider’s or supplier’s enrollment. By restricting the scope of denial percentages to a shorter timeframe, this reflected the agency’s view that “even a comparatively short timeframe of improper billing can threaten the (Medicare) Trust Funds.”

CMS’s considerations in determining whether revocation is appropriate now include:

  • The percentage of submitted claims that were denied during the period under consideration;
  • Whether the provider or supplier has any history of final adverse actions, and the nature of any such actions;
  • The type of billing non-compliance and the specific facts surrounding said non-compliance (to the extent this can be determined); and
  • Any other information regarding the provider or supplier’s specific circumstances that CMS deems relevant to its determination.

CMS recognized that even if a period of erroneous claim submissions reflected “no nefarious intent by the provider,” if the provider still failed to comply with Medicare billing rules, this presents a risk to the Medicare program. Therefore, CMS explained that it does not believe the claim denial reason is “particularly germane” to the question of whether the revocation reason should apply.

Programming Note: Listen live to Knicole Emanuel’s RAC report every Monday on Monitor Monday, 10 Eastern.


Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards. She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining. Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Nelson Mullins and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

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