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By Adrienne Dresevic, Esq. and Carey Kalmowitz, Esq. of The Health Law Partners, P.C.
The Centers for Medicare & Medicaid Services (CMS) issued a final rule that strengthens the agency’s ability to stop fraud by barring unscrupulous providers from federal health insurance programs. This rule is unlike past rules in that it stops providers before they get paid. This is a momentous step on CMS’s part to end “pay and chase” in federal healthcare fraud efforts and replace it with proactive measures.
The final rule, Program Integrity Enhancements to the Provider Enrollment Process (CMS-6058-FC), becomes effective November 4, 2019 and establishes novel revocation and denial authorities to buttress CMS’ efforts to stop waste, fraud and abuse. This rule is applicable to the entire provider community, including radiologists.
For example, an “affiliations” authority in the rule permits CMS to identify physicians or their practices that pose an undue risk of fraud, waste or abuse based on their relationships with other previously sanctioned entities. By way of example, a currently enrolled or newly enrolling radiology practice that has an owner/managing employee radiologist who is “affiliated” with another previously revoked practice can be denied enrollment in Medicare, Medicaid, and CHIP or, if already enrolled, can have its enrollment revoked because of such problematic affiliation.
In addition to the “affiliations” authority, the rule has other authorities designed to fight fraud and abuse in the medical community. Similar to the “affiliations” component, these authorities provide a basis for administrative action to revoke or deny, as applicable, Medicare enrollment if a physician or practice:
- Circumvents program rules by coming back into the program, or attempting to come back in, under a different name;
- Bills for services/items from non-compliant locations;
- Exhibits a pattern or practice of abusive ordering or certifying of Medicare Part A or Part B items, services or drugs; or
- Has an outstanding debt to CMS from an overpayment that was referred to the Treasury Department.
If a physician or practice has been found to have submitted false or misleading information in its initial enrollment application, then the new rule permits CMS to prevent such applicant from enrolling in the program for up to 3 years. The new rule also expands the re-enrollment bar to block fraudulent (or otherwise problematic) physicians or practices from re-entering the Medicare program.
It should be noted that these new authorities and restrictions are designed to ensure that the only providers and suppliers that will face additional burdens are “bad actors” — those who have real and demonstrable histories of conduct and relationships that pose undue risk to taxpayers, patients and program beneficiaries. Radiology providers and suppliers should stay vigilant and continue to ensure that they enter into transactions with other providers and suppliers that are not barred from federal health insurance programs, that they abide by billing authorities promulgated by such programs, and that any outstanding debts to CMS from overpayments are paid as soon as reasonably practicable.
For more information on issues relating to this article, please contact Adrienne Dresevic, Esq. or Carey Kalmowitz, Esq. at (248) 996-8510 or by email at adresevic@thehlp.com or Ckalmowitz@thehlp.com.
Adrienne Dresevic, Esq, is a founding shareholder of The Health Law Partners, PC, a nationally recognized healthcare law firm with offices in Michigan and New York. Practicing in all areas of healthcare law, she devotes a substantial portion of her practice to providing clients with counsel and analysis regarding compliance, Stark Law, Anti-Kickback Statute, and compliance related issues. Ms. Dresevic is a member of the American Bar Association Health Law Section’s Council, which serves as the voice of the national health law bar within the ABA. Ms. Dresevic is the Section’s Budget Officer. She also served as the ABA Health Law Section’s Co-Chair of the Physicians Legal Issues Conference Committee. She is licensed to practice law in Michigan and New York, and can be contacted at adresevic@thehlp.com.
Carey F. Kalmowitz, Esq, is a founding shareholder of The Health Law Partners, P.C., a nationally recognized healthcare law firm with offices in Michigan and New York. He practices in all areas of healthcare law, with specific concentration on the corporate and financial aspects of healthcare. Mr. Kalmowitz is a member of the State Bar of Michigan, the Michigan Society of Hospital Attorneys, the New York Health Law Section, the American Health Lawyer’s Association, and the American Bar Association and has written extensively on subjects across the spectrum of health care law. He is a frequent contributor to Link, regarding up-to-date legal issues relevant to imaging providers and suppliers. Mr. Kalmowitz is licensed to practice law in Michigan and New York and can be contacted at ckalmowitz@thehlp.com.
The authors are members of The Health Law Partners, PC and may be reached at (248) 996-8510 or (212) 734-0128, or at www.thehlp.com.
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