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Courtney Tito, Member of the Health Law group at McDonald Hopkins, LLC in its West Palm Beach office will be presenting this informative webinar. This presentation will provide the participants with an overview of the bases for Medicare Revocations and what types of issues can be addressed now to hopefully avoid a revocation action in the future. Additionally, Courtney will provide some thoughts on how best to respond to a notice of revocation and the impact of September 2019 Final Rule on the effect of revocation.
This audio version of the webinar will cover the following objectives:
1. What are the bases for Medicare Revocation?
2. How can I avoid a revocation?
3. How do I defend against a notice of revocation?
cms, provider, revocation, medicare, billing, rule, appeal, submitted, bar, practice, enrollment, overpayment, documentation, physician, revoked, privileges, case, basis, request, compliance
Catherine Short, Courtney Tito
Catherine Short 00:00
Welcome to our continuing 2021 Educational Webinar Series. I’m Catherine Short Partnership Marketing Manager for First Healthcare Compliance. At First Healthcare Compliance, we help you with a comprehensive compliance management solution tailored to your business, a hospital, hospital network healthcare practice of any size billing company, or skilled nursing facility, and we help manage every aspect of a compliance program and our training library provides hundreds of modules that are easy to assign and track. As part of our complimentary educational webinar series. We bring you experts from around the country to discuss relevant topics in the healthcare industry.
Today, we are so pleased to have Courtney Tito member of the Health Law Group at McDonald Hopkins LLC located in its West Palm Beach office. Courtney received an MA from American University School of International Service in 2004. She earned her JD cum laude from the American University Washington College of Law in 2003, and a BA from James Madison University in 1997. She counsels and represents clients in a variety of health law areas, including federal and private payer audits and disputes, reimbursement contract corporate enrollment replications payment suspensions, internal investigations, compliance reviews, and in responding to federal subpoenas and civil investigative demands, or litigation background gives her unique perspective for all health law related dispute matters. Ms. Tito regularly writes articles, alerts and blogs on healthcare topics, particularly those related to reimbursement issues.
Before we begin, I would like to mention at First Healthcare Compliance we strive to serve as a trusted resource for compliance professionals. And every month we celebrate their hard work and dedication with our compliance Super Ninja recognition. For this Super Ninja, our team is turning the spotlight on Carolyn Keith, Practice Administrator at Allergy and Asthma Center. Carolyn says, “I love working at ACC because my job is never boring. It is never the same thing every day.” Congratulations, Carolyn, our team is honored to have the privilege of working with you.” A copy of the slides is available for download on the control panel. Feel free to submit questions into the question box on your control panel during the presentation. We will address questions at the conclusion of the presentation. Your PAHCOM and PMI CEU certificates will be emailed to you following the broadcast. Your PAHCOM certificate will come directly from PAHCOM and your PMI certificate will come from our email. There is no need to request either one. Additional CEU opportunities will be available to BC Advantage members following the live broadcast, see their website for details. So Courtney, a very warm welcome. Thank you so much for joining us today.
Courtney Tito 03:02
Thank you, Catherine for that introduction. And thank you all for joining me today. I always love doing these webinars. So I really appreciate another opportunity to join you. So, I know today’s topic is something that most of you believe will not impact you or your practice. But revocations have really been increasing in frequency, and Medicare has new tools and authorities related to its enrollment requirements that make revocations much more likely and easier for Medicare to enforce. So, today, I’d like to start out by giving sort of a primer as to Medicare revocations and providing a general overview of the bases for revocations. After that I will discuss the impact of the September 2019 final rule on enrollment and revocations a rule which I think got somewhat overshadowed by the onset of the COVID public health emergency or PHE, but which does have serious implications for enrollment and the government authorities related to enrollment enforcement and revocations.
Then we will look at some of the things you can do to hopefully prevent a revocation. And then finally, we’ll spend the balance of the presentation talking about how to respond to and defend against a revocation should you receive a notice. And if there’s time at the end, I will talk about some case studies from federal law and my own practice. So let’s get started. CMS can revoke Medicare enrollment for a variety of reasons which are set out on this slide. I’m probably not going to go through all of these, but I would like to discuss a few of them with you now, so that you can get a flavor of what those terms mean, in the revocation context, and as listed on that slide for your reference, these all come From the federal regulation at 42 CFR 424.535. So we’ll start with non compliance. This is a revocation basis that is related to enrollment requirements and related failures surrounding that such as a failure to pay a fee or failure to submit a corrective action plan those types of things. Provider conduct is another basis where the provider-owner managing employee, authorized official or other personnel are excluded from federal health care programs. It doesn’t have to be Medicare, it could be TRICARE, it could be Medicaid, or otherwise barred, suspended, or excluded from programs or activities under HHS. So, meaning if you get excluded from one of the other programs you will get, you can be excluded from Medicare as well. Felonies, this is a basis that is focused on when a provider-owner or managing employee is convicted of a federal or state felony offense and there’s a 10 year look back for these types of convictions. These are, you know, crimes against persons financial crimes, etc. false or misleading information. Here CMS is looking at false certifications on the enrollment application, or in the revalidation process, which includes certifying the veracity of statements agreements to abide by the relevant laws, regulations and guidance. certifying that you understand that if there are overpayments Medicare can recoup understanding that you can’t submit false claims those types of information. misuse of a billing number here, CMS is looking at instances for example of when a provider knowingly sells or allows another person or entity to use its billing number.
And this next one on the chart, abusive billing privileges, is one that I have seen a lot of lately, and I expect it will be a very common basis for revocations to come because it’s a really broad category and actually has a few subcategories within it. That that cover a variety of these alleged abusive billing privileges. Some examples could be claims for services that could not have been furnished to a specific individual on a specific date of service. For example, there are times where inadvertently or not, providers will bill for a service for a date of service after which a patient has died, or for service on a particular body part after there’s an amputation. So those types of things are services which could not have been furnished. Another example, is engaging in a pattern or practice of submitting improper claims, including, for example, improper or missing home health certifications, or I’ve seen a few cases where you know, the certifications are signed by inappropriate personnel or the certifications are just simply not received. Another one, are claims that are submitted that do not have sufficient documentation to support medical necessity, which is something that is seen a lot in the overpayment side of the administrative appeals process for Medicare. So it’s important to understand that those types of issues can also lead to, you know, much more severe sanctions, including this this revocation authority. One thing that’s really critical to note here that if CMS is alleging a pattern or practice of submitting improper claims, that pattern is described as only three or more improper claims. So it’s a ridiculously low bar that has been upheld, that that if there are three claims that are submitted as improper, CMS can allege that that is a pattern. So keep that in mind as we’re moving forward.
The next one I want to jump to is the failure to document or provide CMS access to documents. And this is another area that I think is really critical for providers to pay attention to, and is something that I’m seeing a lot more of. It relates to documentation requirements, as you can tell from the title. And I want you to for just a minute to think for example of all the medical records requests that you receive just as part and parcel of the practice of medicine and submission of claims to any payer. And if you don’t comply with those documentation requests or provide access to CMS to those documents that can serve as a basis for your enrollment to be revoked. And this can take place just in the ordinary course. have, you know, CMS is reaching out or one of its contractors is reaching out to do a payment audit or something else, and you choose not to respond or you provide an insufficient response. The other place that I’m seeing this play out as well is under the targeted probe and educate or TP audit some of these new efforts by CMS to encourage providers to improve their billing. So any one of these areas where you are responsible for providing the documentation necessary to support the claims that you are submitted, if you fail to do that, then CMS could impose a revocation or initiated a revocation. Another area that I wanted to mention today was affiliations that pose an undue risk. So this, this particular basis comes into play, in particular with the 2019 final rules that we’ll be discussing a little bit later. And under that rule, and under this cause for revocation, CMS is looking at all of the providers affiliations, and those affiliates, disclosable events, and then makes a determination as to whether that provider poses an undue risk of fraud, waste or abuse to the MediCal program.
So basically, they’re looking at, you know, physician a, and his relationships with lab B, supplier D. You know, specialist physician, F. And if any of those other relationships or vendors have had disclosable events, such as payment suspension, or revocation an overpayment pending any of those things, then the physicians himself or herself would be required to disclose that information about their affiliate. And this is a requirement that is going to be imposed upon all Medicare providers. And then Medicare will go through and look at the balance of those relationships and disclosable events and see if that physician, not the affiliates at this stage. But if that physician poses an undue risk to the Medicare program, based basically upon the company he or she keeps, it’s a pretty significant impact. So we’ll get into that a little bit more later. And you’ll see you know, obviously other things like billing from non compliant locations, abusing, ordering, certifying, preferring or prescribing authorities, and then obviously, patient harm could be another reason that CMS would initiate a revocation. So now we’re gonna move on to the reenrollment bar, which is found under 42 CFR 424 535 C, as seen on your slide. With every enrollment revocation, CMS also issues a re enrollment bar. And the re enrollment bar sets a timeframe that a provider must wait before it can re enroll in Medicare. And under the new rule, first time offenders can get a bar a reenrollment bar up to 10 years, and second offenders can get a reenrollment bar up to 20 years. That’s a fairly significant impact.
For each of the revocations that I have seen, since the beginning of I would say probably 2020, CMS has implemented the full 10 year re enrollment bar for every provider, regardless of the bases. And again, that’s an authority that was just granted to them as of November of 2019. So they’ve wasted no time implementing that newer authority. And moving on now, let’s talk about revocation, effective dates. These can depend upon the basis of the revocation and can be retroactive, and those are set out those first four ones depending on you know, the date of a license, suspension or revocation, the date of an exclusion, the date of a felony conviction, and the date that CMS or its contractor determined that the supplier was not operational. So if a revocation is retroactive, that means claim submitted from that retroactive date would not would not be paid or would be an overpayment if they were paid. So keep that in mind. For many of the bases, the provider will get 30 days from the date of the contractors mailing of the revocation letter. I will say that throughout the public health emergency most of my clients have been complaining about the excruciatingly slow pace of delivery. Have mail. And that has resulted in letters coming, you know, within days or even after the effective date of the revocation. For example, if a letter was sent on on January 5, it may not be received until January 25, or sometimes even as late as February 6, which will be after the effective date of that revocation. It’s really important that you providers keep their Medicare information current as far as address and other information so that these notices are not sent to the wrong place, or if they are sent to the wrong place that they are forwarded to the correct place. The date of that letter, as I as I mentioned, is, you know, pretty critical when triggering the timeframes for appealing a revocation and submitting a corrective action plan if one is allowed, and we will get to that in just a little bit.
So now I want to turn to the September 2019 final rule, which I’ve been sort of prepping for up until now. And as I mentioned in September 2019, CMS issued this final rule, which has incredibly far reaching impact on the obligations and implications for Medicare enrollment. Moving forward. The final rule provided CMS with new enforcement authorities to reduce criminal behavior and its programs. The goal of the final rule, which is entitled, program integrity enhancements to the provider enrollment process, is really an attempt to stop fraud before it happens. By keeping what you know, CMS is really calling unscrupulous providers out of the federal health care programs by creating new revocation and denial authorities, ultimately, and it’s in its effort to stop fraud, waste, and abuse in the Medicare or other federal programs. So a key authority in the rule deals with affiliations. And I mentioned this earlier, and it it really puts a huge burden on providers to maintain information on affiliations, past, present or future. For example, with excluded individuals or entities, the rule imposes a five year look back on affiliations, which means that a provider will need to obtain and maintain all required disclosable events from each and every affiliation, and provide that information to CMS for review. CMS, as I mentioned previously, will take this information and review it to determine if an individual or entity poses an undue risk of fraud, waste or abuse based upon their relationships with these previously sanctioned entities.
And the thing that’s key about this is that you know, while excluded providers are bad information is publicly available, you know, it’s you can go to the exclusion list. And in fact, you’re encouraged to check that list monthly for your own personnel. It’s also possible to look up your affiliations in there to get that information. But what this rule is really requiring providers to do is to get this, these other disclosable events, such as the ones I mentioned before, if there was a payment suspension imposed an overpayment that’s due and owing any of these other disclosable events as outlined in the September rule, and they providers now have an obligation to not only obtain that information from their affiliates, but to maintain records of it so that when CMS comes asking for that information, they have it and they can provide it. The rule also allows CMS to revoke or deny enrollment in the following circumstances.
When a provider or supplier has an outstanding debt to CMS from an overpayment provider or supplier circumvents program rules by coming back into the program or attempting to come back in under a different name. For example, the provider attempts to reinvent themselves. We see this sometimes when there’s been a really big overpayments and the entity ends up closing its doors or going bankrupt because of its an inability to pay and not always for bad faith reasons. But you know, this is an industry that that provider knows well. So you know, eventually they will move on and create a new entity and enter back into or attempt to become an enrolled provider for Medicare. Again, CMS is really trying to crack down on those types of issues. Again, here a provider or supplier bills for services or items from non compliant locations, and as we discussed earlier, exhibition Have a pattern of practice of abusive ordering or certifying of Medicare Part A or B items, services or drugs. This rule became effective November 4, of 2019. But due to this really staggering burden that it puts on providers to collect and maintain this information, CMS decided to take a phased in approach to implementation. And for that initial phase, CMS determined that it was going to request affiliation disclosure from certain certain targeted providers. So it would reach out to whoever I assume it will start with the providers, but it feels has the most concerns about and so if a provider is served with one of those requests, it must fully comply with the requested disclosure of the applicable affiliations and their related disclosable events. But ultimately, when the enrollment form is updated to include the request for this type of information, all providers are going to have to submit this for their affiliations when they become a newly enrolled provider in Medicare. And every time they they revalidate. So it’s really something that providers need to be thinking about now. Because when that requests come, it’s going to be pretty burdensome to figure out the operational mechanisms for obtaining and maintaining that information. It’s something that providers may want to think about when entering into new contracts or amending contracts or updating contracts is putting in a contractual obligation of their affiliates to provide this information.
So it’s, you know, again, we could do a whole webinar, certainly on the effects of this rule, and the obligations it creates. But for purposes here, you know, you’re going to have to be able to certify that the information you provide during the enrollment process or during the revalidation process is accurate. And going back to the rule itself, another relevant provision in this final rule was an increase in the maximum reenrollment bar from three years to 10 years. And we’ve discussed that a little bit. But I wanted to point out here that the commentary to the final rule provided that the 10 year bar would allow CMS to address a variety of factual situations, especially those involving improper or fraudulent behavior. And they asserted in the commentary that they would restrict the use of this 10 year bar to serious behavior and misconduct. And although there was a slowdown during COVID, of all types of CMS audits, in fact, I think there was really just sort of a six month moratorium, I think was between February and August, where the audits just stopped and the revocation slowed down.
We’ve certainly seen recently a dramatic uptick in these provider revocations and audits, and these have all included the maximum 10 year re-enrollment bar. Contrary to the situations described in the commentary to the final rule, the factual situations in the revocations that we have been seeing do not actually involve necessarily allegations of fraud, or serious behavior or misconduct. Each has really in some way or another related to a failure to provide sufficient documentation in response to requests from CMS or as Max, or, you know, an abusive billing practice, which I know CMS would take the position that that’s a false or fraudulent behavior is submitting bills that, you know, shouldn’t be submitted. But some of these are inadvertent errors. And while that may not be a defense, in the revocation process, it still doesn’t factually necessarily rise the level of fraud.
So, for our purposes, and for providers purposes, a 10 year re-enrollment bar can be devastating and perhaps even career ending, as a sanction if the providers field is not one that lends itself to a concierge or cash paid practice, especially as a Medicare revocation can also impact commercial payer contracts as well. And that’s really why, you know, I came up with the title of this presentation is that, you know, the goal is to really avoid a Medicare revocations and if you can’t and if you know your billing privileges are revoked, how do you best try to untangle it and either have that revocation terminated or if it can’t be terminated, then try to minimize that re-enrollment bar so that it’s limited as possible, you know, anywhere from one to three years at the maximum and certainly an effort to avoid the 10 year bar. Unfortunately, CMS has total discretion and setting the length of the re-enrollment bar. And if it’s not overturned at the reconsideration stage, which is the first appeal level, then there is no discretion for an administrative law judge or any of the other levels of appeal to overturn or even adjust that re-enrollment barling.
So now, we’re going to move into some of the ways you can prevent a revocation. First and foremost, again, I’m going to just reiterate that it’s important that your enrollment application is 100% true and accurate. And that the same is true with any of your validations. You’re also going to want to make sure as we’ve mentioned that you keep CMS informed, excuse me, as to all your current enrollment information. And just remember, there are strict notice requirements related to various items such as updating your address, updating, managing employees, and ownership. And some of those deadlines are as you know, as quick as 30 days, and I think some of them, you get up to 90 days, but it’s really critical that you keep track of what those deadlines are, and that you are complying with the notice requirements and submitting the required information within the required timeframe. Again, having a current address on file with Medicare is absolutely fundamental for any prevention of a revocation or defending reputations. Because for example, if you miss a records request, because of a bad address, Medicare doesn’t care. And that won’t be a successful defense for revocation based on a failure to provide access to documents to CMS, because ultimately, it was also your burden to keep your address information updated.
So it’s not just your burden to respond to the records, but it’s your burden as a provider to make sure that that Medicare can always find you when it needs to. Another reason that your current address is really important, and we’ve mentioned this is that if you don’t receive your revocation letter, then you will miss out on your opportunity to challenge it. The next tip that I will give you is that you really need to be involved in your billing process as the enrolled Medicare provider, especially if it is outsourced, because CMS and all the related opinions on these types of issues in these cases are clear that no matter who is handling the billing, CMS takes the position that it is the enrolled provider who is responsible. CMS and the opinions have expressly held that a provider cannot rely on his billing company. And that any failures, inadequacies or mistakes whether inadvertent or intentional by a billing company or any other vendor will not and are not a defense to a revocation. So what that means is, you know, billing companies are excellent resources, they have skills and information and experience that providers don’t always have or are able to do things at a more reasonable rate than it would be for a provider to do things in house.
So this is not me saying don’t use billing providers. It’s just making sure that you’re involved in the process, making sure that your billing company understands the rules and regulations, and that they are consistently applying them. Remember, that pattern of abuse of billing can be established after just three improper claims. So you’re going to want to make sure that as the as the provider, both you and the billing company are aware of the documentation requirements for the services that you provide, and that those the documents that you have are retained. So you want to make sure your records retention policies are up to date and that your personnel and the billing companies personnel are trained on all of those. You want to make sure that it’s always adequate and that you have the information you need to support the claim that you are building billings. Even if you are billing these wrong, at least it shows potentially this good faith basis of trying to do things the right way. Perhaps there’s a misunderstanding of a Medicare rule or guidance. Perhaps the guidance is conflicting. And this shows evidence of you attempting to comply with it. So this documentation can be really handy in a lot of ways.
You’re also going to want to terminate inactive locations. Our old locations. Again, this goes along with making sure that your enrollment information is current and making sure that you keep Medicare apprised of where you are and where they can reach you. You need to report adverse actions within 30 days, and report accurate practice locations where the actual services are rendered. And this is really all about documentation, making sure that Medicare has the right information. And making sure that on the provider side and or the billing side, that you are documenting what you are doing to establish that you are doing things in good faith and in in accordance with the rules and regs that Medicare requires.
So let’s move on to a revocation notice or an initial determination. Initial determinations are the trigger for appeal rights. So it’s important to understand what is an initial determination. And as set out here, an initial determination can be that initial denial of enrollment. So you can appeal that where you are applying to be a Medicare provider, and that is denied for whatever reason, that is considered an initial determination. Another initial determination is that dreaded letter that arrives that says, you know, as of this date, your billing privileges have been revoked, and we are terminating your provider supplier agreement. Another type of initial determination is this inclusion on the CMS preclusion list. And the CMS preclusion list is a list of providers and prescribers who are precluded from receiving payment for Medicare Advantage items and services or Part D drugs furnished or prescribed to manage Medicare beneficiaries. And often the notice of revocation will include a notification that the provider has been added to the preclusion list as of a certain date. And obviously, you can appeal both of those. There are forms and letters that are set out for these initial determinations that will provide the provider with its appeal rights and other important information. CMS provides the authority for providers appeal rights under 42 CFR 405803. Excuse me, so that you can look at that for your reference.
So moving on to the types of appeals and responding to them. It’s important to note that there are two types of appeals. corrective action plans are caps and reconsiderations and if you’re familiar with the overpayments, administrative appeals process. reconsideration requests in that process are the second level of appeal, you have as a first level of appeal and that process the request for redetermination, and then you would move on to the reconsideration request. When dealing with revocation notices, the first level of appeal is really the reconsideration request. So caps or corrective action plans are only available in a very limited instances. But they give the provider the opportunity to demonstrate its compliance through correction of stated deficiencies. And it’s the only opportunity to do so through the revocation appeals process.
So if you are denied under your role enrollment application, or there’s a revocation for non compliance, there will be certain deficiencies that are stated as the basis for those denials. For those two types of denials or revocation bases, you can submit a listing of what you have done to correct those deficiencies. And if you do that adequately, then the revocation will be removed. reconsiderations are really an opportunity to show that CMS didn’t have the legal authority to revoke or that there was an error in making that determination. And this is why it’s really important for attorneys to be involved because this is more of a legal basis of looking at the revocation authority of CMS, and arguing why it was wrong when it made the determination to revoke. So, moving back quickly to the corrective action plans, you can see that caps must be filed with Then 30 days of the initial determination, which again is a very short timeframe, especially if the mail is delayed, you have will, you will get a written decision within 60 days that will either reinstate your privileges or deny the cap. But if your corrective action plan is denied, and the privileges aren’t reinstated, you cannot appeal that corrective action plan. That’s the end of the road. As far as that goes, because denials are not considered an initial determination. And if you remember from our slides, a few slides ago, we listed some of the ones that were considered an initial determination. reconsiderations must be submitted within 60 days from the initial determination, which again is not a lot of time, it may feel like it, but once you’re on the ground, digging into the underlying facts, it’s not a lot of time to pull everything together, extensions are allowed for good cause. And I have had extensions granted for some of these cases, and in light of, you know, some of the mail delays, but I have also had extensions denied. I had one in particular where an extension was denied where we didn’t receive the letter until after the revocation had been put into effect.
Because CMS took the position that this was the address, you actually ended up receiving it, so no, you can’t get it. So keep in mind that an extension may not be granted. And you need to be prepared to move incredibly quickly on some of these. You’re in your reconsideration, you have to stay at the issues and the facts that you disagree with. And you have the opportunity and in fact, you must include all the relevant evidence and statements that you have to support why you disagree with what you disagree with. It’s also important to remember that at this stage, this is the only opportunity that you have to appeal, the imposition and the length of the ramp enrollment bar. The next levels of appeal, there’s no authority for them to weigh in on that determination. Written decisions are supposed to be issued within 90 days, they will either uphold or overturn or terminate that initial determination and terminate the revocation. This can take longer because you are allowed to supplement within the reconsideration. But that 90 day clock starts again, whenever you include supplemental information. And you can’t just continually supplement you know, at some point, they’re going to make a decision. As long as you supplement before the written decision is made, they will take that information into account. This 90 day period can also be delayed, I’ve seen if there’s a lot of documentation provided with the reconsideration request. So keep that in mind. During COVID, they have initiated an opportunity to provide information by email. And if necessary, if you reach out to them, if you do have a significant volume of documentation, they will set up a secure way of transferring those documents, you just need to reach out to them and ask and they will facilitate that for you. We’ve had to do that in the past. And it just works a lot better because otherwise you’re sending 12, 13, 14 emails with encrypted data. And that’s just difficult to track and take care of. So it’s much easier if you can get them to send you some portal information or a document upload site.
So the next three levels of appeals are listed on this slide. And you’ll note that each of these require that the the hearing or the review be sought within 60 days of the prior decision. For both the ALJ and DAB or the administrative law judge hearing and department appeals board hearing, it is possible to get an extension for good cause. I know it sounds self serving, it’s really not because this can be a fairly legal and complex process if you’re not familiar with it. But if you haven’t gotten legal representation yet, you really do need it for this third, fourth and fifth stage. The ALJ will issue a written decision will dismiss the case or remanded to CMS. Providers should understand that once it gets past the reconsideration stage and it gets into some of these more independent bodies. There’s very limited discretion as to the types of things that the ALJ the DAB or the federal courts can rule on. And they’re really limited because federal agencies are given a lot of leeway with how to interpret their own rules. And the bar is pretty high to overrule them and serve In things, they’re just expressly not allowed to rule on, for example, the imposition of the length of the re-enrollment bar. And there may be times where the ALJ opinion or the DAB opinion will say, look, we don’t agree with this. But unfortunately, it’s within the rights of CMS to do it under their discretion. So just it’s important to know that, and that final level appeal is to the Federal Judicial District court system. So since we have a little bit of time, I wanted to take the opportunity to I’ll start out with a federal case that really piqued my interest when I read it.
So the title of this presentation is don’t let a Medicare revocation and your practice. And the reason I say that is because, as I’m sure you’re all well aware, revocations are really, really devastating to a practice, especially when there’s an imposition of the longer re enrollment bars, it’s really possible for providers to bounce back from a one or three year re enrollment bar. But now that CMS has the ability to push that out into a 10 year bar, it really becomes a potentially practice ending event. And this case, which is entitled Roby versus Price, was a case where I thought the court did an excellent job recognizing the impacts of a revocation on a provider and his practice. It was a it’s a federal district court case. And if you’re interested in it, you can certainly email me afterwards, and I’d be happy to share the case with you. It’s a case where Dr. Price was seeking injunctive relief, he wanted the court to tell CMS they couldn’t revoke his practice his billing privileges while he was going through this process. And part of an injunction and it’s a very legal process is that part of what Dr. Price had to prove was that there was this irreparable harm that was being done to him by this revocations. So in this case, Dr. Price’s Medicare billing privileges were revoked for failure to provide CMS access to documentation and this case medical records. And there was a lot of back and forth in the case that dealt with whether CMS, you know, looked at his production of documents, whether he actually received the requests in a timely manner, whether CMS took them into consideration. And you could tell that the judge wasn’t convinced that CMS had actually reviewed the documentation that had been submitted for the supplemental documentation. So there’s some of that going on in the background, where you got, I got the impression from the opinion that the judge wasn’t particularly impressed with how CMS handled this whole thing. That’s not really here, nor there, for the purposes of me highlighting this case, because again, as I mentioned, in evaluating whether Dr. Price was entitled to this injunction, preventing the revocation, the court really took the time to examine the ways in this, this revocation would negatively impact Dr. Price to a potentially devastating effect for both him his career and his patients. And the court went through and looked at and listed out all the ways that Dr. Price could be irreparably harmed by this. And the first thing it looked at was, you know, if his license was revoked, Dr. Price was going to lose a lot of patients. He can’t treat patients for Medicare if he’s not an enrolled provider. These patients would be required to find alternative doctors. And if the revocation was overturned, if this patient has already moved on to another doctor, they may not want to come back. So those are patients that he’s losing, and he may not get back. If the revocation is terminated. For his current patients, he wouldn’t be able to prescribe medication. So those patients who needed medication or refills would have to turn to an alternative practice or physician to get that information. There was also the potential for the loss of contracts with commercial payers due to his Medicare revocations. And here, I think I’ve alluded to it already in this presentation, but I want to point out that most payer contracts require provider to notify the payer within a certain amount of time about revocations or other sanctions or adverse rulings related to Medicare.
And sometimes those exclusions can lead to a commercial payer to also terminate his contract. And if you fail to report the exclusion, or the revocation, even if it’s ultimately overturned, earned, there may be a basis under the payer, the commercial payer contracts for there to be a termination for failure to comply with that contractual obligation. So this, the Court recognized here that this wasn’t just affecting his Medicare patients, but it could also potentially affect all of his commercial insurance patients as well. As a result of the revocation, the court pointed out that the doctor was going to lose his staff appointments and pure elected positions, and he may not be able to get them back. By having this sort of sanctionable event and his history. He would have to report this revocation when reapplying for criminal clinical privileges. And finally, there could be substantial damage to his reputation. Because, you know, it just looks bad. If you don’t understand why a doctor’s Medicare privileges are being revoked. As a patient, you may make a leap that it’s for nefarious or bad reasons whether that’s true or not, and most of the revocations I’ve looked at have been, you know, inadvertence, or, you know, somewhat of a provider or physician burying their head in the sand when certain obligations come knocking, but it’s, it’s rarely it’s limited. When it’s actually, you know, a fraudulent provider trying to get one over on CMS, at least the ones that I’ve been involved in, I’ve certainly read cases where the fraud and the intentional actions against Medicare or its patients have been obvious, but I would say by and far, most providers are not intentionally out there trying to submit false claims or not comply with their obligations. So we looked at all those other effects. But the other thing that the Court recognized was that the provider can’t bill Medicare or receive reimbursements during the length of the revocation and the re-enrollment bar. Again, that’s one of the reasons why the length of the reenrollment bar is so vitally important. So when you think about this, for providers that have a practice that is heavily reliant upon Medicare reimbursements, which in my State of Florida has a lot of practices down here, this can cause a practice to go bankrupt and jobs to be lost. And, you know, even that period of loss during the appeal process can be devastating to providers. So it’s, you know, again, it’s best to avoid these issues before they arise. Now, if a revocation is terminated, it’s often terminated back to the date of the imposition of the revocation. So for example, if your billing privileges were revoked as of February 1, and it gets terminated, then your billing privileges get restored as of February 1. So if you were providing services during that timeframe, for example, you got late notice of the revocation and you know, held off on billing those pending the appeal, you would be able to go back and Bill those services and obtain reimbursement for the claims that were covered, and were properly supported. So eventually, you could potentially get some of that money back. for providers who get notice of the revocation and do the right thing and stop, you know, seeing patients that have Medicare and stop submitting reimbursements for those, that’s just a straight up loss of revenue that some providers cannot do without.
There’s a lot of practices that don’t lend themselves to that cash pay or concierge type of services and payments. So it can be really devastating. And I think an understanding of your own payer mix and what you are the revenue balance and what you are able to withstand and how you can plan for that is another reason why you want to get this reputation notice as timely as possible. So that while you are appealing this you can make whatever business decisions are necessary to try to forestall some of that loss. Moving on to what I have seen in my own personal practice in the last, I don’t know 12 to 18 months. It’s definitely that, you know, all types of sanctions by CMS are on the rise audits and appeals and enforcement’s are going to go through the roof, and I think revocations will continue to increase. They have certainly increased in that this last, you know, year. And I will say that while they are scary and overwhelming for a provider, there’s usually a pass to defend them, or at least to you know, minimize that reenrollment bar. But again, it’s very critical that you obtain legal advice and retain legal counsel as early in the process as possible. I’ll be honest, it can be really expensive to defend a revocation but given the alternative and the implication for a provider’s practice. It’s worth the investment. It’s not some reputations are easier to defend than others, some of the more complex ones can get up into, you know, sometimes a five figure defense. But if you’re staring down the barrel of a 10 year re enrollment bar, you have to decide whether that investment is worth the money to try and get that those billing privileges back. Again, I do believe that revocations are only going to continue to grow more common. And recent ones I’ve worked on, one of which included a failure to allow CMS access to documentation. And it was one of these was a fairly simple one to defend actually, because the provider was not actually the entity who maintain the records. And hadn’t been the party to whom the records request had been directed, or didn’t have, I guess, really should I say didn’t have the ability to provide the records because as a physician, he was a contracted employee for another entity. And he was not the one who maintained the records. So when we responded to that revocation, which did have a 10 year re enrollment bar, we submitted evidence that the doctor had only been the contractor for a short time, and that based on the contract, he was not in possession of the documents and didn’t have access to them, we were also able to establish that the physician had made several attempts to the entity to try and obtain the records to respond to CMS. So we showed that good faith basis of the physician to try and get these records. And we were ultimately successful in getting that revocation terminated, and his privileges restored, had another more recent one that was much more complex in which a doctor’s privileges were revoked for abuse of billing privileges. And in this case, it was really more of what I would consider a classic case of a physician relying heavily upon his billing company to handle reimbursement related matters with CMS. And providers do this all the time. And I understand it. It’s not a physician’s expertise to understand the billing and coding and documentation requirements. That’s why we have billing companies. That’s why we pay them.
But in this case, there was an underlying TPE audit, which would remember are the targeted probe and educate audits. And again, if you’re not familiar with those education audits, we could do a whole webinars on those as well. But for purposes of this explanation, it’s an education audit that allows a provider three opportunities. So there’s three chances to demonstrate to CMS that the provider has improved its billing practices. If you fail to show that improvement at the end of the third round, then the TP auditor’s can refer it to CMS for other sanctions, including an overpayment request or a revocation. Excuse me, in this case, the physician relied on his billing company to respond to the records requests and to take care of that TPE audit, and successfully complete the program. In the intervening time between that TPE program, and the revocation, the physicians switch billing companies, and the prior billing company, didn’t have records to support its responses wasn’t able to provide us with anything to show that it had responded to the TEP audit.
So we didn’t have the underlying facts about CMS says allegation of this abuse of billing privileges. But we knew that CMS has taken the position that since the provider failed the TV TP and there was evidence of this pattern of abusive billing practices that revocation was authorized. And again, CMS implemented a 10 year reenrollment bar. So we engaged a billing and coding consultant to overcome the medical necessity and documentation objections from the TPE process and to argue that the physician was currently properly providing and documenting medically necessary services. But we also crafted legal arguments in support and provided all this documentation through the reconsideration process. So this one was particularly complex, because we didn’t have you know, some of the documentation and the facts from the underlying basis of the reconsideration that we needed. But we were ultimately successful in this matter as well. And I say this, with the caveat that results are never guaranteed, right? CMS is hard to be, they have big pockets and they have the laws and the regulations on their side. But having competent legal counsel and consultants if necessary, is really critical in overcoming these concerns raised by CMS, and I genuinely believe that if you can establish Wish that you have, you know, done the right things, even though it doesn’t appear that way to CMS that it is possible to get these revocations terminated.
So with that, I think we’re running out of time. And I know we wanted to leave a little bit of time for questions. So I just wanted to say thank you again for joining me today. And I hope you found this presentation. valuable and informative. And I will turn this back over to you, Catherine.
Catherine Short 55:27
Well, thank you so much, Courtney. This was a wonderful presentation. Very, very informative. And we do have a few questions. So the first one is, what do you suggest a provider do first if they receive a notice of revocation.
Courtney Tito 55:43
So again, this is going to sound a bit self serving, but reach out to counsel. If you have in House Counsel, take a letter to them immediately. If not, then reach out and engage an experienced healthcare attorney who can really discuss the matter with you get a feel for the underlying facts and let you know how best to respond. You’re also going to want to make sure you take note and calendar, the deadlines that are in the letter. If you have the opportunity to do a corrective action plan. Remember, you only have 30 days to do that. The reconsideration you have 60 days. If for some reason the deadline has passed, you can immediately reach out and let CMS know you just received the letter and request an extension. If you do receive one, try to get it in writing. It’s an extension isn’t granted, make sure you let your attorney know that you attended to obtain one.
Catherine Short 56:40
Okay, all right. Very good. We have another question here. It says what types of things are you seeing that lead to revocation?
Courtney Tito 56:50
Yeah, I think the most frequent ones that I’ve seen over the last year are related to abusive billing practices and access to documentation. You know, as I discussed in some of those cases, at the end, the abusive billing practices, because this is something that Medicare’s always concerned about, because it’s focused on the dollars, right, they’re paying for things they feel that they shouldn’t pay for. So they have a number of ways that they can attack this, not only through overpayment demands and that process, but also through the sanction of reputation. And they don’t want providers in in the program if they’re not going to comply with the rules and regs and if they’re going to be getting money for services that CMS doesn’t think they should be getting. And just as a reminder, it only takes three improper claims for CMS to make that argument that there’s a pattern of abusive billing practices.
And the second one for access to documentation. This one, I think, is really kind of critical for providers, because everything in healthcare is evidence based. And this is particularly true for Medicare. So you just have to remember that adage, if it wasn’t properly documented that it didn’t happen. And it’s, you know, especially in times right now, with COVID. And the pandemic, where everything is moving so fast, especially in healthcare, it’s hard to remember to document. But I think it’s more critical than ever. So I think those are going to be two of the really important ones and things that I’ve seen lately.
Catherine Short 58:14
Okay, all right. Very good. All right. Can a re-enrollment bar associated with a revocation be appealed?
Courtney Tito 58:24
Yes. But only through that first level of appeal, the reconsideration process, CMS has complete discretion with regard to re enrollment bars and accordingly, even if an ALJ thinks that a re-enrollment bars unnecessary or too long, they have no discretion to alter it. So you need to make sure you’ve got your best arguments for why that should be limited. If the revocation isn’t terminated, you need to make sure you have those upfront in your first level of appeal.
Catherine Short 58:52
Right. And I think we have time for just one more question, what are some best practice tips?
Courtney Tito 59:01
So I probably whenever I’m asked this question, I probably say the same thing, here. And if you’ve heard me speak before, this will be familiar, but it’s just document, document, document. Another tip I would have here is to put a process in place or at least a responsible or accountable person or title for Medicare communications so that they’re not disregarded as clerical or not important by a mail clerk who may not understand their significance. And you don’t have to have necessarily have a formal policy with training that’s written. You may need that depending on the size of your organization and various other factors, but there at least needs to be someone who is accountable for that and the people opening the mail need to know who to bring that to.
Again, you’re going to need to make sure that you’re diligently complying with Medicare notice and timing requirements for updating your practice information so that mail from Medicare is always going to someone who understands what will need to be done. And finally, if you do unfortunately, get a revocation notice, please contact an experienced healthcare attorney as soon as possible so that they can help you.
Catherine Short 1:00:08
Okay, very, very good. Well, I want to say thank you so much, Courtney, do you have any other additional words of advice that you’d like to leave with us today?
Courtney Tito 1:00:19
No, not really. I think we just all need to be prepared for the, you know, there’s going to be more revocations, there’s going to be more audits across the board. And if you have any questions on how to prepare for those or things you can do to potentially avoid them, you know, you can certainly reach out to me or whoever you go to for your regular advice, but I think we all need to be prepared because I think the government is, is going to be aggressively enforcing and every in every way that they can.
Catherine Short 1:00:44
Okay, all right, very good. Well, thank you again for for being here. And coming on to First Healthcare Compliance and sharing with our with our attendees and audience. So thank you so much.
Courtney Tito 1:01:01
Thank you so much for having me. I really appreciate it.
Catherine Short 1:01:04
Thank you, appreciate it. Also, attendees, please use the contact information that you can obtain from the slides. And don’t forget that you can download those easily just right here from the from the go to webinar. And also, if you think of questions later, you can send us questions and we’ll forward them on to Courtney. Please remember your PAHCOM and PMI CEU certificate will be emailed to you from within two days following the broadcast. There’s no need to request it. You can register for future webinars, or request a demo of our compliance solution on our website at 1sthcc.com or call us at 888-543-4778. And thank you for joining us.