CMS to Penalize Physicians for “Guilt by Association” on Vendor Bad Acts

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Original story posted on: October 28, 2019

It’s a move sure to stir up controversy. 

Under a recently passed Centers for Medicare & Medicaid Services (CMS) Final Rule, your Medicare enrollments will be judged not necessarily on your performance but based on your affiliations with other providers and suppliers.

Yes, you read that right: “other providers and suppliers.”

CMS 84 FR 47794 will establish or determine if you have a provider or supplier “affiliation” with an entity that has committed "bad acts." Based on this, you could be considered to represent an increased fraud, waste, or abuse risk. If this happens, CMS is authorized to deny or revoke your Medicare and Medicaid billing privileges.

What are you doing to protect your practice from harm? The following summarizes the actions you must take to prepare yourself for the full implementation of this Final Rule, and how you can stave off Medicare and/or Medicaid revocation.

Although this Final Rule goes into effect on Nov. 4, you have a little wiggle room based on CMS’s targeted “phased-in” approach. It’s essential that you use this time to thoroughly understand how to avoid getting blindsided because of an affiliate’s wrongdoing. You must know how to protect your practice from losing its ability to bill under Medicare and Medicaid.

Our ICD10Monitor.com Talk Ten Tuesdays broadcast this morning offers a few practical, plain-English Final Rule strategies you’ll need to protect your practice. The highlights include:

  • Determine which of your relationships constitute an “affiliation” under the Final Rule
  • Pin down exactly what constitutes a “disclosable event”
  • Don’t let a provider’s “degree of commonality” get your enrollment application denied
  • Set up a screening process for future affiliates to head off billing problems
  • Don’t let CMS “revoke” your Medicare billing privileges because of “guilt by association”
  • And much, much more…

Although CMS has stated that “any decision to revoke will not be taken lightly,” it’s clear that with these new requirements and consequences, there will be an increase in enrollment and attestation denials.

In a snapshot look into the new Final Rule, what would “affiliation” mean to a provider?

  1. MEDICARE
  2. DEFINITION OF AFFILIATION

We proposed to define “affiliation” in § 424.502, for purposes of applying the affiliation disclosure provisions in § 424.519, as meaning any of the following:

  • A 5 percent or greater direct or indirect ownership interest that an individual or entity has in another organization.
  • A general or limited partnership interest (regardless of the percentage) that an individual or entity has in another organization.
  • An interest in which an individual or entity exercises operational or managerial control over, or directly or indirectly conducts, the day-to-day operations of another organization (including, for purposes of § 424.519 only, sole proprietorships), either under contract or through some other arrangement, regardless of whether or not the managing individual or entity is a W-2 employee of the organization.
  • An interest in which an individual is acting as an officer or director of a corporation.
  • Any reassignment relationship under § 424.80.

What are the “bad acts” under fire by CMS? And under the new provisions, what new authority does CMS have? They now can:

  • Deny or revoke a provider’s supplier’s Medicare enrollment if CMS determines that the provider or supplier is currently revoked under a different name, a numerical identifier, or business identity, and the applicable re-enrollment bar period has not expired.
  • Revoke a provider's or supplier's Medicare enrollment – including all of the provider's or supplier's practice locations, regardless of whether they are part of the same enrollment – if the provider or supplier billed for services performed at, or items furnished from, a location that it knew or should reasonably have known did not comply with Medicare enrollment requirements.
  • Revoke a provider’s or supplier’s Medicare enrollment if the provider or supplier has an existing debt that CMS refers to the U.S. Department of Treasury.

The increased consequences for non-compliance with CMS’s new Final Rule means that you could lose your ability to see Medicare and Medicaid patients for up to 20 years. It is up to medical practices to do their due diligence, read through the new provisions, and make sure that their affiliate partnerships are on board, so as to not have their Medicare billing and credentialing privileges revoked due to “guilt by association.”

Programming Note:

Listen to Terry Fletcher report this story live today during Talk Ten Tuesday, 10-10:30 a.m. EST.

Terry Fletcher, BS, CPC, CCC, CEMC, CCS, CCS-P, CMC, CMSCS, CMCS,  ACS-CA, SCP-CA, QMGC, QMCRC

Terry Fletcher, BS, CPC, CCC, CEMC, CCS, CCS-P, CMC, CMSCS, CMCS, ACS-CA, SCP-CA, QMGC, QMCRC, is a healthcare coding consultant, educator, and auditor with more than 30 years of experience. Terry is a past member of the national advisory board for AAPC, past chair of the AAPCCA, and an AAPC national and regional conference educator. Terry is the author of several coding and reimbursement publications, as well as a practice auditor for multiple specialty practices around the country. Her coding and reimbursement specialties include cardiology, peripheral cardiology, gastroenterology, E&M auditing, orthopedics, general surgery, neurology, interventional radiology, and telehealth/telemedicine. Terry is a member of the ICD10monitor editorial board and a popular panelist on Talk Ten Tuesdays.

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