Recently, the Centers for Medicare & Medicaid Services (CMS) published the calendar year (CY) 2024 physician fee schedule (PFS) final rule, which solidified certain proposed changes to Medicare provider enrollment requirements. The changes discussed below go into effect January 1, 2024.
The final rule expands CMS’s current revocation and denial authorities in two significant ways. First, CMS now has the ability to revoke enrollment if a provider, supplier, or any owner, managing employee or organization, officer, or director has been convicted of a misdemeanor under federal or state law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program and its beneficiaries. Previously, CMS only had the authority to revoke a provider’s Medicare enrollment in the event of a conviction for certain felonies. CMS has stated that this could include any misdemeanor that, in its judgment, places the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.
Second, the final rule expands CMS’s authority to revoke and deny enrollment if a provider, supplier, or any owner, managing employee or organization, officer, or director has had a civil judgment under the False Claims Act (FCA) imposed against them within the previous 10 years. Prior to the CY 2024 final rule, CMS did not have the authority to revoke a provider’s Medicare enrollment solely related to FCA activity. For purposes of this ground for revocation or denial, the term “civil judgment” would not include FCA settlement agreements – the provision requires a judgment against the provider or supplier.
The final rule also adds four new situations in which a revocation may date back retroactively:
- Revocations based on misdemeanor convictions: the effective date would be the date of the misdemeanor conviction.
- Revocations based on a state license surrender in lieu of further disciplinary action: the effective date would be the date of the license surrender.
- Revocations based on termination from a federal healthcare program other than Medicare (for example, Medicaid): the effective date would be the date of the termination.
- Revocations based on certain terminations of a provider agreement: the effective date would be, as applicable to the type of provider involved, the later of the following: (i) the date of the provider agreement termination; or (ii) in certain situations where providers receive payment beyond the provider agreement termination, the date that CMS establishes.
Additionally, CMS has finalized an intermediary action between deactivation and non-action by creating a “stay of enrollment” for non-compliance with Medicare enrollment requirements, which would be utilized at CMS’s discretion. In order for a stay of enrollment to be implemented, the provider or supplier would need to be non-compliant with at least one enrollment requirement that CMS believes can be remedied by a submission of an appropriate enrollment form. During this stay period, the provider would remain enrolled, but enrollment would be considered “paused” and claims would be rejected. The enrollment stay would last no longer than 60 days, and the provider will be given 15 days to submit a rebuttal. If the provider can return to compliance during the stay period, the provider will receive retroactive payment for the claims that were rejected during the stay.
Considering the ever-increasing expansion of CMS’s authority to revoke and deny Medicare enrollment, as well as temporarily pause an enrollment, providers should remain diligent regarding these upcoming changes and devote the necessary resources in order to maintain compliance with Medicare requirements.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments in healthcare law and regulation. If you or your healthcare entity has any questions pertaining to Medicare enrollment revocations and appeals or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or email@example.com.