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The Broadening of Provider Revocation Circumstances

A Medicare license revocation can drastically affect a provider or practice; for example, more than 90% of primary care providers accept Medicare, and Medicare beneficiaries account for at least 50% of primary care physicians’ patient population. A revocation can jeopardize providers’ livelihood and lead to other consequences, including loss of hospital staff privileges, bars on reenrollment, and harm to a provider’s reputation within the medical community. Despite these penalties, as Medicare revocation rules evolved, CMS broadened the language permitting the agency to revoke a license, without much guidance or specificity, leaving providers with little information on the exact behavior they must avoid to prevent a revocation.

Since 2008, CMS has significantly expanded the instances in which a provider’s Medicare license can be revoked. In 2008, CMS added a new reason for revocation, 42 C.F.R. § 424.535(a)(10), which allows CMS to revoke a provider’s Medicare license if the provider does not document or does not provide CMS access to certain documentation. In 2014, CMS added a new section to 424.535(a)(8), section (a)(8)(ii).

Under an (a)(8) revocation, CMS can revoke a provider’s enrollment in Medicare if the provider commits certain abuses related to billing. Prior to 2014, under the original rule, an (a)(8) revocation was limited to specific circumstances in which the provider submitted claims for services that could not have been provided to the individual on a the date of those services. These circumstances could include, the beneficiary is deceased, the physician or beneficiary is not in the location where the service were provided, or when the necessary equipment for the service were not in the location where the services occurred.

Section (a)(8)(ii), added in 2014, permits CMS to revoke a provider’s Medicare license if the provider displays a “pattern or practice of submitting claims that do not meet Medicare requirements.” In making this determination, CMS takes into consideration: (1) the percentage of denied claims, (2) the reason(s) those claims were denied, (3) whether the provider has a history of adverse actions against him or her, (4) the length of time over which the denied claims occurred, (5) how long the provider has been enrolled in Medicare, and (6) any other information regarding the circumstances that might be relevant to CMS. In enacting this rule, CMS reasoned that, without (a)(8)(ii), it would have no avenue to remove abusive billers from the Medicare program.

In its commentary on the rule, CMS explained that providers must be responsible for the claims they submit on all occasions. CMS has indicated that (a)(8(ii) is not intended to target sporadic billing errors but only repeated patterns of denied claims However, CMS has refused to provide a definition of “pattern or practice.” In response to concerned commenters that the new rule is overly broad, CMS has stated that Medicare billing privileges assign responsibility to the provider to understand and seek clarification of policies if there is a misunderstanding. This could lead to trouble for providers who rely on other physicians to provide documentation and other information related to the service, because each provider is ultimately responsible making sure the claim and the necessary documentation comply with Medicare requirements.

Similarly, in adding (a)(10), CMS increased its power to revoke providers’ Medicare licenses without offering substantial guidance. Under (a)(10), providers, including those who do not order a service but only furnish it, are required to keep documentation for 7 years after the date of the service provided. However, the documentation providers must retain is not defined, other than that they must keep written and electronic documents related to certifications, referrals, services, prescriptions, and orders.

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 Medicare and other rules and regulations that may have an impact on Medicare revocations. If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney  at 248-544-0888 or

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