CMS pitches sweeping changes to rules for maintaining Medicare billing privileges

CMS' proposed 2020 Medicare Physician Fee Schedule includes substantial changes to the rules for obtaining and maintaining Medicare billing privileges.

A one-paragraph statement in the proposed rule calls for applying Medicare enrollment approval and revocation rules for opioid treatment programs to all physicians and other eligible professionals. The proposal would allow CMS to revoke Medicare billing privileges for physicians, advance practice nurses and others for a variety of reasons, according to law firm Baker Donelson.  

If finalized, the rule would allow CMS to revoke the Medicare billing privileges of any physician who has "been subject to prior action from a state oversight board, federal or state health care program, Independent Review Organization (IRO) determination(s), or any other equivalent governmental body or program that oversees, regulates, or administers the provision of healthcare with underlying facts reflecting improper physician or other eligible professional conduct that led to patient harm."

Here, Baker Donelson healthcare attorneys discuss how the proposed changes could affect hospitals and physicians and why healthcare professionals should submit comments on the proposed rule.

Question: If the proposal is finalized, how will it affect hospitals and physicians?

Donna Senft: Many hospitals have Medicare-enrolled group practices. If the proposed rule is finalized, it exposes these group practices to the loss of valuable professional staff (physicians, nonphysician practitioners, and other professionals who have reassigned their billing privileges to the group or even PAs who are enrolled as employees of the group) should the staff have a minor licensing matter that CMS determines puts the Medicare trust fund or its beneficiaries at risk of harm. It will also place increased responsibilities on the staff who do the credentialing with Medicare to be sure that information about these types of minor licensing matters are identified when initially completing the application forms and throughout the entire employment period. And, the manner of reporting a minor licensing board action will be important to avoid an otherwise qualified professional from not being granted billing privileges in the first place or losing privileges, thus unnecessarily diminishing the work force. Even for hospitals that do not employ staff who render medical services, obtaining sufficient medical coverage could be problematic if the number of qualified professionals is diminished. In proposing these changes under the guise of its "general rulemaking authority," CMS is attempting to step into the shoes of state boards since it has now decided that it is "ultimately responsible" for protecting Medicare beneficiaries, instead of the state boards created and charged with protecting the public.         

Currently, professionals are only required to report "final adverse actions" and that term is defined somewhat narrowly and mostly to situations where the professional would not hold an unrestricted license. This proposed rule greatly expands the reasons for which CMS could revoke billing privileges and/or deny enrollment way beyond its current authority. And, it does not take into consideration the lack of due process protections that exists in many state licensing disciplinary matters. Even though these rules would apply to Medicare reporting obligations only, a Medicare revocation leads to a mandated cross-termination of participation in Medicaid and other federal payer programs, so the implications of these proposed changes cannot be underestimated.

Q: How can hospitals and physicians prepare for the possible change?

Deborah Samenow: Rather than preparing for the change, hospitals, physicians and other professionals should act now to submit comments to CMS highlighting concerns with the proposed rule before the Sept. 27 deadline. Professional and trade associations should be alerted to these proposed changes, so that these organizations can alert their members and file a coordinated response.

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