CMS Abusing Authority to Revoke Medicare Participation

Why this is a challenging time for providers who are finding themselves penalized excessively by CMS and without appropriate recourse or justice.

Being a physician is challenging these days, particularly with the myriad of laws and regulations that can affect a physician's career and practice.  This is especially true given the harsh approach being taken by CMS with regard to terminating physician participation in Medicare,  reasons which are unreasonable and unjust.  Doctors may not even realize how simple errors, mistakes or missed deadlines can have an effect on their entire medical career! 

We recently worked with a physician whose medical license was temporarily suspended by the state in which he lives for a purely administrative issue.  In this case, the doctor received no notification of the administrative issue and there is no dispute by any of the parties that he failed to receive such notification through no fault of his own.  Upon realizing what had occurred, he immediately corrected the situation and his license was restored within a few weeks, without any restrictions.  For those who are not aware, administrative suspensions can occur for any number of reasons in a particular state.

For example, a physician who fails to timely file taxes may be subject to a license suspension, and often suspensions related to administrative matters are wholly unrelated to patient care.  Within approximately 60 days of the suspension, the physician client happened to have to revalidate his Medicare number.  On the revalidation documents, he properly disclosed the license suspension to CMS as required and his enrollment was revalidated. 

A few weeks after receiving notice of revalidation, the physician was informed that his participation as a Medicare provider was being revoked for three years, retroactively beginning on the effective date his medical license was suspended. The revocation was based on his failure to notify CMS of the suspension within thirty days.  As many physicians know, there can be severe repercussion for failure to properly disclose information, such as a license suspension.  This physician, however, did notify CMS of the suspension. Appeals have been unsuccessful thus far, and even the attorney assigned to the case for CMS acknowledges the unreasonableness of the situation.  However, it appears that CMS continues to take the harshest approach possible on all such cases.

Federal regulations give CMS discretionary authority to revoke a provider's participation in Medicare for failing to notify the agency of certain events within the required time frame.  The exclusion period is anywhere from one to three years, depending on the severity of the basis for the revocation.   In this instance, CMS issued an exclusion for the longest period allowed by law to a physician who voluntarily notified CMS of his medical license suspension and the circumstances surrounding such suspension (a suspension he never would have received had the state licensing board given him proper notification).  Unfortunately, in this matter, CMS is treating this physician as harshly as the law allows, equating these circumstances with physicians who lie on their Medicare enrollment applications, sell their billing numbers, submit claims for services that were not rendered, or otherwise commit fraud.

As many physicians are aware, losing Medicare participation can greatly impact a physician's career.  In most cases, it violates a physician's employment contract and will likely lead to termination of employment.  In other instances, loss of participation in Medicare can lead to exclusion from accountable care organizations and physician hospital organizations, the ability to work with other payers, loss of medical staff privileges and similar repercussions.  Keep in mind that this physician's exclusion from Medicare had nothing to do with patient care. The ultimate result removed a qualified physician from providing services to Medicare beneficiaries - something of which this country and CMS is in short supply.

This is a challenging time for providers who are finding themselves penalized excessively by CMS and without appropriate recourse or justice.  CMS appears to be abusing its discretionary authority to the detriment of physicians and patients alike.