Physician NPI revocations

Martin Merritt, Esq.

In March the US Department of Health and Human Services announced the closure of six of 10 regional offices of general counsel, in Boston, New York, Chicago, Dallas, San Francisco and Seattle. The remaining offices will be in Atlanta, Denver, Philadelphia, and Kansas City.

According to the HHS website, “the Office of the General Counsel (OGC) is the legal team for the Department of Health and Human Services (HHS), providing quality representation and legal advice on a wide range of highly visible national issues.”

One assistant general counsel I spoke with last week, who is losing his job in the Dallas office, said “they have no plans to replace us, or move us to the four remaining offices.”

Why does this matter to doctors? First, and most obviously, many enforcement actions could be slowed to a crawl, which would at first blush, seem to be a good thing for doctors.

However, there is a second problem. Some actions, such as “revocations” of NPI numbers, can be performed administratively, without any legal due process whatsoever. When this happens, providers may receive a letter informing them that their NPI number has been suspended or revoked together with a statement of the provider’s “appeal” rights.

Although doctors must appeal immediately, an appeal cannot go forward without lawyers from the OGC to appear on behalf of HHS. What happens if there aren’t any?

I tried a case in 2021 with a fully staffed OGC. First, to the Department Appeals Board and then to an ALJ in Washington D.C. My client’s offense? “Failure to produce medical records.” HHS administratively revoked my client’s NPI for 10 years.

While the DAB lowered the revocation to 3 years, when we appealed to the ALJ, we didn’t get an answer for two more years, during which time, the doctor was not allowed to submit any claims to CMS. And this was with a fully staffed OGC. Can you imagine what will happen with 6 of 10 offices closed?

What’s an NPI number? A national provider identifier number is a way for the HHS to control doctors. HHS can terminate the doctor’s ability to earn a living by fiat, if the government is displeased in any of a growing number of ways listed under 42 C.F.R. §424.535(a):

• Noncompliance
• Provider conduct
• Felonies
• False or misleading information
• Failing an onsite review
• Misuse of billing number
• Abuse of billing privileges
• Failure to report
• Failure to provide documentation
• Reserve funds requirements
• Termination from other programs, like Medicaid
• Loss of DEA Certificate
• Improper prescribing
• False Claims Act Judgment
• Debt referred to the US Treasury
• Patient harm

A physician could continue to see patients, during the appeal of a suspension or revocation, but ordinarily must hold the claims until his NPI number suspension is reversed. Which, as I noted, took me two years to push an appeal through, when the OGC was fully staffed.

I have no idea how anyone is going to get any relief, if no one can have a hearing. Meaning, “due process” no longer exists in NPI revocations.

Martin Merritt is a health lawyer and health care litigator at Martin Merritt PLLC, as well as past president of the Texas Health Lawyers Association and past chairman of the Dallas Bar Association Health Law Section. He can be reached at Martin@martinmerritt.com.