THE CENTERS FOR MEDICARE AND MEDICAID SERVICES ISSUE A PRECLUSION LIST THAT CARRIES STRINGENT PENALTIES FOR MEDICAL PROVIDERS

Yet another concern to add to healthcare providers’ already long list is a new law, implemented by the Centers for Medicare and Medicaid Services (CMS) that carries severe consequences for certain providers. On Jan. 1, 2019, the CMS created a new Preclusion List. The Preclusion List includes two categories of individuals or entities: (1) those who are currently revoked from Medicare participation, and (2) those who have engaged in behavior for which CMS could have revoked the individual’s participation, had the individual been enrolled in the Medicare program at the time.  If a healthcare provider (or his or her practice) appears on the Preclusion List, those Medicare Advantage Plans in which the provider participates will be required to terminate the provider beginning April 1, 2019.

The Preclusion List, which was first made available to Medicare Advantage Plans on Jan. 1, 2019, will be updated each month. Providers who are on the Preclusion List will remain on the list for as long as their enrollment bar is in place with the Medicare program.  Notably, CMS will distribute the Preclusion List only to Medicare Advantage Plans; other healthcare providers and suppliers are not able to access the list. 

Although healthcare providers can appeal the CMS’s decision to place them on the Preclusion List by filing a request for reconsideration within 60 days of being placed on the list, those appeal rights are quite limited. We have seen, however, that in at least one instance, the CMS failed to notify a provider that she was being included on the Preclusion List. The provider only learned of this action when her Medicare Advantage Plans began terminating her. In this situation, there may be a due process basis on which to appeal the action due to lack of notice. Lack of notice may be one of the few grounds, however, for which an appeal is possible. 

Because individual healthcare providers cannot directly access the Preclusion List and will only learn of their inclusion on the list through notification by the CMS or Medicare Advantage Plans, practitioners should review their contact information as listed in PECOS and NPPES, including their email and mailing addresses and should make sure that that information is up to date. 

If revocation by the CMS is the predicate to appearing on the Preclusion List, what are grounds for revocation of a provider’s participation with the Medicare program? There is an ever-growing list of reasons for which providers’ Medicare participation status can be revoked. The Code of Federal Regulations lists the following as some of the grounds for revocation:

1. Noncompliance with Medicare enrollment requirements
2. Felony conviction
3. False or misleading information on the enrollment application
4. On-site reviews that determine a provider or supplier is no longer operational
5. Misuse of Medicare billing number
6. Abuse of billing privileges
7. Failure to document medical services or provide the CMS access to documentation
8. Medicaid termination
9. Suspension or cancellation of Drug Enforcement Administration (DEA) Certificate of Registration

For further questions about The CMS’s Preclusion List, contact J. Kevin West at 208.562.4900 or send an email to kwest@parsonsbehle.com.