New Rule Expands Bases on Which Providers Can Be Excluded from Participation in Medicare

Written By Melony Anderson 

On December 3, the Centers for Medicare & Medicaid Services (“CMS”) issued a new rule that enhances CMS’s ability to exclude or remove providers from participation in Medicare.  According to a press release issued by CMS, the new rule is designed to “prevent physicians and other providers with unpaid debt from re-entering Medicare, remove providers with patterns or practices of abusive billing, and implement other provisions to help save more than $327 million annually.”

The new rule has several provisions.  The first, and most significant given CMS’s stated purpose for the rule, is as follows:

CMS may now deny enrollment if the provider, supplier or owner thereof was previously the owner of a provider or supplier that had a Medicare debt that existed when the latter’s enrollment was voluntarily terminated, involuntarily terminated or revoked AND

·   The owner left the provider or supplier that had the Medicare debt within 1 year of that provider or supplier’s voluntary termination, involuntary termination, or revocation;

·   The Medicare debt has not been fully repaid; AND

·   CMS determines that the uncollected debt poses an undue risk of fraud, waste or abuse.

There are terms under which the provider, supplier or owner thereof can avert the denial, including repaying the debt in full, or agreeing to a repayment schedule for the entire debt if the provider meets the criteria for an extended repayment schedule provided by 42 C.F.R. §401.607.

 

To illustrate how this rule may be applied, consider the following example.  Provider ABC is owned by Owner X.  ABC terminates its enrollment in Medicare.  At the time of the termination, ABC had an outstanding Medicare debt.  Owner X leaves ABC less than a year after the termination.  Thereafter, as long as ABC’s debt remains unpaid, Owner X may be excluded from participating in Medicare, either as a provider or supplier or as an owner thereof, if CMS determines that the outstanding debt poses an “undue risk of fraud, waste or abuse.”  It is not clear from the rules what CMS considers to constitute an “undue risk”, and whether that is based on a dollar figure, or some other criteria.  Owner X may avoid denial if he/she agrees to a repayment schedule for the debt, or pays the debt in full. 

The new rule also expands the bases on which CMS can deny enrollment or revoke billing privileges based on prior felony convictions.  Under the prior rule, CMS could deny enrollment to any provider, supplier or owner who was convicted of a state or federal felony in the prior 10 years.   The new rule expands that to include “managing employees”. 

CMS can now revoke Medicare billing privileges if the provider or supplier has a “pattern or practice of submitting claims that fail to meet Medicare requirements”, including the requirement that the service be reasonable and necessary.  Many commenters to the proposed rule suggested that the provision was arbitrary and subjective, granting too much discretion to CMS.  CMS responded by stating that “sporadic billing errors would not result in revocation”.  CMS does not define “pattern or practice”, but listed several factors that would be considered, including:  (1) percentage of submitted claims that were denied; (2) total number of claims denied; (3) the reason(s) for the claim denials; (4) whether there is a history of final adverse actions; (5) the time period over which the pattern has continued; and (6) how long the provider has been enrolled in Medicare.  With respect to factors (1) and (2), CMS declined to establish objective numerical thresholds. 

The new rule also provides that revoked providers must submit all remaining claims within 60 days after revocation.  Revoked providers and suppliers may now only submit a corrective action plan where the revocation was based on noncompliance with the enrollment requirements, or the enrollment application.  In other words, a revocation based on provider or supplier conduct is no longer eligible for a corrective action plan.

The new rule goes into effect on February 3, 2015.

Physical Therapists’ Board Proposes Telehealth and Dry Needling Regulations

Written by Joanne Ceballos 
In August of this year Governor Markell signed a bill overhauling Chapter 26 of Title 24 relating to the practice of physical therapy and athletic training.  Among other things, the legislation expanded the scope of practice to include telehealth and dry needling.   Further to the legislation, the Examining Board of Physical Therapists and Athletic Trainers has proposed regulations regarding standards and requirements for the practice of telehealth by physical therapists, athletic trainers, and physical therapist assistants, as well as prerequisites for the performance of dry needling by physical therapists.  Proposed Regulation 14.0 restates the statutory definition of “telehealth” as “the use of electronic communications to provide and deliver a host of health-related information and health-care services, including physical therapy and athletic training-related information and services, over large and small distances.  Telehealth encompasses a variety of health care and health promotion activities, including education, advice, reminders, interventions, and monitoring of interventions.”  The proposed regulation provides that a Delaware-licensed physical therapist, athletic trainer or physical therapist assistant may conduct a telehealth session with a patient who is located in Delaware at the time of the session after obtaining the patient’s written informed consent specifying at a minimum the risks and limitations of the use of electronic communications in the provision of care, the potential disruption of electronic communication during the telehealth session, and the potential for breach of confidentiality of protected health information using electronic communications.  The proposed regulation requires the licensee to “ensure that the electronic communication is secure to maintain confidentiality … as required by HIPAA and other applicable Federal and State laws.”  Finally, the proposed regulation specifies that all evaluations (initial, reevaluations, discharge), and every other supervisory visit, must be performed in person as opposed to via telehealth.    

Proposed regulation 15.0 related to dry needling quotes the statutory definition, i.e., "an intervention that uses a thin filiform needle to penetrate the skin and stimulate underlying muscular tissue, connective tissues and myofascial trigger points for the management of neuromusculoskeletal pain and movement impairments; is based upon Western medical concepts; and requires a physical therapy examination and diagnosis," and clarifies that dry needling is not within the scope of practice of  athletic trainers, physical therapy assistants or physical therapy aides.  To perform dry needling, a physical therapist must have no less than two years of active clinical experience as a PT and must complete 54 hours of in-person dry needling education in a Board-approved program (PTs who have completed 25 hours of such education at the time the regulation is enacted may continue to practice dry needling but must complete the required 54 hours of education within two years).  The proposed regulation requires a physician’s referral specific for dry needling, specifies the minimum contents for written informed consent (which must include the PT’s “level of education regarding supervised hours of training in dry needling”), and addresses documentation requirements. 

A complete version of the proposed regulations can be viewed by clicking here. 

A public hearing on the proposed regulations will be held on January 27, 2015 at 4:30 p.m. in the second floor conference room A of the Cannon Building, 861 Silver Lake Boulevard, Dover, Delaware.  Written comments may be submitted to Sandra Wagner, Examining Board of Physical Therapists and Athletic Trainers, 861 Silver Lake Boulevard, Dover, Delaware 19904, by February 11, 2015.