February 28, 2020 | By Daniel F. Shay, Esq.
Facing the mounting pressure of demographics, the Medicare system looks to slow the outflow of money however it can. One of the chief targets of these efforts is the process by which providers obtain Medicare billing privileges (“enrollment”). Without being enrolled in Medicare, a provider cannot submit claims to Medicare. Once a provider does obtain billing privileges, though, they must keep their enrollment information up-to-date or risk losing those privileges. However, many providers do not understand their obligations with respect to updating their data.
Medicare’s enrollment rules generally require that most changes to enrollment information be reported within 90 days. However, changes to a provider’s location, ownership structure, or adverse legal actions must be reported within 30 days. This may be done using CMS’ 855 series of forms or using Medicare’s online enrollment system – the Provider Enrollment, Chain, and Ownership System (PECOS).
If a provider fails to update their information, they may have their billing privileges deactivated or revoked. Deactivation means that new claims for services after the date of deactivation will not be paid, although the provider may submit updated information and reactivate their billing privileges. By contrast, revocation bars the provider from reapplying for billing privileges from anywhere between one and ten years, although the length depends on the reason for revocation. To further complicate matters, Medicare’s formal appeals process can be used to fight revocations, but not deactivations. In other words, if your billing privileges are deactivated, you have no way to appeal the decision.
Maintaining up-to-date records often proves difficult for providers. However, there are common mistakes and reporting failures that providers can learn to avoid. For example, when a practitioner leaves a practice, that practice should terminate the practitioner’s reassignment of their right to payment within 90 days of the practitioner’s departure. If the practice fails to do so, a host of problems may follow. First, the failure to report the change itself could result in a deactivation of billing privileges, usually until updated information is reported. During that time, however, the practice will be unable to submit claims to Medicare, and the claims themselves could end up becoming unbillable (in which case, the practice must absorb the losses). Billing errors could lead to services being submitted under the now-departed practitioner’s billing number, which could necessitate voluntary repayments for the improperly billed services. In addition, if the practitioner has an adverse legal action, the practice could again lose its billing privileges for failure to report the adverse legal event – a scenario that actually happened to a client of ours.
Other changes such as changes in ownership (e.g., adding or removing a partner), or adding or removing a managing employee can trigger even tighter reporting timeframes (in the two scenarios referenced, 30 days). These changes also require reporting additional information about new owners and managing employees, such as their own individual adverse legal histories. Aside from these requirements, CMS may require providers to “revalidate” their enrollment data periodically, which means they must submit information as if they were enrolling for the first time. Revalidations typically occur once every 5 years, but CMS can also require more frequent “off-cycle” revalidations. When CMS makes such a request, the revalidation must be completed within 90 days of the request.
In some instances, providers neglect to file a revalidation because their enrollment data was out-of-date. One need only look at records for CMS’ Administrative Law Judges (ALJs) and the Departmental Appeals Board (DAB) to find examples of providers who failed to submit a timely revalidation because the notices to revalidate were sent to old addresses where the providers no longer operated. In these cases, had the providers removed old mailing addresses and ensured that their current address was listed in their enrollment information, they would have received the revalidation request in time to respond. But because their information was inaccurate, they missed their deadlines and had their billing privileges deactivated.
As mentioned earlier, deactivations are not subject to review by the ALJs or the DAB – both entities are part of CMS’ formal appeals process – because deactivations cannot be appealed. Both the ALJs and the DAB remain inflexible on this issue, as well as on other issues surrounding the interpretation of regulations. No allowance is made for fairness in the decisions of the ALJs or DAB; the only consideration is whether the precise requirements specified by the applicable regulations were met. In addition, the ALJs and DAB almost always defer to CMS. Thus, for example, if a provider claims to have submitted enrollment data via paper 855 forms to their local Medicare Administrative Contractor (MAC), and the MAC claims to have never received the enrollment data, the ALJs and DAB will take the MAC at its word – even if there is delivery confirmation evidence that the mailing was delivered to the MAC. With all of this in mind, it is better to avoid the appeals process altogether by ensuring that enrollment information is always being updated on a regular basis.
To this end, providers should consider appointing individuals who are tasked with maintaining enrollment information. These individuals should be exceptionally knowledgeable about the requirements for enrollment, especially with regard to the deadlines for reporting data and the events that trigger reporting obligations. In addition, providers should coordinate with knowledgeable legal counsel to review enrollment submissions before submitting them and to help navigate the enrollment process.