CMS Proposed Physician Fee Schedule Calls for Revoking Medicare Billing Privileges to Clinicians with Prior State and IRO Actions

CMS’ proposed 2020 Medicare Physician Fee Schedule includes substantial changes to the rules for obtaining and maintaining Medicare billing privileges. A one-paragraph statement in the proposed rule calls for applying Medicare enrollment approval and revocation rules for opioid treatment programs to all physicians and other eligible professionals. The proposal would allow CMS to revoke Medicare billing privileges for physicians, advance practice nurses and others for a variety of reasons. Comments on the proposed rule are due by 5:00 p.m. on September 27, 2019.

Proposed Rule

If finalized, the rule would allow CMS to revoke the Medicare billing privileges of any physician who has “been subject to prior action from a state oversight board, federal or state health care program, Independent Review Organization (IRO) determination(s), or any other equivalent governmental body or program that oversees, regulates, or administers the provision of healthcare with underlying facts reflecting improper physician or other eligible professional conduct that led to patient harm.”

According to the proposed rule, CMS is concerned that state boards may choose to “impose a relatively minor sanction on a physician or other eligible professional for conduct that we deem more serious.” CMS announced that it, “rather than state boards, is ultimately responsible for the . . . protection of its beneficiaries.” CMS wants to be empowered with the “discretion to . . . determine whether, in the agency’s view, the physician’s or other eligible professional’s conduct warrants revocation or denial,” even when CMS has not been involved in the licensing board disciplinary process to evaluate the genesis of the complaint, the truth of the allegations, and the reasoning to settle, often with admission of wrongdoing.

CMS claims it will not automatically revoke billing privileges or deny enrollment based on “very modest sanction[s],” and states it would  “only take such a measure after the most careful consideration” of the “nature of the patient harm,” “the nature of the physician’s or other eligible professional’s conduct” and the “number of type(s) of sanctions or disciplinary actions” imposed. CMS will consider several factors, including the nature of the IRO determination(s), required compliance appearances before State oversight board members, license restrictions pertaining to procedures or practices, formal reprimands, and/or any other information that CMS deems relevant to its determination.