Yesterday, the Centers for Medicare and Medicaid Services (“CMS”) issued a lengthy proposed rule designed to identify and punish healthcare providers that attempt to evade Medicare rules and regulations by hiding or changing their Medicare identity.  If finalized, the new rule would impose additional disclosure obligations on Medicare providers in order to cull out those that enroll in Medicare, “accumulate large debts or otherwise engage in inappropriate activities, and depart the Medicare program voluntarily or involuntarily, yet continue their behavior by—(1) reentering the program in some capacity (for instance, as an owner); and/or (2) shifting their activities to another enrolled Medicare provider or supplier with which they are affiliated.”  More specifically, CMS is looking for those providers and suppliers who “engage in inappropriate billing, exit Medicare prior to detection, and then change [their] name or business identity in order to reenroll in Medicare under this new identity.”

The current Medicare provider enrollment form (Form CMS-855) asks prospective providers to disclose identifying data (for example, legal business name), addresses and phone numbers for all practice locations, and the provider’s or supplier’s owning and managing employees and organizations.  However, CMS noted the enrollment form’s limitations in that it “does not collect data about prior affiliations or about entities in which the provider or supplier (or its owning or managing individuals or organizations) has or had an interest.”  As such, the proposed rule would change Form CMS-855 to require disclosure of such affiliations and prior interests.  The new term “affiliations” will include a 5 percent or greater ownership interest in another provider, any level of partnership interest in another provider, any operational or managerial control over another provider, and a role as an officer or director at another provider.

Moreover, in determining whether a provider is really just an ousted provider looking to skirt the exclusion rules by reenrolling under a different name, CMS will look for “degrees of commonality” by assessing the following factors:

  • Owning and managing employees and organizations, regardless of whether they have been disclosed on the Form CMS-855 application;
  • Geographic location (for example, same city or county);
  • Provider or supplier type (for example, same provider type);
  • Business structure;
  • Any evidence indicating that the two parties are similar or that the provider or supplier was created to circumvent the revocation or the reenrollment bar.

Additionally, CMS proposes to increase the maximum reenrollment bar from three (3) years to ten (10) years, unless an exception applies.  Likewise, the new rule would prohibit a provider or supplier from enrolling in Medicare for up to three (3) years if its enrollment application is denied due to the submission of false or misleading information in the enrollment application.

This proposed rule is open for public comment, which must be received no later than close of business on April 25, 2016.

The attorneys at Chilivis Grubman work with healthcare providers of all types and sizes in connection with all facets of healthcare regulatory compliance and litigation, including enrollment, exclusion, and revocation matters.  For any questions, or if we can assist you in connection with a healthcare regulatory or compliance issue, please contact us at (404) 262-6505 or