New enrollment provisions overreach, attorneys say

BALTIMORE - Broad new enrollment provisions required by the Affordable Care Act could put HME providers at greater risk of losing their Medicare billing privileges, say industry attorneys.

“(CMS has established) very nebulous criteria for taking really devastating action against providers,” said Elizabeth Hogue, a private practice attorney in Burtonville, Md. “It's very scary.”

The provisions, released this month, allow CMS and its contractors to deny the enrollment of providers and owners affiliated with an entity that has unpaid Medicare debt; deny the enrollment or revoke the billing privileges of a provider if a managing employee has been convicted of certain felony offenses; and revoke billing privileges of providers that have a pattern or practice of billing for services that do not meet Medicare requirements.

That last provision really prickles industry attorneys. With contractors routinely denying claims for technical reasons and a huge backlog in the appeals process, providers could be unfairly penalized, they say.

“So many of the appeals are overturned,” said Edward Vishnevetsky, an associate at Munsch Hardt Knopf & Harr. “If they are now able to take away your billing practices based on this, I think that's a violation of due process.”

Attorneys also take issue with the lack of definition for debt in the provision denying the enrollment of providers affiliated with unpaid Medicare debt.

“Does it become a debt the minute the appeals process is exhausted? asked Hogue. “Or is it a debt when the contractor says you were overpaid?”

Here, too, the appeals backlog could result in unfair penalties against providers, says Vishnevetsky. If a provider is in the middle of an appeal and is having its ongoing claims recouped, it may decide to transfer existing patients to another company so it can continue to provide care to them.

“Providers still need to be doing something to make money, said Vishnevetsky. “If there's nothing more to recoup—if you are not satisfying your debt—you may not be able to have an ownership interest in anything else.”