Proposed changes for surety bonds: Counter abuses to the program, or place too heavy burdens on providers?

On March 1, 2016, CMS published a proposed rule that seeks to address a growing number of abuses of the federal healthcare program by certain Medicare providers. The rule* titled “Medicare, Medicaid, and Children's Health Insurance Programs; Program Integrity Enhancements to the Provider Enrollment Process” includes a number of provisions that directly concern providers and suppliers of Medicare.

These include an increase in requirements for disclosure of affiliations by providers, greater CMS authority to deny Medicare enrollment, and changes to reenrollment and reapplication bars, as well as greater CMS authority in relation to approving or rejecting the Medicare surety bond of a provider.

Requirement to disclose affiliations and events

Under the new rule, providers who seek to enroll for Medicare or revalidate their enrollment will be required to disclose former or current affiliations with individuals who have or have had a "disclosable event". An affiliation is considered:

. direct or indirect ownership interest of 5% or more in another organization

. partnership interest in an organization;

. role as officer or director in a corporation

. any form of managerial or operational authority at another organization

. a reassigned relationship as defined under 42 CFR � 424.80 (Code of Federal Regulations).

Events that prompt the need for providers to disclose affiliations with such individuals include:

. individuals' uncollected debt to Medicaid, Medicare or the Children's Health Insurance Program (CHIP)

. individuals' denial of participation in Medicare, Medicaid, or CHIP

. cases of payment suspension under any federal health program at any time

. revocation or termination of such indviduals' enrollment to any of the above programs.

Increased CMS authority over Medicare enrollment

The rule also provides for greater CMS authority when determining who should be allowed to enroll as a provider of these services. It lists a number of criteria that CMS will utilize in assessing enrollments and deciding whether something constitutes a serious risk.

If a provider does not disclose all such events and affiliations in their entirety, for example, CMS may deny them their enrollment or even revoke it. CMS may further do so if it considers that any of the affiliations or events pose a substantial risk to the integrity of federal health programs. A number of other instances in which CMS may deny, revoke or terminate an enrollment are also listed.

Changes to reenrollment and reapplication bars

As a further measure against system abuses, the rule also proposes a number of significant changes to Medicare reenrollment bars. One of them would be to increase the maximum amount of years of reenrollment bars from three to 10. CMS has said, though, that the maximum "would be reserved for egregious cases of fraudulent, dishonest or abusive behavior."

Under the rule an additional reenrollment bar of a further three years (even when exceeding the maximum) would be placed on those individuals who attempt to circumvent an already existing reenrollment bar that they are subject to.

Finally, a 20-year reenrollment bar is envisioned for those providers who have their enrollment revoked for a second time.

CMS also proposes an increase in reapplication bars to a maximum of three years in instances where applications include false or misleading information or provide information selectively.

Increased CMS authority to reject DMEPOS bonds

One of the important provisions of the rule is that it provides for greater CMS authority in rejecting providers' Medicare surety bonds. This would apply to instances in which a provider's surety has failed to submit a payment to the CMS as part of the surety bond requirement.

According to the proposal, in these instances the supplier would have to obtain a new DMEPOS bond by a different surety to keep their enrollment or to be able to apply for one.

Under the rule, CMS could also reject all bonds by a surety, even those supplied by an unrelated provider, if the surety fails to fulfill its obligations. A caveat to this rule does include that CMS may investigate the circumstances and the reason for failure to pay before rejecting a particular bond or all bonds issued by that surety.

Welcome amendments?

As a Medicare provider, what do you think of the proposed rule? Do you see it as a way to counter abuses to the program or do you think it places too heavy burdens on providers? Let us know in the comments, we'd love to hear your thoughts.