Appealing a CMS Preclusion List Decision

Our healthcare and business law firm represents healthcare practitioners, including physicians, mid-level providers, and chiropractors, who are faced with adverse actions from the Centers for Medicare and Medicaid Services (“CMS”) or the relevant Medicare Administrative Contractor (“MAC”).  Once such adverse action is placing an individual or entity on the CMS Preclusion List, which is a list of individuals and entities who are not allowed to receive payment for services provided to Medicare beneficiaries enrolled in Medicare Advantage plans, as well as for Part D prescription drugs prescribed.  This is distinct from CMS’s Exclusion List.  CMS can place individuals and entities on the CMS preclusion list for many reasons specified in 42 C.F.R. 422.2, and, for individual suppliers, 42 C.F.R. § 423.100.  If you would like to discuss appealing an adverse CMS decision, including a decision to add an individual or entity to the Preclusion List, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.

Who Can Be Added to the CMS Preclusion List?

Under 42 C.F.R. § 422.2, CMS may add an individual or entity to the Preclusion List if they are “currently revoked from Medicare for a reason other than [a felony under 42 C.F.R. § 424.535(a)(3)],”  “under a reenrollment bar,” and “CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.”  The regulations include factors that CMS may consider to determine whether it is detrimental to the best interests of the Medicare program.  Those factors are:

(A) The seriousness of the conduct involved;

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program; and

(C) Any other evidence that CMS deems relevant to its determination[.]

CMS may also add an individual or entity to the Preclusion List if they engaged in behavior that could have led to a revocation (except for a felony under 42 C.F.R. § 424.535(a)(3)) and “CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interest of the Medicare program.”  The factors CMS will consider in determining whether the conduct is detrimental are the same factors as identified above.

Additionally, CMS may add an individual or entity to the Preclusion List if they have “been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interest of the Medicare program.”  Factors CMS will consider are:

(i) The severity of the offense;

(ii) When the offense occurred; and

(iii) Any other information that CMS deems relevant to its determination.

Can the Decision be Appealed?

If CMS or the relevant MAC decides to add an individual or entity to the Preclusion List, they will notify the individual or entity by letter (“Notice Letter”).  If no appeal is submitted, called a “Reconsideration Request,” the individual or entity will appear on the Preclusion List 65 days after the date identified on the Notice Letter.  The individual or entity can submit a Reconsideration Request to CMS requesting that CMS reconsider the decision.  If the Notice Letter also states that the individual’s enrollment is revoked, typically, the individual or entity will file a Corrective Action Plan (“CAP”), if proper, and Reconsideration Request for that underlying decision.  Note that a CAP must be submitted within 35 days of the date on the Notice Letter.

In determining whether to ask CMS to reconsider its decision to add an individual or entity to the Preclusion List, two main approaches to consider are as follows:

• First, is the Preclusion List decision appropriate in the first place under the regulations (meaning, have all the regulatory requirements been met for CMS or the MAC to make this decision)?
• Second, if the decision is appropriate under the regulations, are there factors to support that the underlying conduct is not detrimental to the best interest of the Medicare program?

There may be additional arguments that counsel may determine appropriate to consider in a specific situation.  Given the importance of Medicare enrollment matters, we recommend engaging counsel familiar with Medicare regulations and processes.

If you would like to discuss appealing an adverse CMS decision, including Preclusion List decision, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.

*Disclaimers: Thoughts shared here do not constitute legal advice nor do they form an attorney-client relationship.  All digital presentations by our firm or its attorneys are provided as a public informational resource.  Although intended to be correct and up to date as of the date posted, we cannot guarantee the accuracy of posted information, especially as it relates to individual situations.  We do not routinely update such information.  To determine up-to-date information about the subject matter of this information and proper application to a specific situation, it is important that you consult your healthcare attorney.  Our communications of information through the Internet shall not constitute “presence,” “doing business” or the practice of law in any location, even when a specific state or its laws/rules are referenced.  Our firm maintains offices in Georgia and no other state. Our attorneys are licensed in some, but not all, states.  For each client engagement we accept, our firm undertakes best efforts to ensure we are aware of and adhere to applicable jurisdictional requirements, which may include reviewing local rules, conducting relevant research and collaborating with, or referring a matter to, a local attorney.