Date: April 3, 2020Attorney: Mohamed H. Nabulsi

April 3, 2020
By Mohamed H. Nabulsi

As part of its arsenal to combat what the Centers for Medicare and Medicaid (“CMS”) consider to be billing fraud, CMS, directly and through its contractors, is authorized to suspend a Medicare provider’s payments during the pendency of CMS’ audit/investigation of the provider (so that CMS is able to ensure the existence of funds from which it can collect any and all overpayments to the provider), as well as impose a prepayment review process on the provider to ensure that CMS is able to more easily detect documentation, coding and billing errors (“Billing and Coding Errors”), on a claim-by-claim basis, instead of paying the provider on potentially-erroneous claims and later chasing the provider to collect amounts it has paid them on account of such claims.

While the intent behind payment suspension and prepayment reviews (“Program Integrity Measures”) may be pure, these Program Integrity Measures are commonly applied against providers without a valid legal basis, including in instances where the CMS contractor bases its allegations of fraud on (i) Billing and Coding Errors that arise from the lack of, inconsistent, vague and/or ambiguous guidance, (ii) a review of charts in isolation (without reference to records that include the relevant medical necessity indicators that may fall out of the audit period, and without requesting these records from the provider), or (iii) documentation deficiencies that do not support a finding that the applicable service was not rendered or was exaggerated, but, rather, that are mere technical omissions (e.g., failing to document the start and stop time of a modality). The Program Integrity Measures can wreak havoc on a practice/healthcare facility, and may even lead to their financial demise. It normally requires a herculean effort to cause CMS/its contractors to terminate these measures before they run their course.

One of our clients was the target of the Program Integrity Measures, and suffered greatly as a result thereof. Significantly, they were not able to as vigorously fight on the front lines of the COVID-19 battle because of the lack of resources attributable to the application of the Program Integrity Measures. To extricate our client from their unsustainable financial predicament that threatened to disenfranchise thousands of patients, we utilized a new waiver that was recently activated by the government as part of its effort to overcome the COVID-19 Pandemic. Specifically, CMS recently activated a waiver that requires its contractors to exercise flexibility in connection with provider appeal rights as if “good cause” exists to grant a provider’s appeals. In our client’s case, we argued, in our petition to the CMS contractor that, given the COVID-10 Pandemic and the government’s monumental interest in overcoming the same, the contractor is legally required to find that “good cause” exists to terminate the Program Integrity Measures. After receipt of our petition, the CMS contractor agreed with our position and terminated the Program Integrity Measures based on a finding of “good cause”, as required by the aforementioned waiver.

If you are the subject of any Program Integrity Measures or similar measures (including, without limitation, Medicaid disqualification/debarment, Medicare exclusion/revocation, etc.), right now may be the most opportune time for you to seek the termination thereof. Please contact us with any questions at