AMARILLO, TX – What is the correct response to a letter from Provider Enrollment stating that the DME supplier’s PTAN is being revoked? The answer depends on the circumstances. There are two main responses that a supplier should consider in response to a PTAN revocation: (1) file a corrective action plan (“CAP”) or (2) file a reconsideration request. These two options are substantively different, and present two separate paths to a resolution. A DME supplier should not treat the two options as the same, and it should prepare a response appropriate to the circumstances. In short, a CAP corrects the problems, while a reconsideration request argues that there is no problem.
1) Corrective Action Plan (“CAP”) – Fixing The Problem
A CAP is an opportunity to fix the problems that led to a revocation. A CAP must be submitted within 35 days of the date of a revocation letter and it must contain verifiable evidence that the supplier is in compliance with Medicare requirements. A CAP is not to be used to challenge the basis for a revocation. A CAP is to be used only if the supplier is capable of fixing the problems that led to the revocation.
For example, for a DME supplier that is alleged to have failed to produce evidence that it honors all warranties, a valid corrective action is producing the supplier’s warranty policy. Or, if a DME supplier is alleged to have violated the Supplier Standard that requires it to maintain a permanent sign visible to the public, a valid corrective action is installing a sign, or improving a sign, to meet the Supplier Standard.
When preparing a CAP, suppliers must address and correct all of the deficiencies that led to the revocation. A revocation letter may not provide all information that the supplier needs to correct the deficiencies that led to the revocation. The supplier may receive development requests from an enrollment contractor via email that requests specific information that may not be mentioned in a revocation letter. In that case, the supplier must address the specific deficiency that is cited in the development request in addition to those cited in the revocation letter. A failure to correct all deficiencies underlying a revocation precludes a favorable decision on a CAP.
In a similar vein, DME suppliers need to be aware of their mail and e-mail correspondence addresses as reported on their enrollment applications and profiles. Enrollment contractors often times email or mail important documents related to a revocation decision to suppliers, and suppliers are held responsible for the accuracy of their addresses as reported to Medicare. The failure to be aware of deficiencies because of overlooked, lost, or missing communications falls on the DME supplier.
A decision on a CAP is supposed to be made within 60 days of receipt. Unfortunately, it is common for decision makers to take more than 60 days to make a decision. In that instance, impacted suppliers should contact CMS to notify it of the delay, and to request prioritization of the pending CAP. Ordinarily, CMS will direct responsible parties to prioritize the decision, and a decision on the CAP will be rendered in a timely fashion.
An unfavorable decision on a CAP leaves DME suppliers with one path to a favorable resolution: a reconsideration request. Alternatively, suppliers can wait until their re-enrollment bar is lifted and try again. Importantly, in the case that a supplier waiting until the re-enrollment bar is lifted, the supplier will still be required to comply with Medicare requirements upon re-enrollment, so the supplier will still need to address any deficiencies underlying a revocation regardless of whether it filed a CAP or reconsideration.
2) Reconsideration request – There Is No problem
A reconsideration request is the supplier’s opportunity to prove that there was an error made by Provider Enrollment at the time of the revocation. Stated differently, a reconsideration request is the supplier’s opportunity to argue that the revocation decision was wrong, as opposed to arguing that the supplier has come into compliance with the requirements. A reconsideration request must be submitted within 65 days of the initial decision, and it must state the issues, or findings of fact, with which the supplier disagrees, and the reasons for disagreement.
For example, it is common for Provider Enrollment inspectors to apply the wrong standards to a supplier with more than one Medicare enrollment or line of business, such as an Independent Diagnostic Testing Facility that is also enrolled as a portable x-ray supplier. In that situation, an inspector might not be aware of the supplier’s two enrollments and lines of business, or the distinction between the enrollments and lines of business. As a consequence, an inspector may make a wrong decision by revoking enrollment. In that case, the correct response is to file a reconsideration request and argue that the decision was wrong at the time it was made because the inspector applied the wrong standards.
A DME supplier needs to be prepared to file a reconsideration request regardless of whether it files a CAP since the time to submit a reconsideration request runs concurrently with the time to submit a CAP. Stated differently, a supplier is required to file a reconsideration request within 65 days of the revocation letter regardless of whether the supplier has filed a CAP. A failure to file a reconsideration is deemed a waiver of all rights to further administrative review. As a result, a supplier needs to be prepared to file a reconsideration regardless of whether it has filed a CAP or risk the loss of all further administrative review rights.
If a DME supplier receives an unfavorable reconsideration decision, it can file an appeal with an administrative law judge (“ALJ”). The ALJ reviews whether the initial decision to revoke enrollment was legally valid. If a supplier receives an unfavorable ALJ decision, it can request a review by the Department Appeals Board (“DAB”). Lastly, a supplier can seek judicial review of the revocation if the DAB provides an unfavorable decision.
Ultimately, there are substantive differences between a CAP and a reconsideration request. A CAP should be used when a DME supplier corrects a problem, while a reconsideration request should be used when there is no problem. Suppliers whose billing privileges have been revoked should understand this distinction and prepare an appropriate response in consideration of the circumstances.
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].
Jordan T. Vogel, JD, is an attorney with the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers and other health care providers throughout the United States. Vogel can be reached at (806) 345-6351 or [email protected].
AAHOMECARE’S EDUCATIONAL WEBINAR
Negotiating Managed Care Contracts
Presented by: Jeffrey S. Baird, Esq., Brown & Fortunato & Laura Williard, American Association for Homecare
Tuesday, November 5, 2024
1:30-2:30 p.m. CENTRAL TIME
Approximately 50% of Medicare beneficiaries are signed up with Medicare Advantage Plans (“MAPs”), while approximately 70% of Medicaid beneficiaries are signed up with Medicaid Managed Care Plans (“MMCPs”). These percentages are increasing. MAPs and MMCPs work essentially the same way: (i) the government health care program contracts with a “Plan” that is owned by an insurance company; (ii) the Plan signs up patients; (iii) the Plan signs contracts with hospitals, physicians, DME suppliers and other providers; and (iv) the government program pays the Plan that, in turn, pays the providers. In order to serve MAP and MMCP patients, DME suppliers must sign managed care contracts. In so doing, the supplier needs to be careful. Not only must the contract provide sufficient reimbursement to the supplier, but the contract will have some “trap” provisions that may be harmful to the supplier. This program will discuss the most important provisions that are contained in managed care contracts, such as covered services, medical necessity, passive amendments, incorporation of collateral documents, set-off, remedy for delay in payment, and payment forfeiture for late claims. The program will discuss how the supplier can negotiate with Plans; and the discussion will point out the provisions that are often non-negotiable and the provisions that are open to negotiation.
Register for Negotiating Managed Care Contracts on Tuesday, November 5, 2024, 1:30-2:30 p.m. CT, with Jeffrey S. Baird, Esq. and Laura Williard.
Members: $99
Non-Members: $129
