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Revoked: CMS's New Take on Record Retention and Access
September 18, 2017
Recently, we have noticed an alarming increase within the Spilman footprint of revocations by the Centers for Medicare & Medicaid Services ("CMS") of physicians' Medicare billing privileges. In particular, CMS has been targeting physician suppliers of home health services for an alleged failure to maintain and produce to CMS documentation of ordered or certified home health services. Not only does CMS appear to be targeting certain physicians, but the revocations have resulted from requests for documentation that could easily be mistaken for different types of requests for documentation. Moreover, CMS has drawn a hard line with respect to requests for reconsideration of such revocations, refusing to accept supplemental document productions as a cure for an earlier allegedly incomplete document production. CMS is also imposing the maximum penalty for the alleged failure, even though the regulations make the penalty discretionary rather than mandatory.
The requirement to maintain and produce home health records was added to the Medicare regulations in 2012 pursuant to the Affordable Care Act: "[a] provider or a supplier that furnishes covered ordered items of [durable medical equipment, prosthetics, orthotic, and supplies ("DMEPOS")], clinical laboratory, imaging services, or covered ordered/certified home health services is required to . . . (A) [m]aintain documentation . . . for 7 years from the date of service; and (B) [u]pon the request of CMS or a Medicare contractor, to provide access to that documentation . . . ."  The regulation describes the type of documentation to be maintained as follows: "written and electronic documents (including the [National Provider Identifier ("NPI")] of the physician who ordered/certified the home health services and the NPI of the physician or, when permitted, other eligible professionals who ordered the items of DMEPOS or the clinical laboratory or imaging services) relating to written orders or certifications or requests for payments for items of DMEPOS and clinical laboratory, imaging, and home health services."  Under the regulations, CMS may revoke the Medicare billing privileges of an enrolled provider or supplier and the corresponding provider or supplier agreement if the provider or supplier fails to document or to provide CMS access to documentation that must be maintained pursuant to the foregoing regulation. The maximum revocation period for such a failure is one year and is discretionary. 
Spilman currently has multiple physician clients who have been unfairly targeted by CMS in the manner described above. Each received a relatively benign document request from CMS; each responded; and then months later, each received a revocation letter, citing alleged deficiencies in each doctor's response, focusing specifically on an alleged failure to provide home health care records. Spilman was recently able to obtain a temporary restraining order in federal court for one such physician client. The judge who issued the order cited due process problems under the United States Constitution as the basis for the injunctive relief he granted. The temporary restraining order prevents CMS from revoking that doctor's Medicare billing privileges until CMS demonstrates it has provided sufficient due process to the doctor.

If you or one of your employees has received a notice of revocation of your or their Medicare billing privileges, or if you have any questions about how to respond to a request from CMS for medical records, please contact us
Labor & Employment Law Brienne T. Marco