CMS Addresses ‘Recalcitrant’ Providers

Effective January 15, the Centers for Medicare & Medicaid Services (CMS) announced in Transmittal 475, their intention to penalize ‘recalcitrant’ providers who are noncompliant with CMS rules. CMS defines a recalcitrant provider as “a provider that is a abusing the program and not changing inappropriate behavior even after extensive education by Medicare contractors to address these behaviors”.

Contractors who believe they have a recalcitrant provider case are to report the case to their Contracting Officer’s Representative and the CMS Center for Program Integrity Fraud and Abuse Sanctions and Suspension Team.

Contractors may use the following criteria to determine recalcitrant behavior:

  • The provider is not currently under fraud investigation.
  • The provider is currently on prepayment medical review and after education continues to have a pattern of inappropriate behavior without any improvement. The contractor has documented the administrative burden and costs associated with increased review.
  • The denied claims appeal history has a low reversal rate.
  • The Medical Director agrees with the medical review determinations and knows they may be called as a witness.

The approval or disapproval will be made based on the following:

  • The specific medically unnecessary or uncovered services being provided and billed;
  • The grounds for these services/items being medically unnecessary or uncovered;
  • The education given to the provider to correct the behavior;
  • The description of how the behavior continued to have a pattern of inappropriate behavior after the education;
  • The appeal history; and
  • Expert testimony (Medical Director)

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