CMS Sharpens Weapon to Kick 'Problematic' Docs Out of Medicare

Kerry Dooley Young

November 07, 2019

Federal officials are expanding their ability to revoke or deny clinicians' participation in Medicare, claiming new authority to bar those who have harmed patients.

Starting January 1, 2020, the giant federal health program will have new power to bar clinicians' participation if agency officials can cite potential harm to patients based on specific incidents, the Centers for Medicare & Medicaid Services (CMS) said.

According to CMS, the agency at this time has no pathway to address what it calls "demonstrated cases of patient harm" in cases where clinicians maintain their licenses.

CMS created a new pathway for revocation through the 2020 Medicare physician fee schedule. CMS last week finalized this wide-ranging physician fee schedule, a rule approaching 2500 pages long. It also contains an overhaul of coding for evaluation and management services, as reported by Medscape Medical News.

Rule "Vague and Subjective"

But also tucked into the rule was the expansion of Medicare's revocation authority, a proposal that was unpopular with physician organizations. It drew criticism from the American Medical Association (AMA) and many other groups.

The Alliance of Specialty Medicine, which includes the American Association of Neurological Surgeons, said CMS has been using "vague and subjective" criteria to evaluate physicians for some time. The new revocation authority "just compounds the problem," the Alliance told Medscape Medical News in an emailed statement.

"While we appreciate CMS' acknowledging some of our comments in the newly finalized criteria, the Alliance continues to have concerns with the final policy given the far-reaching consequences associated with denial or revocation of participation in Medicare," the group writes.

CMS is going ahead with the expansion of revocation authority even after many organizations, including the AMA, asked it to drop or delay this proposal. But the agency did try to address objections, said Pamela A. Oliver, MD, MSPH, president of the Virginia-based Novant Health Physician Network.

"While CMS did not delay the implementation of this policy as we requested in our comments, we are pleased to see the agency addressed some of the concerns raised by commenters," Oliver said in a statement emailed to Medscape Medical News.

In the final rule, for example, CMS sought to assuage concerns about whether the expansion of revocation authority would discourage clinicians from seeking treatment for their own mental health issues. It gave these three examples to show when the new authorities would — and would not — kick in:

  1. In a case involving patient harm, a state oversight board requires Dr X to enter a rehabilitation program. There are no other sanctions in the state's order. Since the state's action is restricted exclusively to rehabilitation, Medicare's new revocation authorities, known as § 424.530(a)(15) or § 424.535(a)(22), would not apply.

  2. In a case not involving patient harm, a state oversight board issues a decision pertaining to Dr X that: (1) requires the physician to enter a rehabilitation program; and (2) imposes a fine. Medicare's new revocation authority would not apply in any event because no patient harm was present.

  3. In a case involving patient harm, a state oversight board issues a decision pertaining to Dr X that: (1) requires the physician to enter a rehabilitation program; and (2) restricts the doctor's license for a 60-day period due to, for example, sexual misconduct.

Such a case — one not only limited to sexual misconduct, but also other state board actions involving patient harm resulting in license restriction — could then trigger a CMS response about Medicare eligibility.

"Unprecedented Overreach"

In drafting the final version of the rule, CMS rejected many suggestions offered in comments about the revocation authority. In a September 24 comment on the draft physician fee rule, AMA Chief Executive Officer James L. Madara asked CMS to not finalize the proposal or to limit its application "only to providers and suppliers that are identified as outliers using data analytics."

In response, CMS argued that physicians' interactions with state boards serve as a good marker for those who may be considered for Medicare revocation.

"The overwhelming preponderance of physicians and other eligible professionals have not had a serious (nor, for that matter, any) state oversight board action," CMS said. "Those who have, we believe, could be considered outliers in terms of the volume and degree of professional misconduct."

AMA declined Medscape's request for comment on the revocation authority in the final 2020 physician fee rule. But Madara did describe CMS's new proposal on revocation as being "a broad and unprecedented overreach," in his September 24 letter to CMS about the draft rule.

"The AMA is also concerned that CMS buried such a major change to the denial and revocation authority in the annual physician fee schedule under the opioid treatment program section," Madara wrote. "Thus, the proposed rule gives the appearance of potentially only applying to 'high risk' Medicare-enrolled opioid treatment programs; however, the proposed change impacts all clinicians."

In addition, Madara said the new revocation authority overlaps with another recent expansion of this power CMS gave itself.

In 2014, CMS finalized a series of changes for the Part D pharmacy program that included new authority to revoke clinicians' Medicare enrollment due to prescribing patterns deemed to be abusive or a threat to patients' health.

In further expanding revocation authority in the 2020 physician fee rule, CMS drew many complaints that it was second-guessing clinicians. Many commenters suggested state medical boards should retain the responsibility, CMS said in summarizing the feedback it received.

In a comment to Medscape Medical News about the final rule, the Association of American Medical Colleges (AAMC) said it supports CMS's efforts to protect Medicare funds by ensuring it does not pay unqualified or fraudulent clinicians.

But CMS should defer to state medical boards and other state oversight entities regarding issues associated with protecting beneficiaries from patient harm, said Gayle Lee, AAMC's director of physician payment and quality issues.

"We are concerned that CMS may take action under the patient harm provisions without having all of the information about the complaint, the truth of the allegations, or sufficient data to make a thorough determination," Lee said. "CMS also did not set forth a form of due process before the enrollment is denied or revoked."

In the final rule, CMS argued that it needs the new revocation authority due to cases where "problematic" behavior persists for many years despite detection by state boards.

CMS cited a case in which a physician was placed on probation, fined, and suspended by a state board after multiple accusations by his patients for sexual assault. But the physician was permitted to maintain his medical license. He continued to sexually assault patients, CMS said.

"It was not until multiple years after the initial fine and probation period that the state finally revoked his medical license, and it was only after this license action that CMS was able to revoke the physician's Medicare enrollment," the agency said.

"However, with our new patient harm provisions, CMS could have taken immediate action based on the initial probation, fine, and suspension, thus perhaps avoiding the subsequent patient abuse that occurred," the agency added.

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