Law School

Screening and Disclosure

What PPACA has to say about it

This is the second of a 4-part series on the provisions of
the Patient Protection and Affordable Care Act (PPACA) and how the
health reform law affects DME providers.
Series:
Part 1 |
Part 2 | Part
3

The Patient Protection and Affordable Care Act was signed into
law on March 23, 2010. The health reform law has a number of
provisions that directly affect DME suppliers, including screening
and disclosure requirements.

  • Screening: Section 6401 of the act states that suppliers
    enrolling or re-enrolling in Medicare, Medicaid or CHIP will be
    subject to screening measures. The Secretary of the Department of
    Health and Human Services is required to establish procedures for
    screening suppliers, and to determine the level of screening
    according to the risk of fraud, waste and abuse with respect to
    each category of supplier.

    All suppliers will be subject to licensure checks and, if the
    Secretary so determines, additional screening measures such as
    criminal background checks, fingerprinting, database checks, and
    unscheduled and unannounced site visits. An application fee of $500
    will be imposed to cover the costs of screening; this fee will be
    adjusted for inflation. (A recent CMS notice sets the fee at $505
    beginning March 25.)

    To paraphrase the words of an OIG attorney, the government is
    moving away from “pay and chase” to “guarding the
    henhouse.” In the early days of the industry — in the
    “pay and chase” days — it was easy for a company
    to obtain a Medicare Part B supplier number. The screening process
    was rudimentary. A dishonest company could easily obtain a supplier
    number, improperly bill Medicare, and then shut down and escape
    just ahead of the posse.

    Over the past five years, it has become more difficult for a
    company to obtain a supplier number. Accreditation and surety bond
    requirements by themselves have weeded out many of the dishonest
    players.

    Section 6401 of PPACA assists the government in achieving its
    goal of moving away from “pay and chase” to
    “guarding the henhouse.” Now, a company must jump
    through multiple hoops before it is awarded a supplier number: It
    has to purchase a surety bond; it has to become accredited; and its
    principals are subject to a background check (including a criminal
    background check and fingerprinting).

    DME companies are experiencing unannounced site visits from a
    variety of sources, including the NSC, the OIG, the state Medicaid
    program, an accrediting organization or a Medicare contractor. If a
    DME supplier is conducting a non-compliant, or perhaps a
    fraudulent, operation, there is a reasonable chance that the
    non-compliance/fraud will be discovered when a person walks
    unannounced onto the premises, eyeballs the operation and asks for
    evidence that the supplier standards are being followed.

    The bottom line is this: In addition to expecting an NSC site
    visit when you come up for re-enrollment, you can expect
    unannounced site visits on a periodic basis.

  • Disclosure: Section 6401 of the act further provides that
    suppliers enrolling or re-enrolling in Medicare, Medicaid or CHIP
    will be subject to new disclosure requirements.

    Applicants will be required to disclose current or previous
    affiliations, directly or indirectly, with any provider or supplier
    that has uncollected debt, been subject to payment suspension under
    a federal health care program, has been excluded from participating
    in a federal health care program or has had its billing privileges
    denied or revoked.

    The Secretary may deny enrollment or re-enrollment if such
    affiliations pose an undue risk of fraud, waste or abuse.

    Permit me to use an analogy. There is a class of physicians who
    are dysfunctional, incompetent and/or dishonest. These physicians
    bounce around from one small town to the next. A small town that is
    in desperate need of a doctor will be so excited about getting one
    that the town officials don't conduct the proper background check.
    This allows the physician to move to the town, cash in on whatever
    financial incentives the town gives him and then skip out to the
    next town once his dysfunctions start surfacing.

    I use this analogy because we see the same phenomenon in the DME
    industry. John Smith will start ABC Medical. ABC will suffer
    serious compliance and/or financial problems and will close its
    doors. Mr. Smith will then start XYZ Medical, which will end up
    suffering the same fate as ABC.

    By requiring Mr. Smith to disclose past affiliations, the
    chances increase that he will be “outed” and will no
    longer be eligible for a supplier number.

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