Continuing a now annual tradition, the Centers for Medicare & Medicaid Services (CMS) has included expansions and enhancements to its authorities to deny enrollment or revoke a provider’s Medicare billing privileges (currently listed in 22 different categories) in Section III.K of the Physician Fee Schedule Proposed Rule (CMS-1784-P, referenced here as “the Proposed Rule”).

The Proposed Rule is expected to be published in the Federal Register on August 7, 2023. Comments must be submitted no later than September 11, 2023 in the manner specified in the Proposed Rule.

Summary of the Potential Impact

The proposed revisions include several provisions that could potentially impact providers and suppliers, and for sake of brevity, we highlight only those we consider to be most significant.

Assuming adoption of the Proposed Rule, and as discussed in more detail below, providers and suppliers should be especially cautious when assessing risks of association with any owners, managing employees or organizations, officers or directors whose backgrounds reflect a misdemeanor conviction within the prior 10 years, or a false claims act (FCA) judgment (not settlement) in the prior 10 years. Similarly, those now considering misdemeanor pleas or proceeding to trials on FCA cases should be aware that these actions may impact their or their affiliate’s future Medicare participation.

The Proposed Rule also would expressly provide that a violation of applicable provider and supplier...

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