Licensed health care professionals are required to comply with both state and federal rules regulations within their practice.

In Wisconsin, health care providers are aware they need to renew their license through the Department of Safety and Professional Services. Many providers realize employment termination or a criminal conviction can impact their professional licenses.

What a large majority of these licensed health care professionals don’t know is the consequence an adverse legal action may have on their ability to bill Medicare for their services.

Who Can Bill Medicare?

Medicare is a federal health insurance program for individuals age 65 or older, individuals under age 65 with certain disabilities, and individuals of all ages with end-stage renal diseases.¹

In order for a health care provider to bill and be paid for providing services to a Medicare beneficiary, they need to be enrolled as a Medicare provider.

Health care professionals who may bill Medicare include physicians, nurse practitioners, clinical social workers, clinical psychologists, and registered dieticians, just to name a few.²

When applying to become a Medicare provider, a health care professional needs to complete a Medicare enrollment application. The paper version of this application is 24 pages, and asks the health care professional background questions, which includes disclosing any adverse legal actions. The health care professional is required to sign the application, certifying they will abide by the Medicare laws.

Once the health care professional is accepted as a Medicare provider, they are able to bill and be paid by the program, and they also must remember they are required to abide by the Medicare laws. If they do not, the health care professional may find themselves excluded from the Medicare program.

What is Medicare Exclusion?

An individual or entity can be excluded from participation in federal health care program, including Medicare, for several reasons.

A criminal conviction is the most common reason for exclusion, but it can also be for a health care license revocation or suspension, exclusion from a state health care program, such as BadgerCare, or failure to cooperate with an investigation by a state Medicaid fraud unit.³ Once a health care provider is placed on the Medicare exclusion list, they are unable to bill and be paid by Medicare.

Depending on the criminal conviction, a health care provider may face a mandatory exclusion or a permissive exclusion. Convictions relating to patient abuse or neglect, convictions relating to health care fraud, and felony convictions relating to controlled substances all result in mandatory exclusion for a minimum of five years.⁴

Convictions of a second mandatory exclusion offense result in a mandatory exclusion of 10 years, and a conviction of a third or more mandatory offenses results in a permanent exclusion.⁵

Criminal convictions determined to be less egregious by the Medicare program, may also result in exclusion, are known as permission exclusions.⁶ These convictions include misdemeanor convictions relating to health care fraud, convictions relating to fraud in non-health care programs, convictions relating to obstruction of an investigation or audit, and misdemeanor convictions relating to controlled substances.⁷ These exclusions are for a baseline period of three years.

Additionally a health care license revocation, suspension or surrender may also result in exclusion the Medicare program for the period imposed by the state licensing authority.⁸

Where Can an Excluded Provider Work?

Realistically, once a provider is excluded from the Medicare program, it can be extremely difficult to maintain employment within the health care industry.

If a health care system, provider, or supplier is also enrolled the Medicare program, they are not allowed to employ or contract with individuals who are excluded from any federal health care program, including Medicare.⁹

Therefore, an excluded provider will not be allowed to work in any health care setting that treats Medicare beneficiaries.

How Can a Provider Avoid Being Excluded from the Medicare Program?

First and foremost, a health care provider should understand the Medicare reporting requirements when faced with a criminal conviction or limitation to their professional license.

A Medicare provider must report any adverse legal action within 30 days.¹⁰ Timely reporting a criminal conviction that results in a mandatory exclusion from the Medicare program will benefit the provider when it comes time to reapply to the Medicare program once the exclusion period has ended.

Timely reporting a criminal conviction, or professional licensure discipline that qualifies a as “permissive exclusion” may result in no adverse action being taken by Medicare.

Alternatively, when facing criminal charges, it is important for a health care provider to consult with an experienced attorney who understands the Medicare program. Sometimes, plea negotiations may take a different turn once the collateral consequences of certain criminal convictions are known.

Conclusion: Complex and Necessary

Medicare is an incredibly complex program. While being enrolled as a health care provider has many benefits, a failure to comply with Medicare’s many rules and regulations can have lasting repercussions. Being excluded from the Medicare program does not need to end a health care provider’s career, but it should be avoided at all costs.

This article was originally published on the State Bar of Wisconsin’s Health Law Blog. Visit the State Bar sections or the Health Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ See Medicare Program - General Information on cms.gov.

² For a complete list of eligible professionals see Eligible Professionals on cms.gov.

³ 42 U.S.C.A. §1320a-7(a).

⁴ 42 U.S.C. §1320a-7(a)(1-4).

⁵ 42 U.S.C. §1320a-7(c)(3)(G)(i-ii).

⁶ 42 U.S.C. §1320a-7(b).

⁷ 42 U.S.C. §1320a-7(b)(1-3).

⁸ 42 U.S.C. §1320a-7(b)(4).

⁹ 42 C.F.R. §424.516(a)(3).

¹⁰ 42 C.F.R. §424.516(d)(ii).