Towards a Fair Appeal: Rethinking Medicare Provider Agreement Termination Appeals

Author:Dexter R. Golinghorst
Position:J.D. Candidate, The University of Iowa College of Law, 2019
Pages:353-383
SUMMARY

Medicare is a significant contributor to the health care system in the United States. In order to deliver care, the Centers for Medicare and Medicaid Services (“CMS”) contracts with providers using “provider agreements.” CMS enforces its regulations through a survey review process, which may result in a notice of termination of the provider agreement for noncompliance. Currently, providers can... (see full summary)

 
FREE EXCERPT
353
Towards a Fair Appeal:
Rethinking Medicare Provider Agreement
Termination Appeals
Dexter R. Golinghorst*
ABSTRACT: Medicare is a significa nt contributor to the health ca re system
in the United States. In order to deliver c are, the Centers for Medicare and
Medicaid Services (CMS) contracts wi th providers using “provider
agreements.” CMS enforces its reg ulations through a survey review p rocess,
which may result in a notice of termination of the p rovider agreement for
noncompliance. Currently, providers ca n appeal to an Administrative Law
Judge; but, the termination proceeds anywa y, regardless of whether or not an
appeal decision has been issued. This ha s created chaos for providers, who are
forced to attempt to secure a tem porary restraining order against CMS, which
often fails, or to try to avail themselves o f the protection of bankruptcy la w.
This appeals process is inadequate to e nsure that providers are able to tr uly
exercise their right to an appeal. With out a means to stay termination of the
provider agreement while waiting for an appeal decision, providers face th e
harsh reality that even if they win their appeal, th ey may have already felt the
consequences of a terminated ag reement. Under the current system, a provider
may be forced to close because of their t erminated agreement only to find o ut
they were correct after an appeal d ecision issued months after the impact of
the termination has already been felt. This possibility alone demand s
modification of the Medicare provid er agreement appeals framework. Thi s
Note argues that the statutory framework establ ishing the process for Medicare
provider agreement appeals should be am ended to include a stay of
termination until an appeal decisio n is issued.
I. INTRODUCTION ........................................................................... 354
II. MEDICARE PROVIDER AGREEMENT FRAMEWORK .......................... 356
* J.D. Candidate, The University of Iowa College of Law, 2019; Master of Health
Administration Candidate, The University of Iowa College of Public Health, 2020; B.A., The
University of Iowa, 2016. I would like to thank my family for their unending support in my
educational endeavors, and the s taff of the Iowa Law Review for their excellent advice du ring the
editing process.
354 IOWA LAW REVIEW [Vol. 104:353
A. BRIEF HISTORY OF MEDICARE ENACTMENT .............................. 356
B. MEDICARE REQUIREMENTS AND REGULATIONS ........................ 357
C. TRACKING CURRENT STATUTORY APPEAL RIGHTS FOR
QUALIFYING MEDICARE PROVIDERS UNDER MEDICARE .............. 362
III. THE SCRAMBLE TO SAVE THE PROVIDERS AGREEMENT ............... 365
A. SPLIT AMONG COURTS GRANTING TROS AGAINST CMS........... 365
B. PROVIDER ATTEMPTS TO USE BANKRUPTCY LAW FOR
PROTECTION ......................................................................... 368
1. Bankruptcy Law’s Automatic Stay ............................... 369
2. Bankruptcy Protection is Not an Adequate
Solution ........................................................................ 370
IV. A STATUTORY SOLUTION ............................................................ 377
A. IMPLEMENTING A STAY PENDING APPEAL ................................ 377
B. THE STATUTORY SOLUTION IS SUPERIOR TO
ALTERNATIVES ...................................................................... 380
V. CONCLUSION .............................................................................. 382
I. INTRODUCTION
Medicare provides protection and health care coverage for 44 million
Americans.1 This represents 15% of the total population of the United States,
mainly including those 65 years of age and older.2 This number is projected
to reach a striking 79 million by 2030, which will create substantial
“administrative and fiscal challenges to the system.”3 But, the federal
government does not provide any actual care; it only pays for it.4 Thus,
Medicare requires agreements betwe en providers and the Centers for
1. BEN UMANS & K. LYNN NONNEMAKER, AARP PUB. POLY INST., THE MEDICARE BENEFICIARY
POPULATION 1 (Jan. 2009), https://assets.aar p.org/rgcenter/health/fs149_medicare.pdf.
2. Id. at 2 (“A little more than half of current aged Medicare enrollees are between the ages
of 65 and 74, though the older segments of the population are growing. Today, indi viduals over the
age of 85 account for a little m ore than 10 percent of the total Medicare populati on, but their use
of Medicare services and their overall impact on the prog ram are substantial.” (footnotes omitted)).
3. Id. at 3 (noti ng this figure is “more than double the year 2000 enr ollment”).
4. This Note does not address any services or agreements of the Veterans Administration,
which acts as both payer and provider of medical care.

To continue reading

FREE SIGN UP