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Something New—The Preclusion List

on Friday, 3 May 2019 in Health Law Advisory: Zachary J. Buxton, Editor

Beginning on April 1, 2019, CMS started using a Preclusion List as a basis for denying claims for Medicare Advantage, Part D and PACE claims. The concept of the Preclusion List was finalized a year earlier in CMS-4182-F, Contract Year 2019 Policy and Technical Changes to the Medicare Advantage Cost Plan, Medicare-Fee-for-Service, the Medicare Prescription Drug Benefit Programs, and the PACE Program, which rescinded the enrollment requirements for Medicare Advantage (MA), Part D and PACE, replacing it with the Preclusion List. The first list of precluded providers was published to MA plans, Part D sponsors and PACE organization on December 31, 2018. CMS suggested that denials begin on April 1, 2019 for the providers and prescribers listed in the December 2018 Preclusion List.

What is it? The Preclusion List includes individuals and entities who:

(1) Are currently revoked from Medicare, are under an active re-enrollment bar, and CMS determines that the underlying conduct that lead to the revocation is detrimental to the best interests of the Medicare program; or

(2) Have engaged in behavior for which CMS could have revoked the individual or entity to the extent applicable if they had been enrolled in Medicare, and CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program.

The Preclusion List is not the same as the OIG List of Excluded Individuals and Entities although there is overlap. The definition of the Preclusion List is broader and includes not only excluded individuals but also individuals and entities whose conduct could be detrimental to the interests of the Medicare Program. The definition of individuals and entities in the Exclusion List are those who have been found to pose unacceptable risks to patient safety and or program fraud.

The Process. CMS will notify providers and prescribers of their potential inclusion on the Preclusion List prior to being added. Providers and prescribers have appeal rights that will be explained as part of this notice.

Notice to Beneficiaries and Denials. CMS will publish the Preclusion List to MA plans, Part D sponsors and PACE organizations. These plans and programs are then required to deny payment of the health care item or service furnished by a provider on the Preclusion List (in the case or MA plans and PACE programs) or deny a pharmacy claim or a beneficiary’s request for reimbursement for a drug prescribed by a provider on the list (in the case of Part D sponsors). Plans have thirty days to review the lists and notify affected beneficiaries. Then beneficiaries have a minimum of sixty days to arrange other providers before their claims are rejected or denied.

Updates to the Preclusion List. Updates will be available to MA plans, Part D sponsors and PACE programs on a monthly basis on the first business day of each month. The Preclusion List will not be made public. Once an individual or entity has been added to the Preclusion List, they will not drop off, but the list will state that that a provider is no longer precluded when that occurs. Providers will not be added to the list until appeals are complete and then will only be added if the appeal is unfavorable.

How do I learn more? Any questions about the Preclusion List can be directed to providerenrollment@cms.hhs.gov.

Julie A. Knutson

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500