GOP senators chide Medicare over enrolled felons

Washington -- Two Republican senators have questioned the agency overseeing the Medicare program about what it is doing to exclude convicted felons from billing for health care services.

Sens. Orrin Hatch (R, Utah) and Tom Coburn, MD (R, Okla.), have called on the Centers for Medicare & Medicaid Services to crack down on the dozens of people convicted of felonies who apparently were still enrolled in Medicare and able to bill the government for services. In a Nov. 29 letter, the senators said they were concerned about the agency's ability to protect seniors and taxpayer dollars.

"We believe that the lack of systematic editing, the refusal to implement enhanced oversight of high-risk providers and suppliers, and malleable policy positions are the wrong direction for the Medicare program, and that a change is needed to protect the public trust," Hatch and Dr. Coburn said.

However, not all felonies warrant a ban from the Medicare program, and CMS has taken steps to improve program integrity in recent years, agency officials said.

The senators originally had written a Sept. 27 letter to then-CMS Administrator Donald M. Berwick, MD, regarding 34 individuals who were convicted of or had pleaded guilty to felonies but who continued to have Medicare billing privileges. Dr. Berwick replied in a 14-page letter that outlined the Medicare agency's program integrity efforts and attempted to answer the senators' complaints.

CMS did not have any enrollment records for seven of the 34 individuals identified by the senators, Dr. Berwick said. The Dept. of Health and Human Services Office of Inspector General had determined that eight others had no potential for exclusion from the program, while one person was pending for a possible ban.

The rest of the individuals on the senators' list had convictions that were not grounds for exclusion from Medicare or had no record of conviction in the OIG's database. Under Medicare statute, some felony offenses, such as driving under the influence or a hunting violation, do not lead to automatic expulsion.

CMS also had added safeguards to strengthen its enrollment processes in recent years, Dr. Berwick said.

In their Nov. 29 letter, Hatch and Dr. Coburn called Dr. Berwick's initial response inadequate. They also suggested that Conrad Robert Murray, MD, who was convicted of involuntary manslaughter in the death of pop star Michael Jackson on Nov. 7, was still on Medicare's enrollment log. California had suspended Dr. Murray's medical license in January.

But Dr. Murray no longer was enrolled in the Medicare program, according to a CMS official, who asked not to be identified while the agency worked on an official response to the senators.

The agency recently awarded a contract for automated enrollment screening services that will ensure all physicians and other health professionals meet program requirements. The contractor continuously will monitor a variety of data sources, such as the General Services Administration Excluded Parties List and the Office of Inspector General exclusion database. The system is expected to be operating in January.

The Medicare agency had relied mainly on self-disclosure of adverse actions against enrollees, Dr. Berwick said. However, CMS' enrollment database now is being checked against the OIG's exclusion database on a monthly basis. The Medicare program revoked enrollment for 1,392 health professionals during the third quarter of 2011, CMS reported.

"While the agency has broad discretion to revoke for certain felony convictions, OIG is mandated by statute to exclude individuals or entities convicted of certain offenses, including both misdemeanors and felonies, but has no authority to exclude any person or entity convicted of offenses not specified by statute," he said.

Federal statute sets the basis for OIG's exclusion authority. The office will exclude from Medicare participation for five years those convicted of program-related crimes, or patient abuse or neglect, according to the OIG website. Felony convictions relating to health care fraud or a controlled substance also carry a minimum five-year ban. Convictions on three or more occasions will lead to a permanent exclusion from the program.

The law also permits the OIG to ban for at least three years physicians and health professionals convicted of misdemeanors relating to health care fraud or a controlled substance. The health system reform law gave the OIG the authority to exclude those who make false statements or commit other acts of fraud.