Judith Waltz Addresses CMS' New Exclusion Authority and Provider Screening

Foley & Lardner LLP partner Judith Waltz was featured in Report on Medicare Compliance’s article, “CMS Now Has the Power of Exclusion in Addition to Revocation; Effect on Screening Is Hazy,” discussing the recent delegation of permissive exclusion authority to the Centers for Medicare & Medicaid Services by the Department of Health and Human Services.

Waltz explained that the delegation offers CMS “a broader catchment for a group of people they can’t get at through billing revocations but conclude shouldn’t be in the business of providing services to Medicare beneficiaries.” She clarified that exclusion is more extensive than revocation because it prevents participation in all federal healthcare programs, not just Medicare billing. However, Waltz added, “there can be collateral impact from a revocation, such as a reciprocal termination under Medicaid.”

“It’s not clear from this delegation whether CMS is being swapped in or having concurrent authorities,” she said, highlighting uncertainty around the respective roles of CMS and the OIG in enforcement and exclusion decisions. Waltz advised that, for the time being, providers should “check the LEIE” when conducting exclusion screening.

She also raised questions about CMS’ role in False Claims Act settlements, noting that agency participation in settlement discussions could create an opportunity to negotiate “a release of its ability to revoke billing privileges.”