CMS Keeps the Carrot Small for Whistleblowers

Just eight months ago, the U.S. Department of Health and Human Services (HHS)'s Centers for Medicare and Medicaid Services (CMS) announced a proposal to raise the ceiling for whistleblower payouts to nearly $10 million from the current cap of $1,000.  This increased monetary incentive was just one of many provisions designed to decrease Medicare fraud. While the intention of the proposed rule was to intensify the fight to prevent Medicare fraud and abuse, many critics believed that it would open the floodgates to unsubstantiated fraud claims.

 It appears that CMS took commenters' concerns seriously. Earlier this month, the agency prepared and released a 140-page final rule that includes many provisions previously announced in April, but conspicuously excludes huge monetary incentives for whistleblowers.  A fact sheet on the final rule can be found here

Some of the measures from the final rule include:

  • expanding the instances in which a felony conviction can serve as a basis for disbarment of a provider or supplier's enrollment;
  • denying enrollment if the enrolling provider, supplier, or owner had an ownership relationship with a previously enrolled provider or supplier that had a Medicare debt;
  • revoking Medicare billing privileges after determining the provider or supplier has a pattern or practice of submitting claims for services that fail to meet Medicare requirements; and
  • limiting the ability of ambulance suppliers to "backbill" for services performed prior to enrollment. 

While the carrot remains small for now, the concept of increased monetary incentives for whistleblowers in the health care industry is not completely foreclosed.  CMS has not finalized increased incentives in this rule, but it may finalize them in future rulemaking.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.