In a move that made little immediate splash, but has since received considerable media attention, including a recent article in the New York Times, the Department of Health & Human Services announced that it will take additional steps against “recalcitrant providers,” including exclusion from participation in federal health care programs. CMS issued a notice, on January 15, stating that it intends to refer recalcitrant providers to the Office of the Inspector General, which will review the cases for potential administrative action.

CMS defines a “recalcitrant provider” as one who is “abusing the program and not changing inappropriate behavior even after extensive education to address these behaviors.” The definition refers to existing procedures whereby a program contractor who identifies improper billing may require the offending provider to obtain education. Contractors sometimes place providers on pre-payment review if their billing practices continue to raise red flags. In the program directive, CMS noted that some providers remain on pre-payment review for years. The new program is intended to provide another level of review for providers who are a drain on CMS contractor resources.

Last year, OIG excluded over 3,000 providers from participation in Federal health care programs. Most of these exclusions are mandatory, and typically are triggered by a violation of the law. The exclusions contemplated by the new CMS initiative will be permissive, meaning that OIG will need to make an affirmative case for exclusion, and the department will provide the physician with an opportunity to have the matter adjudicated by an administrative law judge.

The initiative is reflective of the government’s continued focus on fraud, waste, and abuse in federal health care programs, which many sources estimate at over $10 billion per year.