CMS Reverses Action Blasted by TMA Board

November 21, 2017

In an unexpected and rare turn of events, the Centers for Medicare and Medicaid Services reversed its previous decision to kick a West Tennessee internist, Dr. Bryan Merrick, out of Medicare. Dr. Merrick’s privileges to bill Medicare were recently retroactively restored after he visited CMS in Baltimore.

The West Tennessee internist’s troubles began when a Medicare contractor audit revealed a handful of improper billings for services provided by Merrick to Medicare recipients who were deceased. The names of patients who actually received services were similar to deceased patients in the local hospital and nursing home’s systems. Human error caused the improper claims to be submitted. Services incorrectly billed amounted to less than $700. CMS kicked Dr. Merrick out of Medicare and TennCare probably would have followed suit had CMS not reversed its decision this month.

CMS’ revocation decision drew ire from patients, members of the doctor’s local community, the Consolidated Medical Assembly of West Tennessee, and the TMA Board, among others. CMAWT and TMA submitted letters in support of Merrick asking CMS to reverse its initial decision.
The TMA Board’s letter slammed CMS for not using its discretion and just revoking the doctor’s billing privileges as a matter of course. “CMS treated Dr. Merrick’s isolated human error case the same as it would an intentional and fraudulent case with a pattern of errant claims over a long period of time,” remarked James Ensor, MD, chairman of TMA’s board.

“This stunning turn of common sense from CMS can only be the result of the full-court press that Dr. Merrick and his supporters were able to generate,” according to Mark Ison, Merrick’s lawyer. In addition to the letters from the local and state medical societies, the mayor of Dr. Merrick’s home town had written in support of his 30-plus years of unblemished record and what he meant to the community. The case drew interest from Tennessee’s congressional delegation, including David Kustoff, who represents Merrick’s district.

“Every legal expert I contacted about this matter told me these revocations were pro forma and almost never reversed by CMS. So, our board of trust took a different tact and strongly urged CMS to use its discretionary powers that were built into the statute to look at the case with common sense. I hope that CMS’ action in Dr. Merrick’s case is the dawning of a new day where CMS will actually look at the facts and weigh the evidence in matters of this type. Mistakes are going to be made in billing and they should not warrant the functional equivalent of the death penalty for Medicare participation,” said TMA Senior Vice President and General Counsel Yarnell Beatty.

The announcement of CMS’ decision at CMAWT’s November 14 annual legislative dinner drew a standing ovation for Merrick, who thanked all of his supporters.

“That is what being a member of organized medicine is all about - the weight of almost 10,000 doctors statewide supporting their colleagues when an injustice is purveyed is powerful and reassuring,” said Pamela Murray, MD, president of CMAWT. 

Beatty cautioned, “Because we do not know if CMS has turned a new leaf, physicians and their staffs are strongly advised to put measures in their business operations to help prevent billing errors and the legal quagmire that befell Dr. Merrick."

What can a physician do to avoid errors in billing when patient names are similar?

  • Add an alert to the electronic medical records system highlighting that there are two or more patients with a similar name that reminds staff to check the patient’s date of birth to confirm his or her identity.

  • Work with software vendors to add a “Charge Pass Entry” module to the electronic medical records system, which automatically generates billing information, including the patient’s demographic information, based on the information entered by the provider at the point of care, thereby minimizing or even eliminating the possibility that information could be manually entered incorrectly by billing staff.

  • Instruct appropriate employees to enter the patient’s death date into the practice management software system as the patient’s “termed insurance” date, which will prohibit bills from being electronically generated for that patient.

  • Require claim denial staff to report to billing and clinical staff any claims denied by reason of the patient’s death, and require them to take immediate follow-up actions to determine if the patient has, in fact, died.