TMA Board Rips CMS About West TN Revocation, 
Warns Members that Human Error Can Lead to Physicians Being Kicked Out of Medicare


November 6, 2017

The Tennessee Medical Association Board of Trustees delivered a scathing rebuke to the Centers for Medicare and Medicaid Services (CMS) regarding its decision to revoke the Medicare billing privileges of a West Tennessee internal medicine physician with more than 30 years of unblemished practice. The Board issued letter of support for Dr. Bryan Merrick, a longtime TMA member, who is appealing CMS’ revocation of his Medicare billing privileges because of a handful of clerical and administrative errors, made mostly by staff of facilities where the physician had patients.

TMA objects to the way Dr. Merrick’s case was handled because CMS failed to exercise reasonable discretion in arriving at its decision in the case that involved less than $700 in controversy. It did not have to revoke the physician’s billing privileges, effectively ending his participation in Medicare and most likely TennCare. It could have taken corrective action and let him continue to see his patients at the small rural community hospital located in a medically underserved area.

TMA’s research reveals this is a disturbing pattern by CMS – robotically revoking physician billing privileges in almost every case, then perhaps imposing something less after extensive and expensive appeals by the physician. The case has caught the attention of Tennessee’s congressional delegation, notably Rep. David Kustoff and Sen. Lamar Alexander.

TMA Board chairman, James Ensor, MD, of Memphis termed CMS’ decision “chilling” in the Board’s letter because “it strongly suggests that in similar situations CMS will automatically invoke what is a proverbial death penalty for a physician without the first thought about what is best for Medicare beneficiaries, local medical communities, or local economies. Cases like Dr. Merrick’s erode Tennessee physicians’ trust in CMS, and could cause many of them to reexamine their commitment to participation in the Medicare program.”

“Obviously, the punishment doesn’t fit the crime in this case,” said TMA Senior Vice President and General Counsel Yarnell Beatty. “It defies logic why CMS would summarily cut off access to primary care to hundreds of Dr. Merrick’s patients and force them to find another doctor in a medically underserved part of the state or spend thousands more of Medicare’s money, funded by us, the taxpayers, to receive primary care at the hospital’s emergency department.”

Beatty cautions TMA members, “To avoid a legal quagmire like this, physicians need to take extraordinary precautions to make sure that the identity of the patient for whom services were rendered is the correct patient for which Medicare is billed. Processes need to be in place with the facilities where doctors practice and make sure claims for deceased patients with similar names are not submitted instead.”

Disputed claims involved in Dr. Merrick’s case:

  • A hospital billing employee inadvertently identifying a deceased patient in the billing system with an identical or similar name to the living patient who had actually received the services

  • Claims involving a situation in which Dr. Merrick inadvertently provided the name of a recently deceased nursing home patient to a hospital billing employee

  • Claims involving chart-review-only chronic care management services provided for patients whom Dr. Merrick had never been informed were deceased

Beatty warned that physicians should put in place patient identification safeguards now to avoid a long, expensive ordeal.

“CMS does not seem to want to distinguish between isolated and accidental conduct versus intentional and fraudulent conduct, even though the regulations make revocation permissive, not mandatory, and even though CMS is supposed to consider several factors in deciding if revocation, or a lesser penalty, is warranted. It is easy for CMS to just revoke everyone and punt to an administrative judge to sort things out on appeal, but by addressing these cases like that, CMS is abdicating its publically stated responsibility to look at the facts on a case-by-case basis,” said Beatty.

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.