CMS is formalizing its process for dealing with "recalcitrant" Medicare providers and suppliers who are abusing the program and not changing inappropriate behavior even after extensive education. CMS notes that the current practice of placing these providers and suppliers on prepayment review for years utilizes resources that could be better used for other types of oversight activity. CMS therefore is working with the OIG to take advantage of other sanctions, including CMPs and exclusion, that could be used in such circumstances. CMS encourages Medicare Administrative Contractors (MACs) to refer recalcitrant provider cases to CMS if certain criteria are met. New Medicare Program Integrity Manual provisions set forth the detailed process and criteria for such referrals and the data that MACs must submit to justify such cases (although different mitigating or aggravating circumstances may need to be applied). CMS notes that MACs should "not include providers who are demonstrating improvement, however slight, as a result of education." CMS also cautions in an educational article that "[a]ny provider referred as a potential recalcitrant provider case should be an "outlier," meaning a provider who has been the least receptive to changing and has a significant history of non-compliance."
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