104 Iowa L. Rev. 353 (2018)

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Abstract

Medicare is a significant contributor to the health care system in the United States. In order to deliver care, the Centers for Medicare and Medicaid Services (“CMS”) contracts with providers using “provider agreements.” CMS enforces its regulations through a survey review process, which may result in a notice of termination of the provider agreement for noncompliance. Currently, providers can appeal to an Administrative Law Judge; but, the termination proceeds anyway, regardless of whether or not an appeal decision has been issued. This has created chaos for providers, who are forced to attempt to secure a temporary restraining order against CMS, which often fails, or to try to avail themselves of the protection of bankruptcy law. This appeals process is inadequate to ensure that providers are able to truly exercise their right to an appeal. Without a means to stay termination of the provider agreement while waiting for an appeal decision, providers face the harsh reality that even if they win their appeal, they may have already felt the consequences of a terminated agreement. Under the current system, a provider may be forced to close because of their terminated agreement only to find out they were correct after an appeal decision issued months after the impact of the termination has already been felt. This possibility alone demands modification of the Medicare provider agreement appeals framework. This Note argues that the statutory framework establishing the process for Medicare provider agreement appeals should be amended to include a stay of termination until an appeal decision is issued.