Medicare Exclusions / Revocations FAQ
Houston-Based Medicare Fraud Attorneys Serving Texas
Providers, suppliers, and others facing Medicare enforcement matters have a lot on the line, and a lot to learn about their rights and the procedures for protecting their practices. At Hendershot Cowart P.C., our Houston-based health care lawyers help clients prevent, mitigate, and defend against a range of Medicare matters, from practice set-up and creation of compliance plans to enrollment denials, audits and investigations, billing privilege revocations, and OIG exclusions – which is why we know providers in these situations often have many questions.
If you are facing any enforcement action involving a state or federal health care program, or want to proactively protect yourself against potentially devastating consequences, we encourage you to speak with an attorney from our firm for more personalized information about your case and options. Our team is available to address any questions and concerns you may have, and provide the knowledgeable representation you need to protect your status, your future, and your career.
Exploring general information about your rights and what you can expect is important. However, many Medicare actions – especially appeals, reconsiderations, and early intervention response strategies – are highly time-sensitive and very high-stakes matters. Call our experienced Texas Medicare attorneys for the immediate support you need: (713) 909-7323.
Medicare Exclusions: Common Questions and Answers
Q: What is exclusion, and how does it work?
A: Under Sections 1128 and 1156 of the Social Security Act, the Department of Health and Human Services’ (HHS) Office of Inspector General (OIG) has the power to exclude individuals and entities from federally funded health care programs, including Medicare. An exclusion prevents providers and suppliers, and anyone affiliated with them, from receiving any payment from the federal government for services or items they furnish, prescribe, or order.
Q: How can I be at risk of Medicare exclusion?
A: The OIG has the authority to issue exclusions for many different reasons. Sometimes, federal law requires that certain conduct result in a mandatory exclusion ((1128(a)(1-4)). In others, the OIG has some discretion in issuing permissive exclusions ((1128(b)). How providers or suppliers end up facing exclusion under these statutes can also vary. Examples of issues or enforcement actions which may expose providers to potential risks of exclusion include:
- ZPIC audits / RAC audits
- Red flags in billing practices
- Civil Investigative Demands (CID)
- Requests for interviews
- Document or information demands
State and federal fraud investigations
Q: What’s the difference between mandatory and permissive exclusion?
A: The OIG is required by federal law to initiate and impose exclusion for certain reasons (mandatory exclusion), but not necessarily for others (permissive exclusions). Examples include:
- Convictions for health program-related crimes
- Convictions for neglect or abuse of patients
- Felony health care fraud convictions
- Felony controlled substance convictions
- 2nd conviction for a mandatory exclusion offense (10-year minimum exclusion)
- 3rd or subsequent offense for a mandatory exclusion offense (permanent exclusion)
- Misdemeanor health care fraud
- Non-health program fraud
- Misdemeanor controlled substance convictions
- License revocation or suspension
- Billing for services not rendered
- Entities controlled by excluded individuals
- Failures to take corrective action
- Student loan or scholarship default
- Failure to provide medically necessary services
Though every case is different and exclusion periods may vary, mandatory exclusions typically call for a minimum exclusion period of 5 years (with the exception of a second or subsequent offense). Permissive exclusions may have no mandatory minimum period of exclusion for certain grounds, a 1-year minimum exclusion period (for claims of excessive charges / unnecessary services), or a 3-year baseline period (typically for criminal misdemeanor convictions).
Q: What are the repercussions of exclusion?
A: Exclusion from Medicare has far-reaching and potentially career-altering consequences. Although the nature of the underlying reason and particular facts of a case will impact what consequences you may face, common repercussions include:
- Exclusion from all federally funded health care programs (Medicare, VA, TRICARE, etc.);
- Exclusion from state federal health care programs / state Medicaid termination;
- Loss or suspension of medical license;
- Debarment / GSA exclusion from federal contracts;
- Reputational / professional harm.
Though exclusion can prevent individuals from federal health program participation as a provider, it does not bar affected individuals from receiving benefits under Medicare, Medicaid, or other federal health programs, such as the VA. In some cases, the OIG may grant a waiver to excluded providers which permit federal health program payment for certain services or items specifically named in the waiver. This may happen in cases where a provider is the only available one of their kind in a geographic area, in addition to other circumstances.
Q: What’s the Medicare exclusion process?
A: The administrative process for most mandatory and permissive exclusions is generally the same.
- NOI – If the OIG is considering exclusion, it will typically send out a Notice of Intent (NOI) to exclude, which contains a reason for the proposed exclusion and information about its possible effects, though it may not send an NOI for mandatory exclusions which carry a 5-year minimum exclusion period. NOIs are pre-decisional, and you have 30 days to submit a written response and information the OIG will consider when making a final decision. In some cases (1128(b)(6)), providers have an additional opportunity to present oral arguments before OIG officials.
- NOE – The OIG will send a Notice of Exclusion (NOE) if it decides to exclude a provider in spite of any NOI response they submitted, or in cases of mandatory exclusions or certain permissive exclusions where no NOI is ever sent. Medicare exclusions take effect 20 days after the NOE is mailed. In cases involving fraud, kickbacks and other prohibited activities (1128(b)(7)), a Notice of Proposal to Exclude may be sent instead.
- ALJ Hearing – Providers have the right to appeal an exclusion by requesting a hearing before an Administrative Law Judge. These ALJ’s are part of the HHS, and the process is administrative in nature. If you wish to request an ALJ hearing, you must do so within 60 days of receiving the Notice of Exclusion, and you must be prepared to raise your arguments over issues you take regarding the decision itself, the proposed exclusion period, or other aspects of the action.
- DAB / Judicial Review – If the ALJ hearing results in a decision providers do not agree with, they can further appeal to the HHS Departmental Appeals Board (DAB), after which the only option is judicial review in federal court.
Q: Can providers be reinstated to Medicare?
A: With the exception of providers who were permanently excluded, yes. However, reinstatement is not automatic. In order to regain your ability to participate in Medicare and other federally funded health programs, you must apply for reinstatement and be granted reinstatement by the OIG. You may apply within 90 days of the date your specified exclusion period is set to expire, when you have regained a license implicated in an indefinite exclusion, or when you have obtained a different license in the same state, a license in another state, or have been excluded for a minimum of 3 years without any health care license in any state. The reinstatement process requires a thorough written request, and may take up to 120 days or longer. Providers who are denied reinstatement are eligible to reapply within 1 year, which makes it important to get things right the first time.
Medicare Revocations: What You Need to Know
Q: What’s the difference between Medicare revocation and exclusion?
A: Medicare revocation and exclusion are not the same. Exclusions bar providers from participation in all federal health care programs, whereas revocations involve Medicare billing privileges. While the OIG oversees the Exclusion process and has authority to exclude providers, the Centers for Medicare and Medicaid Services (CMS) is responsible for administrating enforcement actions such as billing privilege revocation.
Q: What are the grounds for Medicare revocation?
A: Medicare revocation is an authoritative enforcement tool used by CMS to oust waste, fraud, and abuse in Medicare and Medicaid. ZPIC audits and recoupment have traditionally been the agency’s most important regulatory tools, but an increasingly aggressive approach to enforcement has made revocations more common, particularly when providers are implicated for the following:
- Medicare exclusions
- State Medicaid termination
- On-site reviews conducted by CMS
- Failure to meet capitalization requirements
- Submitting false or misleading information
- Misusing billing ID numbers
- Prescribing authority suspension
- Failure to meet re-validation requirements
- Billing for services not provided / abusive billing practices
- Failure to comply with enrollment / documentation requirements
- Certain felony convictions (i.e. fraud, violent crimes, financial offenses, etc.)
- Failing to report changes of location or adverse actions within 30 days
Q: How long after a revocation do providers need to wait before re-enrollment?
A: CMS revocations of billing privileges are accompanied by re-enrollment bars which prohibit providers from re-enrolling in Medicare for a specified amount of time. That period of time depends on many factors, including the underlying reason for a revocation, but is typically between 1 to 3 years.
Q: When does the revocation take effect?
A: In many cases, revocation takes effect 30 days following receipt of a revocation notification. In others, and particularly those involving felony convictions, suspension of a medical license, or other final adverse enforcement actions, revocation effective dates can be retroactive. Providers who face retroactive revocation dates may be at risk of Medicare overpayment recoupment, and can challenge the effective date, or the revocation entirely, through an administrative process so as to avoid paying what may be substantial sums.
Q: What can providers do when facing revocation?
A: When facing Medicare billing revocation, providers have options for early intervention responses that may prevent the revocation, as well as an administrative appeals process. These options may escalate as follows:
- Reversal of revocation by terminating an owner or employee associated with the provider, when revocations are based on their convictions for a revocable felony;
- Corrective Action Plans (CAPs) and proof of current regulatory compliance. CAPs must be initiated as soon as possible, and submitted within 30 days from the date a revocation notice was received.
- Reconsideration requests submitted within 60 days of receiving a notice. As the first and most critical phase of the administrative appeals process, reconsideration requests should be supported by strong arguments, evidence, and documentation. CMS has discretion in evaluating arguments and mitigating factors when making final decisions.
- ALJ hearings requested within 60 days of an adverse reconsideration decision. These hearings involve an attorney who represents CMS and its interests, and may require the submission of written briefs, motions, evidence, and testimony.
- DAB / Federal Judicial Review – As with OIG Exclusion appeals, the final two stages of the Medicare Revocation appeals process involve requests for Departmental Appeals Board Hearings (within 60 days of the ALJ decision), and judicial review in Federal District Court.
Facing Medicare Exclusion or Revocation in Texas? Call (713) 909-7323
Hendershot Cowart P.C. has a nationally recognized health care and medical law practice that serves providers and suppliers throughout the industry, and throughout Houston and the state of Texas. Our award-winning attorneys are immediately available to discuss your Medicare matter and potential options for responses, appeals, and reconsiderations – and encourage you to reach out to our team as soon as possible. Our health care team also provides proactive counsel to health care clients who wish to position themselves and their practice in a compliant manner so as to reduce their risks for harmful enforcement actions.
Call (713) 909-7323 or contact us online. Our attorneys are readily available, and ready to help.
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