By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Many health professionals don’t understand the significant repercussions that an exclusion action by the Office of the Inspector General (OIG) can have on their professional careers and future employment. Whether you are a physician, nurse, dentist, psychologist or other health professionals, if you allow yourself to be excluded from the Medicare program, devastating economic results may follow.
The administrative process by which you may challenge a proposal from the OIG for most permissive or mandatory exclusion is challenging. In most cases, you will need experienced legal representation. Below are the steps in the process you must follow to protect your career and your livelihood.
The Administrative Process to Challenge OIG Exclusion Actions.
1. Notice of Intent (NOI) received: If the OIG is proposing to exclude a person or entity from Medicare, it will send out a letter called a “Notice of Intent” or “NOI.” This will contain the reasons for the exclusion and will detail hearing or appeal rights. It is very important to make sure that your state licensing board and Medicare have your correct current address on file because the address which Medicare has will be where the NOI is mailed. (Note: the OIG may not send a NOI for mandatory exclusions which carry a 5-year minimum exclusion period.) You will not have a second chance. Regardless, you usually only have 30 days to submit a written response requesting a hearing and containing information the OIG will consider in making its decision. In some cases, providers may have the opportunity to present oral arguments before OIG officials. You must make sure that your request is received by the deadline, not just mailed by the deadline. Send your request by a fast, reliable means (such as Federal Express or U.S. express mail) that you can track; or register for and file it electronically online. Read the instructions in the letter and follow them. Be sure you get a receipt when you file.
2. Notice of Exclusion (NOE): Sometimes the OIG will send a “Notice of Exclusion” or “NOE” if it decides to exclude a provider regardless of the response provided to a NOI or in certain cases of mandatory exclusions or certain permissive exclusions where no NOI is ever sent. Medicare exclusions usually take effect 20 days after the NOE is mailed. In cases involving fraud, kickbacks and other prohibited activities, a Notice of Proposal to Exclude or NOPE may be sent instead.
3. Administrative Law Judge (ALJ) Hearing: Providers have the right to appeal a proposed exclusion by requesting an administrative hearing (similar to a trial) before an “Administrative Law Judge” or “ALJ.” ALJ’s are part of the Department of Health and Human Services (HHS). If you wish to request an ALJ hearing, you must do so within 60 days of receiving the Notice of Exclusion (or according to the instructions), and you must be prepared to raise all of your arguments over issues regarding the decision itself, the proposed exclusion period, mitigating factors or other aspects of the action.
4. Department Appeals Board (DAB): If you disagree with the ALJ hearing decision, you can further appeal to the HHS “Departmental Appeals Board” or “DAB.” This is a written appeal which will be required to set forth legal errors which were made in the ALJ hearing.
5. Judicial Review: If you disagree with the decision made by the DAB, your only option is to challenge the final decision in a U.S. District Court.
MOST IMPORTANT, consult a health law attorney experienced in such matters. The consequences of Medicare exclusion, even a permissive exclusion for one year or three years, are severe. Most people do not realize this until it is too late; then it is too late (in many, but not all, cases).
To learn more about the consequences of OIG exclusion, click here to read one of my prior blogs.
Contact Attorney Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program.
The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).
To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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