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Question: Is Exposure to COVID-19 For Nurses and Other Healthcare Workers, Causing Illness, Disability, or Death, Considered an Employment-Related Injury Under Workers’ Comp Coverage?

Attorney Amanda I. ForbesBy Amanda I. Forbes, J.D. and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In answering the question posed in the title of this blog, first, it should be noted that the World Health Organization (WHO) classifies COVID-19 as an “occupational disease.”  (Reference:  World Health Organization, “Coronavirus Disease (COVID-19) Outbreak: Rights, Roles and Responsibilities Of Health Workers. . . .”)

Click here to view the classification by the WHO on our website.

Most state workers’ compensation laws cover the worker for occupational diseases if the worker acquires it during the course and scope of their employment.  For example, Section 440.151(2), Florida Statutes, states:

Whenever used in this section the term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public. “Occupational disease” means only a disease for which there are epidemiological studies showing that exposure to the specific substance involved, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee.

Section 440.151(2), Florida Statutes, (emphasis added).  Many other states have similar requirements to those of Florida.

Healthcare workers are at the front line of any outbreak response and as such are exposed to hazards that put them at an increased risk of infection with the COVID-19 virus.  Therefore, as COVID-19 meets the criteria as an “occupational disease.”

Moreover, Section 440.151(1)(a), Florida Statutes, states:

Where the employer and employee are subject to the provisions of the Workers’ Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, the employee’s dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided.  Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease. Major contributing cause must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing. “Nature of the employment” means that in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations. In claims for death under s. 440.16, death must occur within 350 weeks after last exposure. Both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence.

Section 440.151(1)(a), Florida Statutes.

It is important to note that COVID 19 or any other communicable disease (TB, H1N1, etc.):  The employee has to test positive for the disease/contagion and it must be determined with a reasonable amount of certainty that their exposure to the virus occurred in the workplace and was not community-acquired.

In addition,  per Section 440.151(1)(c), Florida Statutes states:

Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation shall be payable only if the occupational disease is the major contributing cause of the injury. Any compensation shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants. Major contributing cause must be demonstrated by medical evidence based on physical examination findings and diagnostic testing.

Section 440.151(1)(c), Florida Statutes, (emphasis added).

With regard to emergency medical technicians (EMTs) or paramedics Section 440.09(3), Florida Statutes, states:

If an emergency medical technician or paramedic is appointed or employed full time by a municipality, the state, or any political subdivision, is certified under chapter 401.23, in an emergency situation in this state, any such activities would be considered to be within the course of his or her employment and an emergency medical technician or paramedic and covered by the employer’s jurisdiction or area of responsibility, such activities are considered to be within the course of employment. The provisions of this subsection do not apply if the emergency medical technician or paramedic is performing activities for which he or she is paid by another employer of contractor.

Section 440.09(3), Florida Statutes (emphasis added).

Workers Compensation Benefits for Healthcare Professionals.

As of March 26, 2020, Florida has not issued any order or legislation explicitly stating that healthcare professionals exposed to COVID-19 will be entitled to Workers Compensation benefits.

By way of example, In the City of Phila. v. Workers’ Comp. Appeal Bd. (Sites), 889 A.2d 129 (Pa. Commw. Ct. 2005), a claimant was successful in proving that his hepatitis C was caused by his exposure to blood that occurred while working as a firefighter and emergency medical technician  (EMT).  Similar to COVID-19, hepatitis C was also classified as a compensable “occupational disease.”  Therefore, it is likely that a healthcare professional’s exposure to COVID-19 would result in viable workers’ compensation claim.

Federal workers’ compensation laws are similar to those quoted above. Therefore, federal health care providers and those working in federal facilities will also most probably be entitled to federal employment compensation (FECA) benefits under similar situations.

We want to emphasize that this is merely our preliminary opinion based on limited analysis and research.  It is provided for informational purposes only. It does not constitute the provision of legal advice.  Each state has different workers’ compensation laws and different case law, as does the federal government. Each individual set of circumstances may be different. Contact your local workers’ compensation plaintiff’s (claimant’s) attorney for advice and representation in your individual case.

For more information and more examples of employment compensation benefit cases for health care professionals, click here.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals.  This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical student professors and clinical staff. We represent facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, in patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.ThehealthLawFirm.com.

About the Authors:  Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office.  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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

Will a Death from COVID-19 be Considered “Accidental Death” for Life Insurance Policies or a Death from “Accidental Causes?”

Attorney George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Almost all life insurance policies, including term policies, pay a “double indemnity,” that is, double the limits of coverage if a death occurs from “accidental causes” as opposed to “natural causes.”  A question arises, given the COVID-19 pandemic, of whether a death caused by the novel corona versus would be considered a natural death or an accidental death.  Fortunately, there is some guidance on this issue.

One reason it is important to distinguish between “accidental death” and “natural death” is that:

There is no pandemic exclusion for life insurance.  General life insurance covers pandemics, assuming you were truthful about your travel plans and exposure to illness during the application process.  . . . .  An accidental death & dismemberment policy is more limited and covers deaths only when they’re accidental.  It generally doesn’t [usually] cover deaths caused by illness and disease.

Nat’l Ass’n of Ins. Comm’rs, COVID-19 & Ins. (2020), https://content.naic.org/sites/default/files/inline-files/Insurance%20Brief%20-%20Covid-19%20and%20Insurance.pdf. (Emphasis added).

Definition of “Accidental Death”

According to Black’s Law Dictionary, an “accidental death” is defined as:  “A death that results from an unusual event, one that was not voluntary, intended, expected, or foreseeable.”  Accidental Death, Black’s Law Dictionary (4th pocket ed. 2011).  Likewise, Ballentine’s Law Dictionary states than an “accidental death” is:

One that occurs unforeseen, undesigned, and unexpected. 29 Am J Rev ed Ins § 1166.  One which occurs by accident, that is, was not designed or anticipated, albeit it may occur in consequence of a voluntary act.

Accidental Death, Ballentine’s Law Dictionary (3rd ed. 1969).

Under the above two definitions, definitions that are usually considered to come from the common law, death from the COVID-19 virus would be considered to be an “accidental death.”

Look to State Insurance Laws for Definitions.

One should also immediately look at the state’s insurance statutes to see if their state’s law defines “accidental death” in terms of insurance coverage.  As an example, Florida law provides such definitions in Chapter 627 of Florida Statues which deals with insurance contracts.

Section 627.429(5)(c), Florida Statutes, is of particular note.  Regarding death from HIV, for example, it states:

Except for preexisting conditions specifically applying to sickness or medical condition of the insured, benefits under a life insurance policy shall not be denied or limited based on the fact that the insured’s death was caused, directly or indirectly, by exposure to the HIV infection or a specific sickness or medical condition derived from such infection. This paragraph does not prohibit the issuance of accidental death only or specified disease policies.

Section 627.429(5)(c), Florida Statutes (emphasis added).

This is significant because the Human Immunodeficiency Virus (HIV) is a very slow-acting disease that harms one’s immune system by destroying the white blood cells that fight infection.  Death may not occur for years, even decades from an infection.  Whereas, COVID-19 is a fast-acting respiratory virus.  If death from HIV could be considered an “accidental death,” than death from COVID-19 certainly could be classified as “accidental death,” as well.


Legal Arguments for “Accidental Death”

If you have a death in your family and there is life insurance coverage on that person, you should not accept the insurance company’s determination that the death is from “natural causes” as opposed to “accidental death.” Challenge this decision, in court, if necessary.

A death caused by the COVID-19 virus is clearly “from an unusual event.”  I doubt that anyone would even contest this issue.  It is also clearly “one that was not voluntary, intended, [or] expected.”  Again, the novel coronavirus pandemic has taken the world by surprise.  How can anyone in their right mind argue that it was truly “expected.”  “Foreseeable” would be an objective test as to whether this was something “reasonably foreseeable.”  It does not appear, from the shock and unreadiness displayed by state and national governments and health officials, that this event was truly reasonably foreseeable.

I did not foresee it, did you?  If 99.999% of the populace did not foresee it, how can it be argued that it is reasonably foreseeable?  At the very least, this is a jury question and the foregoing should be argued to the jury.  If the average reasonable man (the man who is a legal fiction) did not foresee this pandemic and the deaths that result, how can it not be an “accidental death”?  It seems that any jury would be hard-pressed to find other than an “accidental death.”

 
Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals.  This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical student professors and clinical staff. We represent facilities, individuals, groups and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, in patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

How Can I Be Sure I Don’t Have Employees, Contractors Who Are on Medicare’s Exclusion List?

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
We are often consulted by companies in the health care industry and by health professionals after they receive a subpoena or audit regarding their employing or contracting with an individual or business that is on the Office of the Inspector General’s (OIG’s) List of Excluded Individuals and Entities (LEIE), who are prohibited from contracting with Medicare. This can cause devastating consequences since the law prohibits this by anyone contracting with the government or receiving any payments from any government healthcare program from dealing with these persons. This includes anyone contracting with or receiving payment from Medicare, Medicaid, Tricare, the Veterans Administration, and the military, among others. It can also lead to a demand for repayment of claims for services or products provided, as well as civil monetary penalties, fines, and other adverse actions.

To ensure that you do not violate the federal laws and regulations involved, you should check the OIG’s online LEIE for every new employee or contractor with whom you deal.

Be sure that you also check for any other names (maiden names, married names, fictitious business names) and the names of the officers, directors, shareholders, and owners of any business entities.

This should be on your new employee checklist (kept in the personnel file) and your contracting checklist for new contracts.

If you have not previously done this, have your administrator, human relations (HR) director or contracting officer do this right now and place the results in the personnel file or contracting file for each one checked.

You might also adopt a form similar to this and have it completed by all new employees or contractors as a part of the new employee check-in process. You are still responsible for verifying non-exclusion for all contractors and employees, but this form may help eliminate some problems from the outset and will educate all of your employees and contractors to the requirements.

Visit our website and view an example form.

To learn more about how OIG exclusion can affect you, click here to read of our prior blogs.

Don’t let Medicare or Medicaid exclusion ruin your professional career. Click here to learn how The Health Law Firm and help you if you find yourself on the OIG list.

Contact Health Law Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program and Assisting in Reinstatement Applications.

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 the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020. The Health Law Firm. All rights reserved.

By |2020-03-13T18:53:30-04:00March 13th, 2020|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Mental Health Professionals: You Must Challenge Overpayment Demands from Medicare and Medicaid Audits

Headshot of The Health Law Firm's attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
We have gotten calls from many mental health professionals who have been placed on prepayment review after failing to challenge Medicare or Medicaid audit results. Once placed on prepayment review, the payments are held up for many months. Some providers are even forced out of business as a result.

Failing to challenge, follow-up on, and appeal any adverse audit results can be very detrimental. An error rate above 15% will usually result in the provider being placed on prepayment review.

What Happens During Prepayment Review.

While on prepayment review, the provider will be required to submit documentation for medical records by mail to support each claim submitted. Additionally, they must have those claims and supporting documentation audited, before any claims are paid. Often, the auditing agency will come back to the provider repeatedly to demand additional information and documentation on claims instead of immediately processing them. This can hold up the processing of the claim for months. Often, the resulting termination of income flow will force the provider out of business. This saves the government lots of money because the provider has then provided services to Medicare or Medicaid recipients for many months without getting paid for it.

These are some of the reasons why we recommend that healthcare providers always hire a Board Certified Health Law Attorney experienced in Medicare and Medicaid audits from the very beginning.

A Real-Life Example of the Trouble Caused by a Medicare Audit.

In one case we are familiar with, a therapist was audited by Medicare. The audit by the Medicare administrative contractor (MAC) requested only 30 records. The therapist provided copies of the records he thought the auditors wanted. He did not number the pages or keep an exact copy of what he provided. The MAC came back and denied 1% of the claims audited.

However, since the amount demanded back by the MAC was only a few thousand dollars, the therapist never hired an attorney and never challenged the results. Instead of retaining legal counsel and appealing the results, the therapist paid the entire amount, thinking that was the easy way out.

Unfortunately, because of the high error rate, the MAC immediately placed the therapist on a prepayment review of all claims, assuming the prior audit had disclosed fraud or intentional false coding. All claims the provider submitted from that point on had to be submitted on paper with supporting medical records sent in by mail. The MAC refused to decide on any of the claims, instead, holding them and requesting additional documentation and information from time to time. As a result, the therapist has most of his claims tied up in prepayment review, some for as long as five months with no-decision.

The therapist conveyed to me that he contacted the auditor to attempt to obtain decisions on some of his claims so that he could at least begin the appeal process if the claims are denied. He advised me that the auditor at the MAC expressed surprise that he was still in business.

Challenge Improperly Denied or Reduced Claims.

These situations are very unfair and unjust, especially to smaller healthcare providers. The reduced cash flow even for a month or two may be enough to drive some small providers out of business. Larger healthcare providers have vast resources sufficient to handle such audit situations on a routine basis. They may have similar problems but are better equipped and have more resources to promptly handle it. Rather than immediately pay whatever amount is demanded on an audit and waive any appeal/review rights, the provider should review each claim denied or reduced and challenge the ones that have been improperly denied or reduced. Otherwise, you may wind up with a high error rate which will cause you to be placed into prepayment review. Once placed in the prepayment review, it is difficult to get out of it. Often, it takes six months or longer.

Don’t Get Caught Up in the Audit Cycle.

The audit contractors will keep you on an audit cycle for many future audits if they are successful in obtaining any sort of recovery from you on the initial audit. This is similar to what happens if your tax return is audited by the Internal Revenue Service (IRS). If they recover a significant payment from you because you did not have the documentation to support your deductions, you can expect to be audited for at least the next two years.

The value of competent legal representation at the beginning of an audit cannot be overestimated. It is usually long after the audit is over, and the time to appeal the audit agency’s findings has passed, that the health care provider realizes he should have retained an audit consultation.

Click here to read one of my prior blogs about Medicare audits and challenging an OIG exclusion.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

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 the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Healthcare fraud representation, healthcare fraud defense lawyer, Office of Inspector General (OIG) Medicare exclusion attorney, OIG investigation legal defense representation, OIG exclusion defense attorney, OIG exclusion defense lawyer, Medicare audit defense legal counsel, Office of Inspector General (OIG) Medicare exclusion defense counsel, Medicare audit defense attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, Medicare exclusion hearing defense attorney, Medicare administrative law judge hearing legal representation, Medicare administrative law judge hearing defense attorney, Medicare and Medicaid audit defense attorney, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, Centers for Medicare and Medicaid (CMS), legal representation for CMS investigations, health care professional defense attorney, legal representation for health care professionals, legal representation for fraud investigations, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud representation, allegations of healthcare fraud, representation for CMS investigations, representation for healthcare investigations, representation for medical overbilling, False Claims attorney, FCA lawyer, FCA attorney, representation for submitting False Claims, representation for overbilling Medicare, medical overbilling, allegations of overbilling Medicaid, FCA defense lawyer

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2019 The Health Law Firm. All rights reserved.

By |2019-12-05T23:32:46-05:00December 5th, 2019|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Dentists: Challenge Overpayment Demands from Medicare, Medicaid Audits!

Attorney Indest headshotDuring our years of experience, we have gotten many calls from dentists who have been placed on prepayment review after failing to challenge the results of Medicare and Medicaid audits. Once placed on prepayment review, the payments are held up for many months. Some providers are even forced out of business as a result.

Failing to challenge, follow-up on, and appeal any adverse results of Medicare and Medicaid audits can be very detrimental. An error rate above 15% will usually result in the provider being placed on prepayment review.


What Happens During Prepayment Review.

While on prepayment review, the dentist or provider will be required to submit documentation for medical records by mail to support each claim submitted. Additionally, they must have those claims and supporting documentation audited, before any claims are paid. Often, the auditing agency will come back repeatedly to demand additional information and documentation on claims instead of immediately processing them. This can hold up the processing of the claim for months. Often, the resulting termination of income flow will force the dentist or other healthcare providers out of business. This saves the government lots of money because the provider has then provided services to Medicare or Medicaid recipients for many months without getting paid for it.

These are some of the reasons why we recommend that dentists and all healthcare providers always hire a Board Certified Health Law Attorney experienced in Medicare and Medicaid audits from the very beginning.

Here’s an Example of the Trouble Caused by a Medicare Audit.

In one case we are familiar with, a therapist was audited by Medicare. The audit by the Medicare administrative contractor (MAC) requested only 30 records. The therapist provided copies of the records he thought the auditors wanted. He did not number the pages or keep an exact copy of what he provided. The MAC came back and denied 1% of the claims audited.

However, since the amount demanded back by the MAC was only a few thousand dollars, the therapist never hired an attorney and never challenged the results. Instead of retaining legal counsel and appealing the results, the therapist paid the entire amount, thinking that was the easy way out.

Unfortunately, because of the high error rate, the MAC immediately placed the therapist on a prepayment review of all claims, assuming the prior audit had disclosed fraud or intentional false coding. All claims the provider submitted from that point on had to be submitted on paper with supporting medical records sent in by mail. The MAC refused to decide on any of the claims, instead, holding them and requesting additional documentation and information from time to time. As a result, the therapist has most of his claims tied up in prepayment review, some for as long as five months with no-decision.

The therapist conveyed to me that he contacted the auditor to attempt to obtain decisions on some of his claims so that he could at least begin the appeal process if the claims are denied. He advised me that the auditor at the MAC expressed surprise that he was still in business.

You Must Challenge All Improperly Denied or Reduced Claims.

These situations are very unfair and unjust, especially to smaller healthcare providers. The reduced cash flow even for a month or two may be enough to drive some small providers out of business. Larger healthcare providers have vast resources sufficient to handle such audit situations on a routine basis. They may have similar problems but are better equipped and have more resources to promptly handle it. Rather than immediately pay whatever amount is demanded on an audit and waive any appeal/review rights, the provider should review each claim denied or reduced and challenge the ones that have been improperly denied or reduced. Otherwise, you may wind up with a high error rate which will cause you to be placed into prepayment review. Once placed in the prepayment review, it is difficult to get out of it. Often, it takes six months or longer.

Don’t Let Yourself Get Caught Up in the Never-Ending Audit Cycle.

The audit contractors will keep you on an audit cycle for many future audits if they are successful in obtaining any sort of recovery from you on the initial audit. This is similar to what happens if your tax return is audited by the Internal Revenue Service (IRS). If they recover a significant payment from you because you did not have the documentation to support your deductions, you can expect to be audited for at least the next two years.

The value of competent legal representation at the beginning of an audit cannot be overestimated. It is usually long after the audit is over, and the time to appeal the audit agency’s findings has passed, that the health care provider realizes he should have retained an audit consultation.

Click here to read one of my prior blogs about Medicare audits and challenging an OIG exclusion.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

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 the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Healthcare fraud representation, healthcare fraud defense lawyer, Office of Inspector General (OIG) Medicare exclusion attorney, OIG investigation legal defense representation, OIG exclusion defense attorney, OIG exclusion defense lawyer, Medicare audit defense legal counsel, Office of Inspector General (OIG) Medicare exclusion defense counsel, Medicare audit defense attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, Medicare exclusion hearing defense attorney, Medicare administrative law judge hearing legal representation, Medicare administrative law judge hearing defense attorney, Medicare and Medicaid audit defense attorney, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, Centers for Medicare and Medicaid (CMS), legal representation for CMS investigations, health care professional defense attorney, legal representation for health care professionals, legal representation for fraud investigations, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud representation, allegations of healthcare fraud, representation for CMS investigations, representation for healthcare investigations, representation for medical overbilling, False Claims attorney, FCA lawyer, FCA attorney, representation for submitting False Claims, representation for overbilling Medicare, medical overbilling, allegations of overbilling Medicaid, FCA defense lawyer

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2019 The Health Law Firm. All rights reserved.

By |2019-11-12T17:55:46-05:00November 6th, 2019|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

CMS Announces Final Rule to Reduce Criminal Behavior in Medicare, Medicaid

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 5, 2019, the Centers for Medicare & Medicaid Services (CMS) issued a final rule that strengthens the ability to stop fraud and abuse before it happens. The “Program Integrity Enhancements to the Provider Enrollment Process” goes into effect on November 4, 2019, and will help keep untrustworthy providers out of federal health insurance. The new affiliations provision will allow CMS to identify individuals and organizations that pose an undue risk of fraud, waste or abuse and repeat offenders.

Details on the Rule.

The final rule, (CMS-6058-FC), creates several new revocation and denial authorities to enhance CMS’ efforts to stop fraud and abuse.

Similar to the affiliations component, these authorities provide a basis for administrative action to revoke or deny, as applicable, Medicare enrollment if:

• A provider or supplier circumvents program rules by coming back into the program, or attempting to come back in, under a different name (e.g. the provider attempts to “reinvent” itself);

• A provider or supplier bills for services/items from non-compliant locations;

• A provider or supplier exhibits a pattern or practice of abusive ordering or certifying of Medicare Part A or Part B items, services or drugs; or

• A provider or supplier has an outstanding debt to CMS from an overpayment that was referred to the Treasury Department.

Additionally, the rule gives CMS the ability to prevent applicants from enrolling in the program for up to three years if found to have submitted false or misleading information in its initial enrollment application.

Furthermore, the new rule expands the re-enrollment bar that prevents fraudulent or otherwise problematic providers from re-entering the Medicare program. CMS can now block providers and suppliers who are revoked from re-entering the Medicare program for up to 10 years. Previously, revoked providers could only be prevented from re-enrolling for up to three years.

Additionally, if a healthcare provider or supplier is revoked from Medicare for a second time, CMS can now block him/her from re-entering the program for up to 20 years. These new authorities and restrictions are effective on November 4, 2019.

For more information, click here to view the final rule with comment.

To learn more about the Medicare enrollment application process, click here to read my prior blog.

Don’t Wait Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The lawyers of The Health Law Firm routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes and other healthcare providers in Medicare and Medicaid investigations, audits and recovery actions. They also represent them in preparing and submitting corrective action plans (CAPs), requests for reconsideration, and appeal hearings, including Medicare administrative hearings before an administrative law judge. Attorneys of The Health Law Firm represent health providers in actions initiated by the Medicaid Fraud Control Units (MFCUs), in False Claims Act cases, in actions initiated by the state to exclude or terminate from the Medicaid Program or by the HHS OIG to exclude from the Medicare Program.

Call now at (407) 331-6620 or (850) 439-1001 or visit our website www.TheHealthLawFirm.com.

Sources:

Kacik, Alex. “CMS targets healthcare providers’ affiliates in new rule.” Modern Healthcare. (September 5, 2019). Web.

“CMS Announces New Enforcement Authorities to Reduce Criminal Behavior in Medicare, Medicaid, and CHIP.” Orlando Medical News. (September 5, 2019). Web.

“CMS takes action to keep fraudsters out of Medicare and Medicaid.” CMS.gov. (September 5, 2019). Web.

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.

KeyWords: Healthcare fraud representation, healthcare fraud defense lawyer, Office of Inspector General (OIG) Medicare exclusion attorney, OIG investigation legal defense representation, OIG exclusion defense attorney, OIG exclusion defense lawyer, Medicare audit defense legal counsel, Office of Inspector General (OIG) Medicare exclusion defense counsel, Medicare audit defense attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, Medicare exclusion hearing defense attorney, Medicare administrative law judge hearing legal representation, Medicare administrative law judge hearing defense attorney, Medicare and Medicaid audit defense attorney, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, Centers for Medicare and Medicaid (CMS), legal representation for CMS investigations, health care professional defense attorney, legal representation for health care professionals, legal representation for fraud investigations, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud representation, allegations of healthcare fraud, representation for CMS investigations, representation for healthcare investigations, representation for medical overbilling, False Claims attorney, FCA lawyer, FCA attorney, representation for submitting False Claims, representation for overbilling Medicare, medical overbilling, allegations of overbilling Medicaid, FCA defense lawyer

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2019 The Health Law Firm. All rights reserved.

By |2019-09-24T17:57:33-04:00September 24th, 2019|Categories: The Health Law Firm Blog, Uncategorized|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Follow These Steps to Challenge OIG Exclusion From Medicare

Headshot of The Health Law Firm's attorney George F. Indest IIIBy 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.

How 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.

KeyWords: Office of Inspector General (OIG) Medicare exclusion attorney, OIG investigation legal defense representation, OIG exclusion defense attorney, OIG exclusion defense lawyer, Medicare audit defense legal counsel, Office of Inspector General (OIG) Medicare exclusion defense counsel, Medicare audit defense attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, Medicare exclusion hearing defense attorney, Medicare administrative law judge hearing legal representation, Medicare administrative law judge hearing defense attorney, Medicare and Medicaid audit defense attorney, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, Centers for Medicare and Medicaid (CMS), legal representation for CMS investigations, health care professional defense attorney, legal representation for health care professionals, legal representation for fraud investigations, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud representation, allegations of healthcare fraud, representation for CMS investigations, representation for healthcare investigations, representation for medical overbilling, False Claims attorney, FCA lawyer, FCA attorney, representation for submitting False Claims

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2019 The Health Law Firm. All rights reserved.

The Administrative Process to Challenge OIG Exclusion Actions

George Indest HeadshotBy 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.

How 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.

KeyWords: Office of Inspector General (OIG) Medicare exclusion attorney, OIG investigation legal defense representation, OIG exclusion defense attorney, OIG exclusion defense lawyer, Medicare audit defense legal counsel, Office of Inspector General (OIG) Medicare exclusion defense counsel, Medicare audit defense attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, Medicare exclusion hearing defense attorney, Medicare administrative law judge hearing legal representation, Medicare administrative law judge hearing defense attorney, Medicare and Medicaid audit defense attorney, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, Centers for Medicare and Medicaid (CMS), legal representation for CMS investigations, health care professional defense attorney, legal representation for health care professionals, legal representation for fraud investigations, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud representation, allegations of healthcare fraud, representation for CMS investigations, representation for healthcare investigations, representation for medical overbilling, False Claims attorney, FCA lawyer, FCA attorney, representation for submitting False Claims

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2019 The Health Law Firm. All rights reserved.

By |2019-06-18T20:09:54-04:00August 14th, 2019|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Steps to Challenge OIG Exclusion Action from Medicare Program

George Indest HeadshotBy 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.

KeyWords: Office of Inspector General (OIG) Medicare exclusion attorney, OIG investigation legal defense representation, OIG exclusion defense attorney, OIG exclusion defense lawyer, Medicare audit defense legal counsel, Office of Inspector General (OIG) Medicare exclusion defense counsel, Medicare audit defense attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, Medicare exclusion hearing defense attorney, Medicare administrative law judge hearing legal representation, Medicare administrative law judge hearing defense attorney, Medicare and Medicaid audit defense attorney, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, Centers for Medicare and Medicaid (CMS), legal representation for CMS investigations, health care professional defense attorney, legal representation for health care professionals, legal representation for fraud investigations, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud representation, allegations of healthcare fraud, representation for CMS investigations, representation for healthcare investigations, representation for medical overbilling, False Claims attorney, FCA lawyer, FCA attorney, representation for submitting False Claims

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2019 The Health Law Firm. All rights reserved.

By |2019-06-18T20:03:35-04:00July 30th, 2019|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

How to Challenge an OIG Exclusion Action from Medicare

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.

KeyWords: Office of Inspector General (OIG) Medicare exclusion attorney, OIG investigation legal defense representation, OIG exclusion defense attorney, OIG exclusion defense lawyer, Medicare audit defense legal counsel, Office of Inspector General (OIG) Medicare exclusion defense counsel, Medicare audit defense attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, Medicare exclusion hearing defense attorney, Medicare administrative law judge hearing legal representation, Medicare administrative law judge hearing defense attorney, Medicare and Medicaid audit defense attorney, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, Centers for Medicare and Medicaid (CMS), legal representation for CMS investigations, health care professional defense attorney, legal representation for health care professionals, legal representation for fraud investigations, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud representation, allegations of healthcare fraud, representation for CMS investigations, representation for healthcare investigations, representation for medical overbilling, False Claims attorney, FCA lawyer, FCA attorney, representation for submitting False Claims

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2019 The Health Law Firm. All rights reserved.

By |2019-06-18T19:59:06-04:00July 9th, 2019|Categories: Pharmacy Law Blog, Uncategorized|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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