New York Medicaid Exclusion Attorney
Our New York Medicaid and Medicare exclusion attorneys represent healthcare providers that have been excluded from participation in state and federal program such as Medicaid and Medicare as the result of criminal conviction, a disciplinary action, or an audit.
Although a person is innocent until proven guilty, unfortunately some agencies such as the Office of Medicaid Inspector General (OMIG) and the Department of Health take a different view. These agencies are empowered to safeguard the Medicaid program from potential fraud and abuse and they often take summary actions against providers if they believe that the provider’s further participation in the program is “unsafe”.
If you are a healthcare Medicaid provider and are charged with a crime that relates to the practice of medicine or another healthcare area, the Office of Medicaid Inspector General Medicaid will automatically suspend you from participating in the Medicaid program. This means that you will not be permitted to provide any services for which Medicaid is billed, which effectively eliminates most potential employments. It doesn’t even matter to them that you have not pleaded guilty and have not been found guilty and that you are presumed innocent until proven guilty. The regulations give the OMIG clear authority to exclude you just based on the fact of arrest.
What are the grounds for Medicaid Exclusion in New York
In New York, the there are a number of grounds a healthcare provider may be excluded from the Medicaid program. Combined, they are called “unacceptable practices”, which includes just about any conduct the OMIG or the Department of Social Services consider “unacceptable”
There are the common examples of unacceptable practices, which can result in Medicaid exclusion:
- Making fraudulent claims for services never provided or overbilling
- Ordering providing services that are not medically necessary or otherwise improper.
- Practicing a profession fraudulently
- Practicing beyond the scope of profession
- Practicing with license suspended or revoked
- Making claims for services provided by unauthorized personnel (including unlicensed individuals or those excluded from Medicaid)
- Failing to maintain or disclose record during an audit
- Kickback violations
- Being arrested or convicted for certain crimes
Medicaid Exclusion Process in New York
If the government believes that a provider has been involved in unacceptable practices, it may sanction the provider in several different ways. The provider will typically receive a letter (Notice of Proposed Action) from the Department of Health informing the provider that the they are about to sanctioned for the particular conduct and that the agency proposed an administrative action. The possible sanctions include exclusion or censure. The provider has 30 days from the date of the Notice to submit any documentation or written arguments against the proposed agency action.
Who Can be Sanctioned
A common misconception is that only healthcare providers directly involved with the case can be sanctioned. That is not true. Any affiliate of the provider may be subject to Medicaid exclusion by affiliation of the government believes that the facts and circumstances of the case support this. Here are some common examples of affiliated persons that can be sanctioned:
- Business partners or those with an ownership or controlling interest in a provider;
- Employees and managers of the provider;
- Provider’s subcontractors who earned more than $25,000 a year from dealing with the provider.
What happens once the provider is suspended
If a person is notified that he has engaged in unacceptable practices, Medicaid will withhold all payments to that person both for the present claims and the claims, which have been subsequently received. All payments will usually be suspended pending a resolution of the charges.
You have the right to an administrative hearing to determine if you engaged in the unacceptable practice and you must request the hearing within 60 days of the date of the notice.
If it is determined that you have been engaged in unacceptable practices, the Department of Health may do one of the following:
- Exclude you from being a Medicaid provider
- Freeze and withhold all payments
- Censure you
- Demand restitution payments for the funds it believes you were not entitled to receive.
Notice of Immediate Sanction
Although in most cases the provider is given time to address the notice of proposed action as explained above, in some cases the DOH can issue a notice of immediate sanction on 5 days notice. This can happen in the following cases:
- The provider has been suspended from Medicare
- The provider has been convicted of any Medicaid or Medicare fraud crime
- The provider has been charged with a healthcare felony crime;
- The provider has been found guilty of professional misconduct by a licensing agency and the misconduct is something that would constitute an unacceptable practice under the Medicaid regulations.
- The DOH believes that the person’s further participation in the Medicaid Program will endanger the public.
In the provider has been sanctioned in this manner, there is no right to an administrative hearing but he would have to respond within 30 days of the date of the notice of immediate sanction with any materials and arguments challenging the action. The appropriate grounds for such an argument would be that the action is based on mistake of fact or is otherwise inappropriate.
Any provider convicted of a felony offense that occurred after January 1, 1997, related to health care fraud is subject to automatic exclusion from Medicare or Medicaid for at least five years. The law provides for a minimum of three-years’ exclusion in cases that involve convictions of Medicare or Medicaid fraud.
Certain government agencies on state and federal level have essentially discretionary powers to exclude any provider whose participation in the government-funded program would in their opinion endanger the program.
Reinstatement to the Medicaid program
A provider who has been sanctioned may request reinstatement to the Medicaid program or removal of any condition or limitation on participation in Medicaid. When you can make this reinstatement application depends on several factors. Essentially, the reinstatement process is similar to the original enrolment application process but the sanctioned provider has a duty to demonstrate that the violations that led to sanction will not be repeated.
How to find best attorneys for NY OMIG and Medicaid Exclusion cases
A criminal conviction or a disciplinary action may adversely affect a physicians panel membership or hospital privileges. Entities such as insurance companies, hospitals, and HMOs have implemented procedures to determine their member’s fitness and have their own standards for accepting and dismissing physicians.
Different situations require various approaches. In cases involving audits experienced OMIG attorneys can prevent agency actions by timely designing OMIG compliance programs or working out settlement deals that do not involve extreme actions. In cases involving professional discipline in which providers are excluded from the program, an appeal could be taken to reverse the decision.
At Joseph Potashnik and Associates PC we represent New York healthcare professionals in all OMIG and DOH investigations and disciplinary cases. If you have been excluded from participation in the Medicaid or Medicare programs in New York call our defense lawyers today to set up a confidential consultation.