Medicaid and Medicare Revocation

For a detailed posting regarding Medicare Part B revocations which appeared on a health lawyers’ listserv recently, click here.

There are some situations in which the law requires that the OIG to issue a mandatory exclusion from the Medicare Program, such as loss of the professional’s license or conviction of health care fraud. There are other situations in which exclusion from the Medicare Program will only result in a possible “permissive exclusion,” such as conviction of a nonhealth care related felony or discipline of a health professional’s license. This gives leeway to the OIG to determine whether or not it will ultimately exclude or suspend the provider from the Medicare Program. Regardless, the consequences are long-lasting and much more devastating to a health provider than might be imagined until it is experienced.

A person, organization or facility excluded from the Medicare Program will be placed on the List of Excluded Individuals and Entities (LIEE) maintained by HHS. All Medicare or Medicaid providers or contractors are required by law to check this before contracting with a health provider or employing a health provider. The law prohibits any Medicare, Medicaid or Federal Health Program from contracting with or employing in any way a person or organization that has been excluded. This even extends to any officer, director or shareholder of an organization that has been excluded.

Lesser known is the fact that if a person or organization is excluded or suspended from the Medicare Program, then they are automatically placed on the Excluded Parties List System (EPLS) maintained by the government Services Administration (GSA) and they are also “debarred” or excluded form being able to contract with the federal government (or any contractor of the federal government) for anything. This even extends to any officer, director or shareholder of an organization that has been excluded or debarred.

For example, this firm had a certified registered nurse anesthetist (CRNA) who had her nursing license revoked for drug abuse. This state action was reported to the Healthcare Integrity Program Data Bank (HIPDB), the sister data bank of the National Practitioner Data Bank (NPDB), maintained by HHS. As a result, the OIG was notified and commenced action to exclude the CRNA from the Medicare Program. The CRNA did not fight this as she did not intend to practice in the medical field any longer, as her husband and she had started a successful plumbing business. When she was excluded from the Medicare Program, she was placed on the List of Excluded Individuals and Entities (LIEE) maintained by HHS. She was also placed on the Excluded Parties List System (EPLS) maintained by the government Services Administration (GSA) and was debarred from government contracting. Later, after a major hurricane, the company owned by her and her husband had an opportunity to bid on a major government contract to work on government buildings and housing. Because she had been debarred, their bid was rejected by the government. (Note: some facts were changed to protect client confidentiality.)

With the Health Care Reform Act’s passage and recent crackdowns on health care fraud, more emphasis is being placed on disciplining providers, detecting and prosecuting fraud and ensuring that proper follow-up actions are taken. This has resulted in an unprecedented number of actions being commenced.

States have been required to become more aggressive in recovering fraudulent payments and overpayments in Medicaid cases, as well. A portion of the money they recover must be returned to the federal government since the federal government provides 55% of Medicaid funding. Many states have passed laws that require exclusion from the state’s Medicaid Program if the health provider has been found to have committed Medicaid fraud. Exclusion form a state’s Medicaid Program is also grounds for exclusion from the federal Medicare Program.

Many state’s have also passed laws that require revocation of the professional license of an individual who has been excluded from the state’s Medicaid Program. For example, in 2009, the Florida Legislature passed SB 1986 which became effective July 1, 2009. It amended Chapter 456 of Florida Statutes. It prohibits the florida Department of Health from issuing a license to or renewing a license of anyone excluded from the state’s Medicaid Program until that person has been reinstated back into the Medicaid Program and has been delivering services in it for at least five (5) years. This would be difficult for any health provider to do.

Additionally, we have seen an increased emphasis on auditing physicians and clinics that are involved in treating pain medicine patients. Medicaid, Medicare, TRICARE, and other government auditors have been instructed to closely scrutinize these in case fraud is being committed. Many are being prosecuted criminally or being investigated by the Florida Department of Health. We are seeing more DOH investigations being opened in cases where the physicians are writing or renewing prescriptions for large quantities of hydrocodone, Percocet, hydromorphone, Darvocet, Vicodin, Xanax, methadone, Soma and other controlled substances, especially in combination.

Because of the severe state budget shortfalls and the federal deficit, we are seeing a tremendous increase in Medicare and Medicaid fraud initiatives, including but not limited to: audits by Medicare Program ZPICs and RACs, use of Medicaid Fraud Control Unit (MFCU) Investigative Subpoenas to obtain records, Medicaid Fraud Control Unit (MFCU) Search Warrants used to seize patient records, billing records and computers, Medicaid audit letters from the Agency for Health Care Administration (AHCA), and related activities. In one ten (10) day period, we had clients who had their offices searched and records and equipment seized by the Medicaid Fraud Control Unit (MFCU); we had another client who had 77 patient records subpoenaed by a MFCU investigative subpoena; and we had a client who experienced a site visit/audit conducted on less than 18 hours notice by a ZPIC for Medicare.

Medicare, Medicaid and TRICARE now routinely share audit results and information on repayments made by health providers. We had a client who conducted a self-audit and found an overpayment situation. The client made a voluntary disclosure and sent in a voluntary repayment of the amount it had overbilled Medicare. A few weeks later it received an overpayment demand from the federal TRICARE Program based on the same patients and the same claims for the co-pays and deductibles that had been paid by TRICARE.

Under recently enacted Florida law, if Medicaid audits your practice and determines an overpayment, you must repay the entire amount within thirty (30) days or your medical license will be suspended, even if you deny you owe the money and request a hearing.

Medicare carriers (such as First Coast Service Options, Inc.) (now known as MACs) are in the process of making mailings to physicians, medical groups and facilities to be sure they have their correct mailing address on file. When the Medicare carriers receive notice that the mailing was sent to an invalid address (such as returned mail from the U.S. Postal Service), Medicare is deactivating that provider’s number. All practitioners are cautioned to verify through the Medicare Provider Enrollment Chain Ownership System (PECOS) or by calling their carriers, that all of their Medicare carriers have their current correct enrollment information, now and within 30 days of any address change. It is important to respond immediately and completely to any such revocation notice you receive by at least two different reliable, proveable, documented methods (such as U.S. certified mail with a return receipt requested and/or Federal Express with a tracking number). Do not rely on e-mail. Do not rely on telephone calls. Do not rely on telefaxing alone.

In a recent case of this nature, we promptly provided a well-thought-out, documented corrective action plan (CAP), requested a supervisory reconsideration and requested an appeal hearing, all at the same time. The carrier promptly reversed its decision to revoke the Medicare provider status of the client.

Prompt, precise and documented action is required to protect an individual’s rights and prevent an incorrect decision by a government agency or contractor. We do not ever recommend that you attempt to do this yourself.