Collateral Consequence of Healthcare License Discipline – Medicare Exclusion

License discipline for professionals has significant collateral consequences. We have previously identified several of those consequences in prior blog entries – see, e.g.,  Top 5 Collateral Consequences of License Discipline. 

A unique collateral consequence of license discipline in the healthcare realm is its impact on the practitioner in participating in government reimbursement programs, such as Medicare, Medicaid, or Medi-Cal. You can simply be excluded from participating. And that exclusion can be for a significant amount of time – up to 5 years.

For many healthcare practitioners, exclusion from participating in government benefit reimbursement programs like Medicare is a career-killer. You may not be able to keep your independent practice afloat or you might be terminated. That is because once you have been notified that you are excluded, you must cease billing all-related health programs, at the state and/or federal level. 

Specifically, medicare exclusion for a physician/surgeon will likely cause:

  1. Termination from all State Medicaid programs;
  2. Loss of professional licenses in some states;
  3. Loss of hospital privileges;
  4. Exclusion from health insurance provider panels;
  5. Exclusion from all federally funded health programs (Medicare, Tricare, etc);
  6. GSA exclusion (debarment) from federal contracts.

Reasons for Medicare Exclusion

You can be excluded from Medicare for a variety of reasons outlined in 42 U.S.C. §1320a-7. Exclusion is mandatory for any of the following:

  1. Conviction of medicare-related crimes;
  2. Conviction relating to patient abuse;
  3. Felony conviction related to health care fraud; and
  4. Felony conviction related to a controlled substance.

However, the Office of Inspector General has the discretion to similarly exclude persons for any of the following:

  1. Conviction related to fraud;
  2. Conviction related to obstruction of an investigation or audit;
  3. Misdemeanor conviction related to a controlled substance;
  4. License discipline (i.e. revocation, suspension, surrender);
  5. Exclusion from other federal programs or state health programs;
  6. Excessive or unnecessary charges, or failure to furnish medically-necessary services;
  7. Fraud and kickbacks;
  8. Entity has Ownership, Director, Officer, Managing Employee that is a Sanctioned Individual;
  9. Failure to disclose required information;
  10. Failure to supply information on subcontractors, suppliers;
  11. Failure to provide payment information;
  12. Failure to grant immediate access to discern participation, payment, record keeping, or data;
  13. Failure to take corrective action;
  14. Default on health education loan or scholarship;
  15. Individual is Owner, Director, Officer, Managing Employee of a Sanctioned Entity; and
  16. Making false statements or misrepresentation.

Some Felony convictions can result in Medicare exclusion, especially those arising from health care fraud, or the unlawful manufacture, distribution, or prescription of dispensing controlled substances (drug trafficking). You can also be excluded from Medicare for a misdemeanor conviction related to obstruction of an investigation or controlled substances. State professional license suspension can also result in Medicare exclusion. Additionally, any individual who has engaged in fraud, kickbacks, and/or Stark violations can be excluded whether it results in a conviction or not.

How To Appeal Medicare Exclusion Decision

Given that Medicare exclusion is virtually career ending, if you are excluded from Medicare, you should appeal your Medicare exclusion by requesting a hearing before an Administrative Law Judge. You essentially have one (1) shot at an appeal. Thus, if you are a physician, dentist, physician assistant, pharmacist, chiropractor, or other licensed health professional, and you have been excluded from Medicare or believe you could be excluded from Medicare, it is imperative that you contact an experienced Medicare exclusion attorney today to discuss the possibility of appeal.

Pursuant to 42 CFR 402.214, you must request a hearing within sixty (60) days from the receipt of the notice of exclusion. The request for a Medicare exclusion hearing should be completed and/or reviewed by an experienced health law attorney and must include:

  1. A statement as to the specific issues the individual takes with the Medicare exclusion;
  2. Basis for the disagreement of the Office of Inspector General’s decision;
  3. Reasons why the proposed length of exclusion should be modified; and
  4. Reasons, if applicable, why the health or safety of Medicare beneficiaries does not warrant exclusion.

Required item 4 (above) is an important element if you wish for the exclusion to remain “stayed” pending the hearing. If it is not asserted, then the exclusion will go into effect as outlined in the Notice of Exclusion. If it is asserted, then the exclusion is stayed pending a decision by the initiating agency (e.g. Office of Inspector General) as to whether to agree or disagree with the assertion.

Failure to properly or timely petition for a Medicare exclusion hearing will result in loss of your right to appeal. Therefore, it is imperative that you file your request for a Medicare exclusion hearing within sixty (60) days ensure that it contains all of the necessary elements.