You may appeal OIG’s decision to exclude you. You may also apply for reinstatement. But you need to act promptly and with professional help. The process is complicated, and the deadlines are very short.
Answers to Frequently Asked Questions (FAQ)
What are the grounds for exclusion from the Medicare program?
The most common reason for Medicare exclusion is a criminal conviction. The Medicare program is required to exclude you (called "mandatory exclusion") if you are convicted of certain felonies such as those involving healthcare fraud or violations of controlled substances laws. You may also be excluded from the Medicare program (called "permissive exclusion") based on a misdemeanor conviction, a suspension of your professional license, exclusion from a State Medicaid program, or participation in healthcare fraud, kickbacks, or Stark law violations even if you were never convicted of a crime.
When is Medicare exclusion mandatory?
The HHS Office of Inspector General (OIG) must exclude you from participation in all federal healthcare programs if you are convicted of certain criminal offenses. The types of criminal offenses that result in mandatory exclusion are:
When is Medicare exclusion permissive?
The OIG may but is not required to exclude you for engaging in other conduct, including conduct that does not involve Medicare or Medicaid. For example, a misdemeanor conviction for submitting false claims to a private insurance company may result in exclusion from federal healthcare programs. Even defaulting on student loans may result in exclusion.
The grounds for permissive exclusion include:
What are the consequences of exclusion from Medicare?
Exclusion from the Medicare program has a devastating impact on your career. Once you receive notice that you have been excluded from Medicare, you must stop billing all federally funded healthcare programs. You need to address this situation immediately to protect your rights, your livelihood, and your professional license.
Exclusion from Medicare will affect your ability to practice your profession. It could also end your career. In addition to losing your ability to bill Medicare:
Who can be excluded from the Medicare program?
Anyone who provides services to Medicare recipients can be excluded from the Medicare program.
How much time do I have to appeal my exclusion from Medicare?
You have only one chance to appeal your exclusion from Medicare, and that appeal must be filed within 60 days of your notice of exclusion. The deadline to challenge Medicare exclusion is strictly enforced.
It is critical that you get an experienced Medicare exclusion appeals lawyer on your side immediately. Your appeal will be dismissed without review if you miss the filing deadline. Moreover, your lawyer will need time to develop your arguments and evidence for a successful appeal.
How do I appeal my exclusion from Medicare?
Your appeal begins with a request for a hearing before an administrative law judge (ALJ). The ALJ is permitted to decide only two issues: (a) whether there is a legitimate basis for the exclusion; and (b) whether the duration of the exclusion is unreasonable.
The request for a hearing must describe the specific issues or findings of fact and conclusions of law in the notice of exclusion that you challenge, the basis for your challenge, the defenses that you intend to assert, why the proposed length of exclusion should be modified, and why the health or safety of Medicare beneficiaries does not warrant exclusion from the Medicare program.
A timely filed written request for a hearing must include:
If you do not file a timely request for a hearing, you lose your right to appeal. Therefore, it is imperative that you file your request for a Medicare exclusion hearing within 60 days and ensure that it contains all the necessary elements. Failure to properly petition for a Medicare exclusion hearing will result in the loss of your right to appeal.
If you are granted a hearing, your attorney will present arguments to the ALJ assigned to your case. If the Medicare exclusion was in error, you will be reinstated. If the exclusion was proper but the duration was too long, the period of exclusion will be shortened.
Given that your career is at stake, an exclusion appeal is too important to handle on your own. You need an experienced exclusion appeals advocate who can help you develop the evidence and present it in a cohesive, compelling argument.
What do I have to prove in order to win a Medicare exclusion appeal?
In order to win your exclusion appeal, you must prove either: (a) that there was no basis for excluding you from the Medicare program; or (b) that the duration of the exclusion period is unreasonable.
The Administrative Law Judge (ALJ) is not allowed to rule in your favor for any other reason. And if the period of exclusion is one year or less, the ALJ is not allowed to find that the duration is unreasonable.
Winning an exclusion appeal, therefore, requires a thorough understanding of both the facts and the rules and regulations governing exclusion decisions.
How do I apply for reinstatement to Medicare?
Medicare reinstatement after exclusion is not automatic. You must file an application for reinstatement to the Medicare program.
You are allowed to file your application for reinstatement 90 days before the expiration of your Medicare exclusion period. OIG’s decision could take up to six months, so it is critical that you file your application for reinstatement as soon as you are allowed to do so.
Your application for reinstatement must include a written request and a statement of the reasons for reinstatement with the relevant authorization forms.
OIG will review your application for reinstatement and send you a written notification of its decision. If OIG denies your application for reinstatement to the Medicare program, then you must wait a full year before submitting another reinstatement application.
What are the criteria for reinstatement to Medicare after a period of exclusion?
Applying for reinstatement requires careful thought and strategy. You need to provide evidence that you have complied with all requirements of any civil penalties or criminal sentence such as court-ordered restitution and probation. You need to provide evidence that you have complied with any professional disciplinary sanctions. Most importantly, you need to convince OIG that, whatever caused you to be on the exclusion list in the first place, you will not end up on the exclusion list ever again.
The best way to increase your chances of a successful reinstatement application is to consult with an attorney who has handled a large number of reinstatement applications. Given the importance of your reinstatement application, it makes sense to retain a lawyer who specializes in OIG exclusion appeals and reinstatement applications.
Why should I choose The Howley Law Firm?
Our lawyers have more than 30 years of experience representing healthcare companies and medical professionals. Our practice is focused on Medicare and Medicaid fraud, and we are recognized experts in this complex area of law. In fact, we train other lawyers with our Continuing Legal Education (CLE) courses on the False Claims Act and Advanced Topics in Medicare and Medicaid Fraud.
Our experience includes working as registered lobbyists in Albany and Washington, D.C., negotiating with prosecutors, investigators and auditors, trying cases before judges and juries throughout the United States, and arguing appeals in state and federal courts including in the U.S. Supreme Court.