Challenging Exclusion from Federal Healthcare Programs

Being excluded from participating in federal healthcare programs like Medicare and Medicaid can have devastating consequences for healthcare providers. An exclusion means you are banned from billing these programs for services, essentially cutting off a major source of patient referrals and revenue.

However, not all hope is lost if you receive notice of a proposed exclusion. You have the right to challenge the exclusion through several levels of appeals. Here is what you need to know about the exclusion process and how to fight back if you find yourself facing this situation.

Understanding Exclusion Basics

The Office of Inspector General (OIG) is responsible for overseeing exclusions from federal healthcare programs. There are two main types of exclusions:

• Mandatory exclusions – Required by law for convictions of certain criminal offenses like Medicare/Medicaid fraud, patient abuse or neglect. No discretion is involved.
• Permissive exclusions – OIG has discretion to exclude for other reasons like license revocation, kickback arrangements, defaulting on student loans, etc. [1]

Exclusions can be temporary or permanent. Length depends on the severity of violations. For example, mandatory exclusions for felony convictions last a minimum of 5 years. [2]

Being on the exclusion list (LEIE) means Medicare, Medicaid and other federal programs will not pay for any items or services you provide. This includes both direct billing and services you order or prescribe. [3]

The effects extend to any business you own or control as well. So exclusions can essentially shut down your livelihood absent major changes.

The Exclusion Process and Timeline

If the OIG intends to exclude you, they must provide written notice explaining the reasons and your appeal rights. Here are the general steps in the exclusion process: [4]

1. Notice of Intent to Exclude – Provides rationale for exclusion and states you have 30 days to request a hearing in writing.
2. Notice of Exclusion – Final notice that exclusion will take effect in 20 days if no hearing was requested.
3. Appeal to an Administrative Law Judge – Formal appeal/hearing process very similar to a court trial.
4. Appeal to the Departmental Appeals Board – Next level of appeal based on errors in the ALJ decision.
5. Federal Court Review – Final longshot appeal option for errors in the DAB decision.

This appeals process can take many months or even years to conclude. So exclusions are not imposed lightly. You have opportunities to challenge the allegations.

Grounds for Challenging an Exclusion

What arguments can you make to fight an exclusion? There are two primary avenues:

1. Challenge the substantive basis – Argue that the facts do not justify exclusion, OIG lacks authority, or that your offenses don’t warrant being barred from federal programs.
2. Seek mitigation – Admit the allegations but request a reduced period of exclusion based on cooperation, new compliance measures, financial hardship on patients, etc.

To maximize chances of success, develop arguments under both strategies. The stronger your case, the better the likely outcome.

Strategies for an Effective Challenge

Facing exclusion can be intimidating. But taking prompt action improves the odds of avoiding or reducing the length of exclusion. Consider the following tips:

• Act quickly – You have limited time to request a hearing after receiving notice. Miss the deadline and your options dwindle.
• Get experienced counsel – Retain an attorney experienced with OIG exclusions. They know how to craft an effective appeal. [5]
• Negotiate where possible – See if the OIG will reduce the proposed exclusion period through informal negotiations before requesting a formal hearing.
• Develop key facts – Gather evidence related to your offenses, compliance program, reputation, patient impact, etc. to support your arguments.
• Demonstrate remorse – Accept responsibility for your actions. Emphasize this was an isolated incident and demonstrate how you are remediating issues.
• Highlight compliance efforts – Emphasize steps you take to promote compliance and prevent recurrence of problems. OIG wants to know you are committed to integrity.
• Obtain support letters – Ask colleagues, patients and community members to write letters attesting to your good character, reputation, importance to patients, etc.

Leveraging these strategies gives you the best chance to avoid or minimize the exclusion period. But there are no guarantees. Much depends on the nature and severity of the allegations.

What Happens if You Lose Your Challenge?

If efforts to fight the exclusion fail, all is not necessarily lost. You have options, including:

• Comply with the exclusion – As difficult as it may be, you must adhere to the exclusion terms or risk further penalties.
• Explore state program enrollment – Exclusion only applies to federal programs. You may still be able to participate in Medicaid plans run by your state.
• Pursue commercial payers – Build your practice around private insurance plans not affected by the federal exclusion.
• Seek employment – Excluded providers can often still work for hospitals, health systems or other practices as an employee or contractor.
• Serve self-pay patients – Consider transitioning to a concierge or cash-only practice model.
• Sell your practice – If running your practice becomes untenable, selling may help recoup some losses.
• Consider other fields – Look into teaching, consulting or administrative/management roles in healthcare organizations.
• Reapply after exclusion period – Once the exclusion term ends, you can apply for reinstatement if you meet rehabilitation requirements.

Conclusion

Being excluded from federal healthcare programs can significantly impact providers. But you have the right to challenge exclusions through various appeals. And even if those efforts fail, there are still options to continue practicing medicine. Retaining experienced legal counsel is key to navigating this complex process and achieving the best possible outcome. With persistence and creativity, it is possible to recover from exclusion and continue serving patients.