AG's Medicaid Control Unit Steps Up Enforcement Efforts
Over the summer the Attorney General Office hired 40 new lawyers as part of its ongoing initiative to redouble its efforts against Medicaid fraud. Besides investigating and prosecuting Medicaid fraud, the AG’s Medicaid Fraud Control Unit (MFCU) also zealously roots out cases of patient neglect, drug diversion, and ordinary fraud and theft connected with the institutions and seniors who benefit from the program.
In regards to Medicaid fraud, the AG has recently indicted the office manager of a Waxahachie nursing home for theft. The MCFU claims that in addition to writing out checks to herself from a resident’s personal checkbook, the defendant also diverted more than $350,000 into a trust fund account which she then withdrew for her own purposes.
The primary hunting ground for the MFCU has always been nursing homes and the medical personnel who serve their elderly patients. For example, in a 2006 press release the Attorney General lauded the recent uncovering by the Unit and local law enforcement of drug diversion in a nursing home. In response to a nurse’s complaint that another LVN was arriving to work while apparently under the influence, the AG determined that the suspect nurse was fraudulently diverting Oxycodone for her own use. Another case from last year involved an LVN’s guilty plea to charges of injury to an elderly person by reckless omission. The Unit’s prosecutor claimed that the nurse disregarded multiple reports of an elderly patient’s failing condition while she engaged in personal conversations on her cell-phone.
The AG’s hiring binge represents the culmination of several years of increased appropriations by the State Legislature and mirrors the increased pressure placed on the Texas Nursing and Medical Boards to weed out offenders. The addition of 40 new attorneys can only augur additional prosecutions of medical personnel and an increase in the licensing actions that inevitably follow such criminal proceedings.
Surrendered Licenses & OIG Medicare Exclusions
Consider this scenario: You lose your medical (nursing, pharmacist, etc.) license to practice, so you move states in order to escape the ramifications of a surrendered or revoked license.
Unfortunately, the ramifications of your lost professional registration may follow you in the form of an exclusion. An individual subject to an exclusion is significantly limited in her ability to work in the health care profession nationwide. The purpose of the exclusion remedy is to protect beneficiaries of Federal health care programs from incompetent practitioners and from inappropriate or inadequate care. In the broadest sense, a section 1128 exclusion prevents individuals and entities from participation in Medicare, Medicaid and State health care programs. However, this does not affect your rights to participate as a beneficiary (i.e., if you break your arm and Medicaid normally pays, then you can still collect these benefits).
According to 1128(b)(4) of the Social Security Act, an individual may be excluded from participation in any Federal health care program if that person’s license was revoked, suspended, or otherwise lost, or because it was surrendered while a formal disciplinary proceeding was pending before an authority and the proceeding concerned the individual's professional competence, professional performance, or financial integrity. The Office of Inspector General (“OIG”) will generally send you a letter informing you that you may be excluded from health care programs including:
- Medicare
- Medicaid
- Veterans Administration
- TRICARE, etc.
The Social Security Act allows the OIG to exercise discretion when deciding whether or not to exclude individuals from participating in Federal health care programs. Even if the OIG decides to exclude you, they also have discretion to determine the length of the exclusion. Of course there are guidelines and considerations, such as:
- the nature of the act that gave rise to the exclusion;
- length of license suspension;
- criminal history, and;
- the availability of other sources of the type of health care services furnished by the individual.
As to the last factor, the OIG will go so far as to consider whether you are the only provider who takes Medicare or Medicaid in a specific zip code. For example, if there are two therapists in a given zip code and only the excluded individual accepts Medicare, then the OIG will consider that factor as a mitigating factor when determining the length of the exclusion.
If the OIG still decides to exclude you, then you still have a shot at obtaining a waiver. In this case, the OIG must receive a written request for the individual directly responsible for administering the State health care program. The OIG will grant a waiver if it determines that the imposition of the exclusion would not be in the public interest. Furthermore, the waiver is only applicable to the program for which the waiver is requested.
If you have been sent a letter informing you that you may be excluded, contact us immediately, as you only have 30 days to respond to the OIG in order to submit information to them.
