The Department of Health Care Services (DHCS) has the authority under the Welfare and Institutions Code to impose administrative sanctions on Medi-Cal providers. Some of the most common sanctions are withhold and temporary suspension.
The primary basis for "Temporary Suspension" is Welfare and Institutions Code, Section 14043.36 which provides as follows:
“If it is discovered that a provider is under investigation by the Department or any state, local, or federal government law enforcement agency for fraud and abuse, that provider shall be subject to temporary suspension from the Medi-Cal program, which shall include temporary deactivation of all provider numbers used by the provider to obtain reimbursement from the Medi-Cal program.”
The Medi-Cal application has providers agree to temporary suspension if they are under investigation for fraud or abuse; fail to disclose all information in their application or provide false information; or fail to remediate discrepancies found after an unannounced visit; submit claims for payment for any provider who is excluded on on the Ineligible list; or “when necessary to protect the interests of the Medi-Cal program.”
How can I appeal from a Medi-Cal temporary suspension? You do not have the rights to a full appeal with a hearing and the right to bring witnesses. Instead, you only have the right to what is known as an “administrative” or paper appeal under Welfare and Institutions Code, Section 14043.65.
For this reason, the most important thing to do from the beginning is to begin the meet and confer process with DHCS to seek to resolve the issues. The appeal can be filed at the same time. We have had many cases where we were able to satisfy DHCS that there was no viable fraud or violation of program rules or where we reached agreements that allowed the provider to maintain their Medi-Cal provider number under certain written settlement agreements.
Before these meetings, it is critical to meet with an attorney and evaluate the evidence and to determine whether there is any exposure for fraud. If there are concerns, it may be important not to have meetings where the provider’s Fifth Amendment rights are waived since anything that is said at a meeting in Sacramento is evidence.
While the meet and confer process is ongoing, the appeal is filed and it must be supported by substantial evidence under oath in order to have any chance of winning this “paper” appeal. A judge does not rule on the appeal. It is a “hearing officer” from DHCS and there is no hearing or opportunity to cross-examine witnesses. Thus, any appeal submissions must be thorough.
Seeking input from DHCS in Sacramento is critical since “temporary” can last as long as 3 years while the Department claims that an investigation is ongoing. The meet and confer process with an in-person meeting in Sacramento is very helpful in helping prove to the Department the issues in the claimed “fraud” are non-existent (we have seen cases where the evidence was flawed and the statements were false) or that the errors were minimal and not grounds for a true temporary suspension.
One of the recurring issues is that often DCHS will refer the case to the State Attorney General’s Office – Bureau of Medi-Cal Fraud – and it is often required that the case be closed by their office in order to reinstate the provider number and lift the temporary suspension.
Every one of these cases is different and it is critical to evaluate them at the earliest time possible. Usually these cases commence when there are on-site inspections and it may be necessary to obtain an attorney’s input at that time to ensure that all is handled professionally and that a referral for fraud and abuse will not be made. Often, providers do not take the on-site inspections as seriously as they should and do not sufficiently address the auditor or investigator’s concerns at the earliest level. If you need assistance with your audit, on-site inspection or temporary suspension, feel free to contact our office for a complimenary 15 minute consultation.
Posted by Tracy Green, Esq.