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.
Phone: 213-233-2260
Email: tgreen@greenassoc.com
