S U P R A S P I N A T U S

The New York State Office of Medicaid Inspector General (OMIG) released its fiscal year 2008-09 workplan back in April. Page 29 of the report contains a summary of OMIGs efforts to follow OPMC and OPD disicplinary actions with exclusion from the state Medicaid program.

To protect the program and beneficiaries from providers who pose a risk, the OMIG has authority to exclude individuals and entities from participation in Medicaid. Providers are excluded for reasons that may include program-related convictions, patient abuse or neglect convictions, and licensing board disciplinary actions.

The OMIG uses referrals received from various federal, state and local agencies to determine as factors in determining whether or not to exclude a provider. It will continue to work with these agencies to ensure the timely referral of convictions, licensing board and administrative actions. OMIG excluded 657 individuals and entities from Medicaid in SFY 2006 and has implemented the exclusion of 668 individuals and entities in SFY 2007 as of February 6, 2008.

As appropriate, OMIG BIE staff has initiated an affirmative program to impose exclusions against individuals and entities that submitted false or fraudulent claims, failed to provide services that met professionally recognized standards of care, committed crimes or otherwise engaged in conduct actionable under NYCRR Title 18 or other statutes authorizing exclusions by OMIG.

The emphasis is added. See OMIG's workplan here.

According to OMIG sources, OMIG has initiated a pilot program and has advised OPMC and OPD that it will speak with defense counsel prior to execution of a disciplinary Consent Decree to assist defense counsel in assessing exclusion risk. OMIG will advise counsel that:

• Exclusion is likely;


• Exclusion is not likely; or


• Cannot make a call on the exclusion question.

OMIG has said it hopes the cases of "not being able to make a call" are rare. Defense counsel probably have a greater hope that the cases of OMIG saying "not likely" and then reneging are rarer still. Given that the OMIG assessment is to be provided before the disciplinary matter is concluded, one assumes naturally that the subjects of the disciplinary hearing will rely on the assessment in weighing their decision to submit to the decree. To that end, OMIG owes it to the subject provider to make as sound and genuine assessment as possible.

Hat tip: Jim Horwitz