By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com
“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.
“In a one-lawyer town, the lawyer starves to death, until a second moves in. Then they both get rich.”—old lawyer joke.
No one despises the policies of the federal government more than a tin-foil hatted conspiracy theorist. (But standing right next to them— is me.) That doesn’t mean I don’t like fighting with the lawyers that work for the government. The ones in Dallas are very easy to get along with, or at least used to be.
But without a lawyer on the other side to fight with, I am basically just “screaming at clouds.” (Me and the guy in the tin-foil hat.)
In March the US Department of Health and Human Services announced the closure of six of 10 regional offices of general counsel, in Boston, New York, Chicago, Dallas, San Francisco and Seattle. The remaining offices will be in Atlanta, Denver, Philadelphia, and Kansas City.
According to the HHS website, “the Office of the General Counsel (OGC) is the legal team for the Department of Health and Human Services (HHS), providing quality representation and legal advice on a wide range of highly visible national issues.”
One assistant general counsel I spoke with last week, who is losing his job in the Dallas office, said “they have no plans to replace us, or move us to the four remaining offices.”
Why does this matter to Healthcare clients?
Let’s take “revocations” of NPI numbers, where providers can lose the ability to bill insurance (Medicare and Private), simply because they CMS wrote them a letter. You have to appeal to get it back.
I tried an NPI Revocation case in 2021 with a fully staffed OGC. HHS administratively revoked my client’s NPI for 10 years.
While the first level (DAB) lowered the revocation to 3 years, when we appealed to the ALJ, we didn’t get an answer for two more years, during which time, the doctor was not allowed to submit any claims to CMS. And this was with a fully staffed OGC. Can you imagine what will happen with 6 of 10 offices closed?
Okay, So what’s an NPI number revocation? A national provider identifier number is a way for the HHS to control doctors and providers. HHS can terminate the doctor’s ability to earn a living by writing them a letter, if the government is displeased in any of a growing number of ways listed under 42 C.F.R. §424.535(a):
- Noncompliance
- Provider conduct
- Felonies
- False or misleading information
- Failing an onsite review
- Misuse of billing number
- Abuse of billing privileges
- Failure to report
- Failure to provide documentation
- Reserve funds requirements
- Termination from other programs, like Medicaid
- Loss of DEA Certificate
- Improper prescribing
- False Claims Act Judgment
- Debt referred to the US Treasury
- Patient harm
A physician could continue to see patients, during the appeal of a suspension or revocation, but ordinarily must hold the claims until his NPI number suspension is reversed. Which, as I noted, took me two years to push an appeal through, when the OGC was fully staffed.
I have no idea how anyone is going to get any relief, if no one can have a hearing. I can “scream at clouds” all I like, but they generally don’t answer me back.