OMIG Implements Financial Hardship Process for Providers Under Audit

By Seth A. Nadel, Esq.
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The Office of the Medicaid Inspector General (OMIG) is the state agency within the Department of Health which is charged with investigating compliance with the requirements of the New York Medicaid program. OMIG regularly works with other state and federal government agencies such as the federal Centers for Medicare and Medicaid Services, the New York Bureau of Narcotic Enforcement, and the Medicaid Fraud Control Unit to rout out fraud and abuse in the program. OMIG also retains the power to exclude individuals from participation in the Medicaid program, a penalty which can have disastrous consequences for providers.

As part of its duties – and in a similar fashion to Medicare and third-party insurers – OMIG routinely audits the activities of healthcare providers, pharmacies, medical-equipment companies, nursing homes and other health-related businesses in its search for fraudulent or otherwise impermissible billing practices. As a result, providers which bill and collect for patient services rendered under the Medicaid program often find themselves on the receiving end of an OMIG repayment demand. Essentially, if OMIG has determined that services previously billed and collected for by a provider were not medically necessary, unsupported by medical records, or otherwise should not have been reimbursed, OMIG is entitled to recoup those funds from the provider.

Although providers are entitled to appeal rights, there remains the possibility that a provider will be left with a final determination by OMIG that it owes tens or even hundreds of thousands of dollars back to the Medicaid program after its appeal rights are exhausted, which the provider may not be in a financial position to immediately repay.

As of July 2021, however, OMIG has developed and implemented a process which allows providers to apply for relief in the event that the results of an OMIG audit pose a financial hardship to the provider. Specifically, providers who are in receipt of a final audit report may contact OMIG and request a Financial Hardship Application. Following completion of the application, OMIG will contact the provider and work with them to determine an appropriate repayment plan and hardship accommodations.

For reference a copy of a sample Financial Hardship Application may be found here. Based on the sample application, the amount of documentation providers will need to produce before OMIG will consider their request for any type of relief is extensive. Providers will not only need to produce their current financial information such as the amount of cash on hand, outstanding loans and business liquidity, but also information about whether the provider has received COVID-19 financial relief, income from bequests or legacies, and all of the provider’s business interests in other entities. Providers must also account for all assets transferred by the provider to other business interests or entities. Accordingly, providers should seriously consider whether they are willing to make these disclosures before deciding to seek hardship relief, and work with their accountants and legal counsel to ensure all disclosures are accurate and complete.

Note that OMIG has previously been amenable to allowing extended repayment of liabilities in the specific context of voluntary self-disclosures of overpayments by providers as an inducement for providers to make such disclosures. Extended repayment options are also offered by CMS in some instances with respect to recoupment of funds paid under the federal Medicare Program. 

Overall, the creation of the financial hardship process now allows for some much-needed flexibility where a provider is faced with a final audit report and accompanying repayment demand which they are either unable to fully satisfy, or where doing so would present a legitimate financial burden.

The firm has assisted numerous physicians and health-related businesses in connection with payor audits, investigations and repayment demands by government and third-party insurance payors. If you have questions about any these issues, or other legal matters uniquely affecting healthcare providers, please reach out to Seth A. Nadel, Esq. at snadel@weisszarett.com or 516-926-3308.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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New York State’s Newly-Announced Vaccine Mandate Policy for Healthcare Entities

By Joshua D. Sussman, Esq., Beth E. Roxland, Esq., Jessica Woodrow, Esq. & Carla Hogan, Esq.
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On August 16, Governor Cuomo announced a new vaccine mandate for New York State healthcare workers. This announcement aligns with the Department of Labor’s OSHA June emergency temporary standard, the Center for Disease Control’s July guidelines urging employers to encourage its workers to get vaccinated, and the requirements of several other U.S. states, including California and Maine, that have introduced similar vaccine mandates. 

I. Scope of Newly-Announced NYS Vaccine Mandate Policy

Not surprisingly, the announcement’s fine-print is narrower and more nuanced than the attention-grabbing headline. The announcement states that the New York State Department of Health will implement this new mandate by issuing regulations and guidance pursuant to New York State Public Health Law (PHL) Section 16, specifically requiring hospitals, long-term care facilities (LTCF), and nursing homes to develop policies requiring their employees be vaccinated by September 27, 2021. 

Despite the breadth of the Governor’s pronouncement, the new policy appears to exclude private practices, health care groups, and in-home health care workers. However, the Governor alluded to – but did not define – “other congregate care settings,” which could open the door to a broad reading of the Executive Branch’s intent.  In addition, it is important to note that the Commissioner of Health is separately imbued with the authority to issue orders, regulations, or guidance that exceeds the scope of the Governor’s announcement, as PHL Section 16 empowers the Commissioner to order a person to act or discontinue activities that are a danger to public health, so long as the Commissioner provides that person with an opportunity to be heard at a hearing and to present proof that such condition or activity does not constitute a danger to public health. In short, although the stated focus of the new vaccine mandate is on hospitals, LTCFs, and nursing homes, it is foreseeable and within the powers provided to the Commissioner of Health that the vaccine mandate could extend to private practices, health care groups, in-home health care workers, private facilities or any type of employer entity that provides care to patients.

Per the announcement and consistent with the legal requirements of Equal Employment Opportunity Commission guidelines, all healthcare institutional policies must contain limited exemptions to a vaccine mandate for employees with religious objections or medical reasons.   

II. Mandates Aimed at Employers and Entities Rather than Healthcare Workers and Other Individuals

Importantly, and similar to other recently-enunciated policies by the State, this new pronouncement mandates that healthcare employer institutions require their employees to be vaccinated, rather than directly requiring healthcare workers themselves be vaccinated. There are several potential reasons why the State’s new vaccine policy is aimed at employers rather than health care workers. 

One possible reason New York State is putting the onus on employers rather than instituting a government-level mandate directed at healthcare workers is because the currently available vaccines have not been fully approved by the federal Food & Drug Administration (“FDA”), but instead are being made available under a mechanism known as an “Emergency Use Authorization,” which is a type of conditional approval rarely relied upon except in special circumstances, such as a public health emergency. See 21 U.S.C. 360bbb-3, 360bbb-3a, and 360bbb-3b, as amended by Pub. L. 113-5. There is much debate about whether the government or other entities can or should mandate an intervention that has not yet been fully approved by the FDA, and many individuals have expressed hesitation in taking an intervention for that reason. This objection has been the basis of several of the lawsuits challenging healthcare and academic institutions’ vaccine mandates for their workers and students. To date, however, courts have found this claim without merit and insufficient to invalidate any such vaccine mandates. Moreover, the FDA has recently posited that it may grant full approval to at least one of the mRNA vaccines for adult populations in the near future, which may moot this line of reasoning.

Another potential reason why the State’s new policy may be aimed at entities rather than individuals may rest with the limitations of PHL Section 16, which requires orders to be served and opportunities to be heard for each individual personally affected by decisions made by DOH under this Section. As such, the State may need to personally serve each affected healthcare entity if the State enforces compliance with any vaccine mandates issued pursuant to PHL Section 16. While that will be a difficult task, it is far easier than serving the approximately 450,000 hospital workers, 30,000 adult care facility workers, and 145,500 nursing home workers cited in the Governor’s announcement. Additionally, as proposed, only employer health care institutions would be entitled the opportunity to be heard to contest the validity of the Orders—not their employees.

III. Legality of Vaccine Mandate Policies

In addition to the long-standing Supreme Court precedent Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), which upheld the legality of vaccine mandates, the legality of vaccine mandates set by private institutions for healthcare workers, university students, and others, has been the subject of several recent litigations – all of which have upheld such mandates. Notably, on June 16, 2021, a federal district court dismissed a challenge by 117 workers at Houston Methodist Hospital who refused to abide by the institution’s vaccine mandate. See Bridges, et al. v. Houston Methodist Hospital, et al., 21 CV 1774 (S.D. Tex. June 12, 2021). 

More recently, on August 12, 2021, the United States Supreme Court denied students’ challenge of the University of Indiana’s vaccine mandate, following the 7th Circuit’s refusal to issue an injunction pending appeal of the University’s vaccine mandate to students returning to campus. See Klaassen v. Trustees of Indiana University, No. 21-cv-2326 (7th Cir. Aug. 2, 2021). These decisions may be persuasive authority in denying other challenges to similar vaccine mandates. 

IV. Application of Government Mandates to Unionized Workers

Although courts have upheld vaccination mandates, it is unclear whether management in collectively bargained environments can unilaterally force union members to be vaccinated. That issue is currently being litigated in Illinois. Each collective bargaining agreement challenge is different, but employers should not unilaterally implement policies without first bargaining in good faith on certain issues related to such policies, such as: (i) implementation, including who is subject to vaccination unless specified, (ii) pay for time spent being vaccinated, (iii) timing of the vaccination, and (iv) consequences for an employee’s refusal to submit to vaccination.  

V. Penalties for Non-Compliance 

Thus far is it unclear how the State intends to enforce any Section 16 orders that issue, but the Department of Health already reviews vaccine policies related to grade schools and universities and delegates enforcement of those vaccine policies to local health departments. A transition to reviewing and enforcing these new policies may be seamless. Additionally, the Public Health Law contains powerful statutory enforcement tools, including imposition of a $2,000 penalty for each violation pursuant to PHL Section 12, and also authorizes the Attorney General to seek an injunction against any person who violates, disobeys or disregards such orders. 

As neither the Commissioner nor the Department of Health has issued regulations or guidance on the new vaccine mandate, however, it is unclear how or to what extent any noncompliance will be penalized. 

The healthcare and regulatory attorneys at Weiss Zarett will continue to provide updates about the issues presented by this new State vaccine mandate affecting healthcare workers, as well as by other Federal and State rules, regulations and policies developing in response to the quickly-evolving landscape of the Covid pandemic.

If you need guidance on compliance with the new vaccine policy, on other issues surrounding re-opening or operating your business, or on developing strategies in response to the Covid pandemic, please contact Joshua D. SussmanBeth E. Roxland, Carla Hogan or Jessica Woodrow at (516) 627-7000.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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How to Prepare for OPMC Investigations: A Legal Perspective

In the state of New York, there is an office within the Department of Health that serves to investigate claims of medical misconduct, known as the Office of Professional Medical Conduct or “OPMC.”

While the scope of OPMC’s jurisdiction is not unlimited, they play a heavy hand and are the primary governmental enforcement agency responsible for monitoring physician conduct, addressing complaints against doctors and adjudicating remedial and disciplinary actions that can leave a lasting stain on a physician’s career.

Luckily, there are key steps you can take to ensure legal protection, should you find yourself in the midst of an OPMC investigation. With the help of the right team of healthcare attorneys, you can protect yourself, your practice and your professional reputation.

For this reason, it is imperative that you know how to properly respond in the event an OPMC investigation does occur. For more information on the legal perspective of these events, keep reading below.

What Is an OPMC Investigation?

“OPMC” is the Office of Professional Medical Conduct. This office sits within the New York State Department of Health.

The main purpose of this office is to investigate complaints lodged against medical practitioners who are governed by the Orders of the State Board for Professional Medical Conduct. This includes:

  • Physicians
  • Physician assistants

The board itself is mostly comprised of physicians, with the remaining one-third of personnel made up of physician assistants and laypersons.

What Happens When an OPMC Complaint Is Filed?

An OPMC complaint may be filed by a patient, or from a patient’s family or friends. These issues can also be lodged by hospitals and government sources. Additionally, healthcare facilities must also report internal disciplinary action for misconduct matters.

Examples of qualifying misconduct include:

  • Negligence
  • Incompetence
  • Impairment from alcohol or drugs
  • Refusing to provide care based on race, color, national origin, etc.
  • Ordering excessive tests or treatments
  • Billing fraud
  • Moral Unfitness

These are just a handful of the potential violations that OPMC would investigate. Others might include: failing to maintain or transfer medical records, privacy violations, or sexual harassment or abusive conduct towards a patient. 

Once an investigation is launched, physicians are expected to fully cooperate. This includes providing any requested documentation, such as medical records and billing materials. Physicians are also given the right to participate in an informal interview with OPMC representatives, but are not obligated to do so. 

From there, the board will make a determination to either dismiss the investigation, or proceed to phase 2 of the process that involves formal charges of misconduct and a multi-step administrative hearing and appeal process. If found guilty, OPMC can impose a variety of disciplinary or remedial actions including: 

  • Revocation of medical license
  • Suspension or limitation of medical license
  • Probation
  • Monitoring
  • Censure
  • Reprimand
  • Fines
  • Community service

With such potentially serious consequences on the line, it is imperative every medical professional who may be subject to these rules take these matters seriously, and do what s/he can to minimize risk and outcome. Since the vast bulk of investigations are closed before proceeding to the phase 2 charges, it is strongly recommended that all efforts be taken to “nip the matter in the bud” and try to get the complaint dismissed as soon as possible. 

It is extremely important to reiterate that during these interviews—and any other stage of the investigation—physicians are authorized to bring in legal counsel.

What Are OPD Investigations?

Similar to OPMC, OPD is another New York State office that handles these types of investigations. OPD stands for the Office of Professional Discipline and sits within the New York State Department of Education

The Department of Education oversees the licensing process for other (non-medical) professionals practicing in New York. This covers a wide span of professionals, including:

  • Dentists
  • Mental health professionals besides psychiatrists
  • Nurses
  • Pharmacists
  • Veterinarians
  • Athletic trainers
  • Chiropractors

These are just a handful of categories that the New York OPD oversees. As with OPMC cases, OPD inquiries typically begin with a claim that is then investigated.

Like OPMC, an OPD investigation can result in drastic remedial or disciplinary action. 

How Can I Prepare for an OPMC or OPD Investigation?

In the event you do find yourself under an OPMC or OPD investigation, one of the most important steps you can take is to secure legal representation. With the help of a trusted team of healthcare lawyers, you can ensure you properly understand all rules and regulations and how they apply to you. Experienced counsel have been down the OPMC/OPD road many times before, and have acquired practical experience in dealing with this very important matter in a professional’s career.

More often than not, physicians fare better during OPMC investigations when they are honest and forthcoming with information. But with that said, it is important to understand your rights under the law throughout the process.

This is where trusted attorneys  in this area of law can help keep compliant with these procedures while avoiding unnecessary instances of self-incrimination.

Turn to the Lawyers at Weiss Zarett Brofman Sonnenklar & Levy, P.C.

With this information, you can gain a greater understanding of OPMC and its investigations. It is imperative that all medical professionals understand this information and the potentially serious consequences on the line.

Should you find yourself on the wrong side of an OPMC investigation, the best thing you can do for yourself and your professional reputation is to immediately seek proper counsel.

With the help of a qualified team of healthcare attorneys that are well-versed in this area of law, you can rest assured that your rights remain protected throughout.

In New York, there is a qualified team of dedicated lawyers standing by to help. Contact an attorney today to learn more, and to ensure you are putting your best foot forward heading into an OPMC investigation.

HOW NEIGHBORLY DO YOU HAVE TO BE?

By Michael J. Spithogiannis, Esq. & Floyd G. Gossman, Esq.
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You hear a knock on the door. . . .  It’s your next-door neighbor, who tells you about plans to make improvements to his property.  You are assured by your neighbor that all improvements will be made according to applicable building codes, and that all contractors will be licensed and insured.  The work may take several weeks, or longer, to complete.  Oh, and by the way, to perform the work, your neighbor’s contractors need access to your property for much of the duration of the project, as there is no other practical way of completing the job.  Are you okay with that?

Before you grant access to your land, you need to understand your rights.  By law, entering upon another’s property without permission is not allowed.  An owner of property is entitled to its exclusive possession.  Going on someone else’s land without permission, even if done innocently or by mistake, is a trespass.  The trespass can be enjoined and the trespasser held liable for damages.  It would seem, therefore, that you have every right to refuse access to your adjoining neighbor, who is set on improving his or her property, or making necessary repairs.  On the other hand, it seems unfair, provided the proper safeguards are implemented, to deny an adjoining landowner needed access to make lawful repairs or improvements simply because the only way to do so requires access to your land.

This scenario arises often.  Indeed, in more densely populated areas – especially those in the City of New York – this situation is regularly encountered among owners of single-family homes and those with multi-story buildings.  Many properties share driveways and party walls, and buildings are built lot-line-to-lot-line, making it virtually impossible to avoid entry upon neighboring property to perform work.

The law in New York tries to strike a balance between these real concerns and interests, so as to afford property owners access to neighboring property for the sole, temporary and limited purpose of making repairs or improvements, provided proper safeguards are put in place to avoid any cost or injury to neighboring property.

In 1968, the New York Legislature enacted §881 of the Real Property Actions and Proceedings Law (“RPAPL”) to strike a balance between conflicting interests of adjoining landowners.[1]  Section 881 provides that an owner who wants to make improvements or repairs to land so situated that they cannot be made without access to adjoining property, and who has been denied permission by the neighboring property owner, may bring a court proceeding to obtain a temporary license for the limited purpose of entering upon the neighboring property to make those improvements or repairs.  This special proceeding, as it is called, is designed to be adjudicated on an expedited basis, as the situation often demands prompt action.[2]

Early on, the constitutionality of RPAPL §881 was challenged as, among other things, authorizing a taking of private property for a private use; being unrelated to public safety, health, welfare and morals; and interfering with private property and private contractual rights.  Its constitutionality was upheld as a valid exercise of a state’s police power.[3]  Indeed, the statute affords equal opportunity for all landowners to enter upon neighboring property when necessary and under reasonable circumstances to preserve their own property interests, and provides for full compensation if the neighboring property is damaged.[4]

Section 881 states that “[t]he license shall be granted by the court in an appropriate case upon such terms as justice requires.”[5]  As the statute is written, once the adjoining owner proves necessity, the court shall grant the license.  Although it seems that the courts are constrained to grant licenses once the requisite necessity is shown, they have discretion in determining whether relief is necessary in the first place, and to impose such terms as justice requires.

The statute requires the petitioning landowner to provide proof of the extent and duration of the work, demonstrate that entry upon the neighboring property is necessary, and confirm the dates on which entry is sought.  Courts will consider a number of factors in deciding a petition under §881, including the nature and extent of the requested access and its duration; the protections needed by the adjoining property so that no physical or financial loss is suffered; whether less invasive means exist for performing the work; the public’s interest in completion of the project; and the measures put in place by the petitioner to ensure financial compensation for any damage or inconvenience to the adjoining owner.[6]  

Before granting a license courts invariably balance the inconvenience to the adjacent property owner whose property will be burdened, with the hardship to the adjoining owner left incapable of making repairs or improvements if a license is refused.[7]  Courts have held that a license should be granted when necessary, under reasonable conditions, exists and the inconvenience to the adjacent owner is relatively slight compared to the hardship of the neighbor if a license is refused.[8]

The statute also empowers courts to impose conditions for the license, such as requiring the posting of a bond, obtaining insurance coverage, construction of safety precautions, and indemnification against violations and mechanic’s liens.[9]  Courts are mindful that the owner whose property is being accessed should not have to bear any cost, and often grant a license fee as compensation for the temporary loss of the use and enjoyment of the property burdened.[10]  The statute itself states that “[t]he licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.”[11]  

While RPAPL §881 provides for a litigated solution if permission is requested and denied, litigation can be costly, the results uncertain, and the time it takes to obtain relief unpredictable.  There is, therefore, no practical reason adjoining landowners cannot avoid litigation and come to terms on their own detailed license agreement, negotiated by experienced counsel, that takes into account their specific concerns, and the details of the proposed work, and provides a workable methodology to protect their respective interests.

Michael J. Spithogiannis, Esq. and Floyd G. Grossman, Esq. each have over 35 years’ experience litigating commercial and real-property disputes in state and federal courts throughout New York.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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[1] Real Property Actions and Proceedings Law §881 (McKinney 2021).

[2] Prompt action is indispensable as building permits usually have a limited lifespan, lenders who finance improvements usually insist on hard deadlines for completion of work, and prompt repairs are necessary to prevent further damage or decay to the property.

[3] Chase Manhattan Bank v. Broadway, Whitney Co., 57 Misc.2d 1091 (Sup.Ct. Queens Co. 1968).

[4] Id. at 1094-95.

[5] Id. (emphasis added).

[6] Voron v. Bd. of Managers of Newswalk Condominium, 186 A.D.3d 833 (2d Dep’t 2020); Quinn v. 20 East Clinton, LLC, 193 A.D. 893 (2d Dep’t 2021).

[7] See Meopta Properties II, LLC v. Pacheco, 185 A.D.3d 511 (1st Dep’t 2020).

[8] Bd. of Managers of Artisan Lofts Condominium v. Moskowitz, 114 A.D.3d 491 (1st Dep’t 2014).

[9] North 7-8 Investors LLC v. Newgarden, 43 Misc.3d 623 (Sup.Ct. Kings Co. 2014).

[10] See House 93, LLC v. Lipton, 178 A.D.3d 545 (1st Dep’t 2019);  DDG Warren LLC v. Assouline Ritz 1, LLC, 138 A.D.3d 539 (1st Dep’t 2016).

[11] RPAPL §881.

MATHEW J. LEVY, ESQ. WILL BE PARTICIPATING IN A DC-NP INTEGRATION SEMINAR

On Thursday, November 4, 2021, Mathew J. Levy, Esq. will be participating in a DC-NP seminar located at the LaGuardia Airport Marriott. The presentation is about chiropractors and nurse practioner joint ventures.

The event will take place from 9 AM to 10:30 AM EST along with a question-and-answer period.

For more information and to register, click here.

Should you have any questions, please contact Mr. Levy at mlevy@weisszarett.com.