The Effect of OIG Exclusion On Health Care Professionals: Part 1 of 2

Wednesday, June 29, 2016
By Michelle Bedoya, J.D., and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

This is part one of two in a blog series in which the effects and scope of OIG exclusion on health care professionals will be discussed.

 Pursuant to Sections 1128 and 1156 of the Social Security Act, the U.S. Department of Health and Human Services Office of Inspector General ("OIG") has the authority to exclude individuals and entities from federally funded health care programs, such as Medicare and Medicaid.  The paramount effect of exclusion is that payment is prohibited for items or services that an excluded individual or entity provides.  This prohibition extends to anyone who chooses to employ or contract with an excluded individual or entity. Providers who violate this prohibition are required to pay back all federal health care program funds inappropriately received and may also be subject to civil monetary penalties (“CMPs”).


The Two Types of Exclusions: Mandatory and Permissive.

1.    Mandatory exclusions.
The OIG is required to exclude individuals and entities who are convicted of the following types of criminal offenses from participation in federal health care programs:

a.    Medicare or Medicaid fraud;
b.    offenses related to the delivery of items or services under Medicare, Medicaid, State Children's Health Insurance Program ("SCHIP") or other state health care programs;
c.    patient neglect or abuse;
d.    felony convictions for other health care-related fraud, theft or other financial misconduct; and
e.    felony convictions relating to unlawful manufacture, distribution, prescription or dispensing of controlled substances.

2.    Permissive exclusions.
The OIG has the discretion to exclude individuals and entities on a number of grounds, including:
a.   misdemeanor convictions related to health care fraud other than Medicare or a state health program;
b.   fraud in a program funded by any federal, state or local government agency;
c.   misdemeanor convictions relating to the illegal manufacture, distribution, prescription or dispensing of controlled substances;
d.   suspension, revocation or surrender of a health care license for reasons bearing on professional competence, professional performance or financial integrity;
e.   provision of unnecessary or substandard services;
f.    submission of false or fraudulent claims to a federal health care program;
g.   engaging in illegal kickback arrangements;
h.   defaulting on health education loan or scholarship obligations; and
i.    controlling a sanctioned entity as an owner, officer, or managing employee.


The Scope of Exclusion.


1.    Prohibition On All Methods of Federal Health Care Program Payment.
The prohibition on payment of federal health care program funds for items or services provided by an excluded individual or entity applies to all methods of payment, including:

a.   itemized claims;
b.   cost reports;
c.   fee schedules;
d.   capitated payments;
e.   a prospective payment system or other bundled payment; or
f.   any other payment system.

The prohibition applies even if the payment is made to an individual or entity that is not excluded.

2.    Prohibition For Services Beyond Direct Patient Care.
The prohibition on payment of federal health care program funds for items or services furnished by an excluded individual or entity, includes items or services that extend far beyond direct patient care.  The OIG has provided the following examples to help illustrate the scope of services that are deemed to go beyond direct patient care:

a.    services by excluded individuals in preparation of surgical trays or review of treatment plan;
b.    services by excluded pharmacists or other excluded individuals who input prescription information for pharmacy billing or who are involved in filling  prescriptions for drugs that are billed to a federal health care program; and
c.    transportation services that are paid for by a federal health care program, such as those provided by ambulance drivers or ambulance company dispatchers.

3.    Prohibition For Administrative and Management Services.
Payment of federal health care program funds for administrative or management services provided by an excluded individual or entity is prohibited.  For instance, an excluded individual may not:
a.    Serve in an executive or leadership role such as:
•    Chief Executive Officer;
•    Chief Financial Officer;
•    General Counsel;
•    Director of Health Information Management;
•    Director of Human Resources; or
•    Physician Practice Office manager at a provider that bills any federal health care program.
b.    Provide administrative and management services (unless wholly unrelated to federal health care programs) such as:
•    health information technology services and support;
•    strategic planning;
•    billing and accounting;
•    staff training; or
•    human resources.

To read the Special Advisory Bulletin from the Office of Inspector General, click here.


Contact Health Law Attorneys Experienced with OIG Exclusion Cases.

Attorneys with The Health Law Firm represent health care professionals and health facilities in OIG exclusion cases.  We have represented doctors, nurses and others who seek reinstatement for participation in federal health care programs.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

"Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs."  U.S. Department of Health and Human Services: Office of Inspector General, 2013.


About the Authors:  Michelle Bedoya, J.D., is an attorney with The Health Law Firm and a long-time consultant to home health agencies. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, FL 32714, Phone: (407) 331-6620.


Keywords:  OIG, Office of the Inspector General, Centers for Medicare and Medicaid Services, CMS, OIG exclusion, audit attorney, enforcement, Medicare fraud defense attorney, Medicaid fraud defense attorney, LEIE legal counsel, List of Excluded Individuals and Entities, Medicare Fraud Strike Force, home health attorney, Zone Program Integrity Contractor (ZPIC) audit lawyer, Recovery Audit Contractor (RAC) lawyer, defense attorney, defense lawyer, Florida health attorney, health law attorney, Florida health lawyer, The Health Law Firm, health law defense lawyer, health professional attorney, Medicare fraud defense lawyer, Medicaid fraud defense lawyer


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6/29/2016

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