Think Three Times Before Signing an Exclusion Agreement with the OIG; the Consequences Are Career Killing

Friday, June 23, 2017
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We are often consulted by licensed health professionals, doctors, dentists, nurses, physical therapists, pharmacists, chiropractors and others, after they have signed an Exclusion Agreement with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS).  Such Exclusion Agreements are in the nature of a settlement agreement or plea bargain agreement, both forms of contracts.  In such an agreement, the health professional agrees to be excluded from the Medicare Program for a certain number of years in exchange for the government's agreement to not proceed with criminal charges, not proceeded with a civil or administrative action to recover civil monetary penalties, or to close an ongoing investigation.  We have seen Exclusion Agreements in which the provider agrees to be excluded from the Medicare Program for anywhere from two (2) years to twenty-one (21) years.

However, there are extremely serious long-term consequences to entering into an Exclusion Agreement, that the provider signing one may overlook or foolishly disregard.  Additionally, many attorneys who do not practice in the area of health law or Medicare and Medicaid law may not even be aware of the consequences that follow from a Medicare exclusion.  Criminal defense attorneys often believe that if they keep you from going to prison they have won your case for you, regardless of the other consequences.  You should always consult with an attorney who is experienced in health law, licensing matters, credentials and clinical privileges matters, and Medicare and Medicaid Program requirements before making any such decision.  Once you have signed it, it is usually too late.


What Your Attorney May not Know about Medicare Exclusion.

What your attorney may not know about exclusion form the Medicare Program and may not have informed you about can haunt you for the rest of your life.

First, exclusion does not just apply to the Medicare Program.  It applies to all federally funded health programs.  These include, Medicare, Medicaid, the Veterans Administration (VA), the Indian Health Service (IHS), the Public Health Service (PHS) and others.  You may not work for them in any capacity.  You may not work for anyone that takes any money from them in any capacity.  Therefore, if you are excluded, you may not even work as a desk clerk or a records custodian at a nursing home (almost all nursing homes receive Medicare, Medicaid, VA or other federal funds), a hospital (the same applies), a physician's office or other health facility or provider that is a Medicare contractor or takes any federal health funds.

To check for individuals and organizations on the OIG's List of Excluded Individuals and Entities (LEIE), click here.


Other Little Known But Very Serious Consequences.

Also, the following are little known but very serious consequences of an exclusion:

1.    You will automatically be placed on the General Services Administration (GSA) exclusion list and excluded from all government contracting work including working in any capacity for any government contractor.  This was formerly called "debarment."  This does not just apply to work as a general contractor or subcontractor.  This includes, for example, being a teacher in a public school or being a real estate agent participating in real estate sales involving VA or FHA loans.  This list of parties excluded from government contracting has gone under several different names in the past.  In the past it has been called the "debarment list" and the Excluded Parties List System (or "EPLS" list).  The EPLS List was recently moved to a new data base service called the System for Award Maintenance (SAM).  To access this list, click here.
2.    If you have clinical privileges or a medical staff appointment at any hospital, nursing home or other licensed health facility, you will be dropped from the staff and lose your clinical privileges.

3.    You will be dropped from the panels of virtually all health insurance companies and HMOs.  Why?  Because almost all of them have government contracts to provide various Medicare and Medicaid HMO and managed care services, Third Party Administrator (TPA) Services, and other contractor services.

4.    You will be automatically prohibited from being a state Medicaid Provider.  If and when your state Medicaid Program finds out about your exclusion, your state Medicaid Provider Agreement will be terminated for cause. Remember, Medicaid is funded to a large extent by federal funds.

5.    The action excluding you will be reported to the National Practitioner Data Bank (NPDB) and will be on this record for life.  It will be available to state licensure boards and many potential employers

6.    Termination from a state Medicaid Program is grounds for revocation of your professional license in many states.  So you may find yourself without a professional license or career.
7.    If you work anywhere in violation of the exclusion requirements, you and your employer both may be susceptible to additional penalties, fines and prosecution.

8.    Reinstatement at the end of the exclusion term is not automatic.  You have to apply for reinstatement, showing that you have been rehabilitated and are worthy of having the exclusion lifted.  This is feasible and we often file such applications for providers.


Seek Competent Legal Advice and Assistance and Seek it Early.

The main point for you to take away from reading this blog is that you should seek legal advice form competent, experienced legal counsel and seek it early in the process.  Don't wait until after you sign the Exclusion Agreement.  Don't wait until you are backed into a corner.  Don't wait until several years later when you have finally experienced the career killing consequences of a Medicare exclusion.


Contact Attorney Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program and Assisting in Reinstatement Applications.


The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).

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


About the Author: 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 Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.


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6/23/2017

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