By James Swann
May 8 — A proposed rule (RIN 0936-AA05) released by the Department of Health and Human Services Office of Inspector General May 8 would broaden the agency's authority to exclude individuals and entities from participating in federal health-care programs, as well as grant it the authority to issue subpoenas when pursuing potential exclusions.
The enhanced exclusion authority comes courtesy of the Affordable Care Act and would allow the OIG to impose exclusions on individuals for:
The proposed rule will be published in the Federal Register May 9. Comments are due July 8.
Section 1128 of the Social Security Act provides the OIG with two categories of exclusion authority: mandatory and permissive.
Mandatory exclusions are required for “any individual or entity convicted of a ‘program-related' crime,” according to the proposed rule, such as patient abuse or the diversion of controlled substances. Mandatory exclusions last at least five years.
The OIG has more discretion when it comes to permissive exclusions, which have no five-year minimum. Permissive exclusions can be based on previous law enforcement convictions or actions taken by other regulatory agencies, or can be the result of OIG investigations.
The proposed rule would implement Section 6406(c) of the ACA, allowing the OIG to exclude “any individual or entity furnishing, ordering, referring for furnishing, or certifying the need for items or services” for which payment can be made by Medicare or Medicaid if they fail to provide payment information.
The OIG's permissive exclusion authority based on failing to supply payment information applies only to individuals or entities who just furnish the items or services.
The proposed rule also would implement Section 6402(d) of the ACA, which would expand the permissive exclusion authority to “any individual or entity that knowingly makes or causes to be made any false statement, omission, or misrepresentation of a material fact in any application, agreement, bid, or contract to participate or enroll as a provider of services or supplier under a Federal health care program.”
The OIG's decision on whether to impose an exclusion for a false statement would be based on information from a number of sources, including the Centers for Medicare & Medicaid Services, state Medicaid agencies and contractors, the proposed rule said.
The length of the exclusion would be based on “what the repercussions of the false statement are and whether the individual or entity has a documented history of criminal, civil, or administrative wrongdoing,” the proposed rule said.
Before passage of the ACA, the OIG was allowed to exclude individuals or entities who were convicted of obstructing investigations into criminal offenses within federal health-care programs, but not individuals or entities convicted of obstructing audits.
However, Section 6408(c) of the ACA broadened the OIG's exclusion authority, allowing for the exclusion of individuals or entities convicted of obstructing an audit into potential criminal offenses affecting federal health-care programs.
In addition to implementing Section 6408(c), the proposed rule would “allow OIG to increase the period of exclusion if the acts, or similar acts, that resulted in the obstruction conviction caused a financial loss of $15,000 or more.”
The proposed rule includes several provisions mitigating potential OIG exclusions.
For example, the proposed rule would limit the individuals eligible for exclusion to “current health care practitioners, providers, suppliers, those who furnish items or services, owners, managing employees, or those who are employed in any capacity in the health care industry,” or individuals who formerly held such positions at the time of action necessitating exclusion.
The proposed rule would revise how the OIG uses financial losses to determine the length of an exclusion.
Current regulations “list, as an aggravating factor, whether the acts resulting in the conviction, or similar acts, caused or were intended to cause, a financial loss of $5,000 or more,” according to the proposed rule.
Under the proposed rule, the aggravating factor threshold would be increased to $15,000, which the OIG said “is an appropriate threshold that is consistent with [the] rationale behind the original amount and provides a realistic marker for determining whether someone is untrustworthy.”
To contact the reporter on this story: James Swann in Washington at email@example.com
To contact the editor responsible for this story: Ward Pimley at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).