Wednesday, July 23, 2014

OIG Seeking Permissive Exclusion Criteria Comments

Dianne De La Mare

The US Department of Health and Human, Office of Inspector General (OIG), has released a notice soliciting comments on the non-binding criteria used by the agency in assessing whether to impose a permissive exclusion. By way of background, the OIG has the authority to exclude individuals and entities from Federally funded health care programs (e.g., Medicare and Medicaid), and also maintains a list of all currently excluded individuals and entities called the List of Excluded Individuals and Entities (LEIE).  Anyone who hires an individual or entity on the LEIE may be subject to civil monetary penalties (CMP).

OIG has both mandatory exclusion authority and permissive exclusion authority. Under its mandatory exclusion authority, OIG is required to exclude all individuals and entities convicted of Medicare or Medicaid fraud. Under its permissive exclusion authority, OIG has discretion to exclude individuals and entities on a number of grounds, including misdemeanor convictions related to health care fraud other than Medicare or a State health program, fraud in a program (other than a health care program) funded by any Federal, State or local government agency; misdemeanor convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances; suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity; provision of unnecessary or substandard services; submission of false or fraudulent claims to a Federal health care program; engaging in unlawful kickback arrangements; and defaulting on health education loan or scholarship obligations; and controlling a sanctioned entity as an owner, officer, or managing employee.

OIG’s current permissive exclusion criteria can be categorized into four categories: 1) the circumstances and seriousness of the underlying misconduct; 2) the defendant’s response to the allegations or determination of wrongdoing; 3) the likelihood of a future violation; and 4) the defendant’s financial ability to provide quality health care services. Over the last two decades, OIG has used these criteria to evaluate whether to impose a permissive exclusion or release this authority in exchange for the execution of an Corporate Integrity Agreement (CIA) with OIG. In support of its decision to consider revising the criteria, OIG indicates that “updated guidance could better reflect the state of the health care industry today.”

Comments are due September 9, 2014.   To obtain a copy of the OIG notice go to To submit comments or feedback to this notice, for inclusion in more formal comments, please contact Dianne De La Mare at

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