Tuesday, May 3, 2016

OIG Issues New Exclusion Guidance

Dianne De La Mare

The OIG has released a revised policy statement concerning exclusions imposed under Section 1128(b)(7) of the Social Security Act, which OIG uses to exclude individuals or entities from participation in the federal health care programs. OIG typically invokes this section when initiating exclusion proceedings within the context of the False Claims Act (FCA). The revised document describes how the agency evaluates risk to the federal health care programs; and how it overhauls the non-binding factors that it uses in determining that some period of exclusion should be imposed against an individual or entity that has defrauded Medicare or any other health care program. The revised statement supersedes and replaces the 1997 policy statement published by the OIG.

The revised statement describes the process that OIG uses to evaluate risk to federal health care programs, and overhauls the factors used by OIG in determining whether and for how long to impose an exclusion under Section 1128(b)(7) including, but not limited to reviewing: a) the nature and circumstances of the conduct; b) the conduct during the government’s investigation; c) significant “ameliorative efforts” (e.g., internal disciplinary actions, new compliance initiatives, etc.); and d) the history of compliance.

The revised statement also creates a specialized litigation team that will concentrate solely on levying civil money penalties (CMPs) and excluding individuals and entities from Medicare and Medicaid as punishment for alleged fraud schemes.

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