Tuesday, January 24, 2017

OIG Releases Final Rule Revising Exclusion Authorities

The US Department of Health and Human Services, Office of Inspector General (OIG) has released a final rule, Health Care Programs: Fraud and Abuse; Revisions to the Office of Inspector General’s Exclusion Authorities, which incorporates statutory changes enacted by both the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) and the Affordable Care Act (ACA), and revises the definitions applicable to exclusions, proposes early reinstatement procedures and offers a number of proposed policy changes as to when/how exclusions may occur.
The rule expands the exclusion regulations applicable to persons or entities that receive, directly or indirectly, funds from the federal health care programs. The rule is effective 2/13/17.

AHCA/NCAL was pleased to see that OIG incorporated many of the Association’s requests into the final rule from our formal comments to the proposed rule. Specifically, the final rule incorporates the following  recommendations from AHCA/NCAL:

1) refrain from subjecting individuals seeking employment in unlicensed positions to a 5-year presumption against reinstatement. OIG agreed, and the final rule changes the presumption against reinstatement to 3 years for these individuals (page 4104 in the final rule);
2) increase the financial loss aggravating factors used to determine the length of an inclusion to $15,000 does not sufficiently increase the loss amount. OIG partially agreed, and the final rule increases the amount of the financial loss aggravating factors to $50,000 for certain sections (page 4103 in the final rule);
3) define “audit,” to understand whether or not the survey and certification process is encompassed under this term. OIG makes clear that the annual survey process is included under the term “audit? (page 4101 in the final rule); and
4) refrain from identifying a statute of limitations for OIG to impose affirmative exclusions. In the final rule, OIG conceded that b/c of the comments, it would implement a 10-year statute of limitations period.

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