The Civil Monetary Penalty Law (CMPL), 42 U.S.C. § 1320a-7a [Social Security Act § 1128A]
OIG is authorized to seek civil monetary penalties (CMPs), assessments, and exclusion for many types of conduct. For example, OIG may seek CMPs against any person who:
- Presents or causes to be presented claims to a Federal health care program that the person knows or should know is for an item or service that was not provided as claimed or is false or fraudulent;
- Violates the anti-kickback statute by knowingly and willfully:
(1) Offering or paying remuneration to induce the referral of Federal health care program business; or
(2) Soliciting or receiving remuneration in return for the referral of Federal health care program business;
- Presents or causes to be presented a claim that the person knows or should know is for a service for which payment may not be made under the Stark law.
- Fails to grant OIG timely access to records, upon reasonable request.
- Orders or prescribes an item or service while excluded when the excluded person knows or should know that the item or service may be paid for by a Federal health care program.
- Makes false statements, omissions, or misrepresentations in an enrollment or similar bid or application to participate in a Federal health care program.
- Fails to report and return an overpayment that is known to the person and
- Makes or uses a false record or statement that is material to a false or fraudulent claim.
OIG is authorized to seek different amounts of CMPs and assessments based on the type of violation at issue.
For example, in a case of false or fraudulent claims, OIG may seek a penalty of up to $10,000 for each item or service improperly claimed, and an assessment of up to three times the amount improperly claimed. In a kickback case, the OIG may seek a penalty of up to $50,000 for each improper act and damages of up to three times the amount of remuneration at issue (regardless of whether some of the remuneration was for a lawful purpose). 42 U.S.C. § 1320a-7a(a).
The regulations describing the administrative appeals process for the OIG’s CMP cases are at 42 CFR part 1005.
The formal initiation of a CMP case occurs when the OIG issues a demand letter describing the sanction sought (CMP, assessment, and/or exclusion) and the factual basis for the sanction. The health care provider who is the subject of the action has the right to request a hearing before a Health and Human Services administrative law judge.
In such a hearing, the OIG and the provider, known as the respondent, have the right to present evidence and make arguments to the ALJ, who issues a written decision. OIG takes the provider’s self-disclosure and level of cooperation into account when determining the appropriate settlement terms.
The ALJ’s decision may be appealed administratively and to federal court. It is at these hearings where Mark Greenberg can minimize the effect of any penalties, assessments or exclusions the OIG is seeking to impose on the provider.