Permissive exclusions [42 U.S.C. § 1320a-7(b)]
Permissive exclusions are not automatic and the provider who receives an exclusion notice can provide material to OIG in an effort foreclose imposition of the permissive exclusion, or minimize its length and effect. Permissive exclusions may either be
(1) “derivative” exclusions that are based on actions previously taken by a court or other law enforcement or regulatory agency, such as a misdemeanor conviction related to controlled substances or
(2) “affirmative” exclusions that are based on OIG-initiated determinations of misconduct, such as poor quality of care, kickbacks, or submission of false claims to a Federal health care program.
Some of the permissive exclusions have presumptive minimum exclusionary periods which can be lengthened or shortened depending upon the existence of aggravating or mitigating circumstances. 42 C.F.R. §§ 1001.201-1701.
Permissive exclusions and their presumptive exclusion periods include:
- certain misdemeanor convictions related to health care fraud or a criminal offense relating to a non-health care program financed by a governmental agency (minimum 3 year exclusion)
- a conviction related to obstruction of a health care investigation or audit (minimum 3 year exclusion)
- a misdemeanor conviction related to controlled substances (minimum 3 year exclusion)
- license revocation or suspension by a State licensing authority for reasons bearing on the individual’s professional competence, professional performance or financial integrity (exclusion period not less than the state-imposed period of revocation or suspension)
- exclusion under a Federal health care program (including Department of Defense and Department of Veteran Affairs) or State health care program (minimum exclusion equal to that imposed by the other Federal or State program)
- claims for excessive charges or unnecessary services and failure of certain organizations to furnish medically necessary services, or failure of an HMO to furnish medically necessary services (minimum 3 year exclusion absent mitigating circumstance but in no case less than one-year in case involving furnishing of items in excess of patient’s needs or of a quality that fails to meet recognized standard of care)
- fraud, kickbacks, false statements and other prohibited activities set forth in the Anti-Kickback Statute (no minimum exclusion period)
- an entity controlled by an excluded individual or controlled by a family member or household member of the excluded individual who has transferred control of the entity in anticipation of (or following) the conviction or other excluding event to the family or household member (entity’s exclusion same length as the excluded individual’s)
- an entity which fails to properly disclose required information regarding management and control of the entity (no minimum exclusion period)
- an entity which fails to supply requested information on subcontractors and suppliers (no minimum exclusion period)
- failure to supply payment information (no minimum exclusion period)
failure to grant immediate access to certain administrative agencies, including OIG, and State medicaid fraud control units charged with assuring compliance with conditions related to participation or payment entity (no minimum exclusion period)
- failure to take corrective action entity (no minimum exclusion period)
- default on a health education loan or scholarship obligations (exclusion until debt satisfied)
- an individual who has direct or indirect ownership or controlled interest in an excluded entity (exclusion period same as excluded entity)
- making false statements or misrepresentations of material facts in any application, agreement, bid or contract to participate or enroll as a provider or supplier of services under a Federal health plan program (no minimum exclusion period)
- failure of health care practitioner to provide medically necessary services meeting professionally recognized standard of health care (minimum 1-year exclusion, or, in lieu of exclusion, fine of up to $10,000 where service provided was improper or unnecessary)
Mark Greenberg can help the health care provider limit the imposition and effect of any permissive exclusion proposed by the OIG. Reinstatement of an excluded provider is not automatic once the specified period of exclusion ends. The provider must apply for reinstatement with OIG.
Mark Greenberg can help the provider obtain reinstatement after the period of exclusion has ended.