OIG’s Strengthens its Exclusion Authorities

The Office of Inspector General (OIG) recently published a final rule that implements OIG’s expanded statutory exclusion authority. The final rule included a number of provisions that impact providers and suppliers.

The Affordable Care Act (ACA) significantly expanded OIG’s authority to exclude an individual or an entity and the OIG’s final rule updated its regulations to codify the changes made by ACA.

The OIG, for example, can now exclude individuals and entities convicted under Federal or State law in connection with an interference or an obstruction of any investigation or audit related to funds received from a Federal health care program. The OIG also codified the ACA’s expansion of the agency’s authority to exclude those who refer or certify the need for items or services they themselves did not provide where such individuals fail to provide certain payment information to the Secretary.

The final rule codifies the OIG’s permissive authority to exclude for knowingly making or causing to be made any false statement, omission or misrepresentation of material fact in any application, agreement, bid or contract to participate or enroll as a provider of services or supplier. This includes Medicare enrollment applications (855B, 855S, 855I or 855O).

While the OIG was previously authorized to exclude individuals for defaulting on health education loans or scholarship obligations the expanded authority now permits OIG to exclude those in default of loan repayment programs. The agency’s comments to the final rule further clarified that their exclusion authority would include defaults on the Indian Health Service scholarships.

The OIG additionally clarified that those individuals who has been excluded pursuant to the agency’s 1128(b)(15) authority (individuals controlling a sanctioned entity) will be excluded for the same period as the excluded entity.

Additionally, the OIG proposed to exclude those providers or suppliers who fail to grant immediate access for reviewing records, documents and other materials or data in any format (defining “immediate access” as making materials available for inspection upon reasonable request or providing a compelling reason why they cannot be produced within 24 hours of such a request).

On average, the OIG excludes 3,500 health care providers a year. With its expanded authority, the OIG has the potential to impact an even greater number of health care providers.

This final rule was intended to go into effect on February 13, 2017. Given the new administration’s recent regulatory freeze (82 FR 8346), all regulations that have already been published in the Federal Register but have a future effective date, such as this final rule, will be delayed for 60 days from January 24, 2017, for the purpose of reviewing questions of fact, law, and policy raised by such regulations.

If you have questions about the final rule, enrollment, exclusion, revocation, debarment, OIG, or have other health care or professional license related questions, please contact our office