OIG and Medicare Exclusion List Appeals
The Office of Inspector General (OIG) has the authority to exclude individuals and entities from federally funded health care programs for a variety of reasons. OIG maintains a list of all currently excluded individuals and entities, called the List of Excluded Individuals/Entities (LEIE).
Any health care entity that receives federal funding is required to check the LEIE periodically and is prohibited from hiring/contracting with individuals or entities who are on the OIG’s exclusion list. There are significant negative ramifications of being on the OIG’s exclusion list. It can have severe consequences on a professional’s career and make a health provider nearly unemployable: You cannot even work as a janitor at your own hospital!
Employers are very cautious about hiring an individual or contracting with an entity found on the LEIE because it can lead to significant civil monetary penalties. In addition, no payment will be made by Medicare or any State health care program for any items or services furnished, ordered, or prescribed by an excluded individual or entity. This payment prohibition applies to the excluded person, anyone who employs or contracts with the excluded person, and any hospital or other provider for which the excluded person provides services. The exclusion applies regardless of who submits the claims and applies to all administrative and management services furnished by the excluded person. Getting your name off the OIG’s exclusion list is paramount.
OIG imposes two different types of exclusions: mandatory and permissive.
Mandatory Exclusions:
OIG is required by law to exclude individuals and entities from health care programs if they commit certain types of crimes, such as: Medicare or Medicaid fraud; patient abuse or neglect; felony convictions for health care-related fraud, theft, or other financial misconduct; and felony convictions relating to unlawful manufacture, distribution, prescription, or dispensing of controlled substances.
Permissive Exclusions:
OIG has the discretion to exclude individuals and entities from health care programs based on a variety of reasons, such as: misdemeanor convictions related to health care fraud other than Medicare or a State health program; misdemeanor convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances; provision of unnecessary or substandard services; submission of false or fraudulent claims to a Federal health care program; and engaging in unlawful kickback arrangements.
Notice of Intent to Exclude - Appeal an Exclusion before it goes into effect:
Depending on the basis for the proposed exclusion, the process may vary. Typically, the OIG sends out a written Notice of Intent to Exclude (NOI) to any individual that OIG is considering excluding. The NOI will commonly include the basis for the proposed exclusion and a statement about the potential effect of an exclusion. Depending on the type of exclusion, length, and basis, the written notice will also include the earliest date on which OIG will consider a request for reinstatement, appeal rights and reinstatement information.
When an individual or entity gets an NOI, it does not automatically mean they will be excluded. The individual or entity, depending on the basis for exclusion, may have time to respond in writing (between 30-60 days) with any information or evidence relevant to whether the exclusion is warranted and to raise any other related issues, such as mitigating circumstances. OIG is tasked with considering all available information in making a final decision about whether to impose the exclusion.
All exclusions implemented by OIG may be appealed to an HHS Administrative Law Judge (ALJ), and any adverse decision may be appealed to the HHS Departmental Appeals Board (DAB). Judicial review in Federal court is also available after a final decision by the DAB.
It is important to act quickly if you receive an NOI to ensure that you have explored all of your appeal rights and ensure you do not miss an opportunity to submit mitigative evidence for the OIG can consider before it takes its final action.
Reinstatement:
If you have been placed on the OIG exclusions list, you may be able to get off of the list and be “reinstated.” Exclusions typically last for a specified period of time; however, reinstatement is not automatic when that period ends. You must apply for reinstatement and receive written notice from OIG that reinstatement has been granted in order to participate in Medicare, Medicaid, and all other Federal health care programs. The reinstatement process can be started 90 days before the end of the period specified in your exclusion notice letter. You may apply for reinstatement when you have regained the license referenced in the exclusion notice. In addition, under some conditions, an individual or entity excluded may apply for reinstatement if they (1) have obtained a different health care license in the same state, (2) have obtained any health care license in a different state, or (3) do not possess a valid health care license of any kind in any State but have been excluded for a minimum period of 3 years.
The OIG will authorize reinstatement if it determines that the period of exclusion has expired, there are reasonable assurances that the types of actions that formed the basis for the original exclusion have not recurred and will not recur, and there is no additional basis under for continuation of the exclusion. In making the reinstatement determination, the OIG will consider the
(1) Conduct of the individual or entity occurring prior to the date of the notice of exclusion, if not known to the OIG at the time of the exclusion;
(2) Conduct of the individual or entity after the date of the notice of exclusion;
(3) Whether all fines and all debts due and owing (including overpayments) to any Federal, State, or local government that relate to Medicare, Medicaid, and all other Federal health care programs have been paid or satisfactory arrangements have been made to fulfill obligations;
(4) Whether CMS has determined that the individual or entity complies with, or has made satisfactory arrangements to fulfill, all the applicable conditions of participation or supplier conditions for coverage under the statutes and regulations; and
(5) Whether the individual or entity has, during the period of exclusion, submitted claims, or caused claims to be submitted or payment to be made by any Federal health care program, for items or services the excluded party furnished, ordered, or prescribed, including health care administrative services. This section applies regardless of whether an individual or entity has obtained a program provider number or equivalent, either as an individual or as a member of a group, prior to being reinstated.
The OIG will also determine that the individual whose conviction, exclusion, or civil money penalty was the basis for the entity’s exclusion, (1) that they have properly reduced his or her ownership or control interest in the entity below 5 percent; (2) Is no longer an officer, director, agent or managing employee of the entity; or (3) Has been reinstated if the conviction or action by another agency or state agency/licensing board, is reversed/vacated on appeal.
Contact The Law Firm of Marvin Firestone, MD•JD, & Associates, LLP Today!
If you have received a Notice of Intent to Exclude or are an excluded individual on the OIG Exclusions list, we can review the applicable time constraints and guide you through the appeal and reinstatement process. To schedule a FREE initial phone consultation with our California professional license defense law firm, fill out our online form or call us at (650) 212-4900 or toll free at 800-LAW-MDJD (800-529-6353).
Law Firm of Marvin Firestone, MD•JD, & Associates, LLP has offices located in the San Francisco Bay Area and the Central Coast serving clients throughout California.
