The Department of Health and Human Services has the authority to exclude certain individuals from participating in Medicare, Medicaid, and all Federal health care programs as defined by 1128B(f) of the Social Security Act.
Exclusion from participation can materially affect a professional’s scope of practice because exclusion prohibits the professional from submitting or causing claims to be submitted to any Federal health care program (such as Medicare, Medicaid, VA, TRICARE, the Military Direct Care System, etc.) for any items or services the professional provides and prevents the professional for working in any capacity for an organization that accepts Federal funding. (However, exclusion does not prevent the professional or their family members from receiving benefits to which they are entitled under a Federal program.)
There are two types of exclusion: Mandatory Exclusion is required for certain offenses (42 USC §1320a-7(a)) and Permissive Exclusion is discretionary and may be imposed for certain other offenses (42 USC §1320a-7(b)).
Generally, mandatory exclusion is required for a (i) conviction of health care program-related crimes, (ii) conviction related to patient abuse, (iii) felony conviction related to health care fraud, and (iv) felony conviction related to controlled substances.
Generally, permissive exclusion may be imposed for a number of different offenses including but not limited to (i) a misdemeanor conviction related to controlled substances, (ii) a health care license revocation or suspension, and (iii) excessive charges or unnecessary services.
In my practice, I have seen physicians and other licensed professionals (including nurses) receive a letter from the OIG proposing an exclusion from participation in Federal health care programs following a suspension of their professional license or after a misdemeanor or felony conviction or after being convicted of a drug crime.
In cases where exclusion is permissive, it is recommended to provide the OIG with a clear and detailed response as to why the exclusion should not be imposed. Under certain circumstances, the OIG may choose not to impose exclusion. In other instances, the OIG will impose exclusion for a specific time period, for example, during the time period that the professional’s license is suspended.
If you receive a notification from the OIG proposing an exclusion, experienced legal counsel can assist you to formulate and file a timely response.
As always, if you have any questions about this post, the State Medical Board of Ohio or the unintended consequences of a Medical Board disciplinary action, feel free to contact the attorneys at the Collis Law Group at 614-486-3909 or send me an email at beth@collislaw.com
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