The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services maintains an Exclusion List. Any health professional whose name is on the OIG Exclusion List may not receive federally funded payments for providing healthcare services. OIG exclusion can be the death knell for professional healthcare practice. If you receive notice of the OIG's intent to exclude you, or you are already on the OIG Exclusion List, retain the Lento Law Firm's premier Professional License Defense Team to help you avoid or remove the listing and save your healthcare practice. Call 888.535.3686 or complete this contact form now.
The Operation of the OIG Exclusion List
When the OIG places you on its Exclusion List, which the OIG also calls its List of Excluded Individuals/Entities (LEIE), it disqualifies you and your employer from receiving payment for your healthcare services, from any federal healthcare funding program, for any items or services you furnish, order, or prescribe. Those federal programs include the massive Medicare, Medicaid, and TRICARE programs that undergird the nation's healthcare system. Placement on the OIG Exclusion List effectively makes you unemployable across a wide range of hospitals, clinics, agencies, and professional healthcare practices that receive Medicare, Medicaid, and TRICARE payments to fund any part of their healthcare services. The OIG Exclusion List is searchable online. You won't generally be able to hide your listing from employers, licensing officials, patients, or others who have an interest in knowing about your professional reputation and credentials.
The Impact of OIG Exclusion on Healthcare Employers
Healthcare employers are unlikely to employ healthcare workers whose names appear on the OIG Exclusion List, even if some or many of their patients pay for their healthcare services through private insurance rather than federal programs. Employing a healthcare professional whose name is on the OIG Exclusion List would require an employer to monitor the patients whom the professional serves, only allowing them to serve patients not covered by a federal program. Employers won't generally maintain the complex monitoring system such a practice would require. And in assigning you to cover an emergency room, hospital ward or unit, nursing home, clinic, or medical practice, your employer wouldn't be practically able to pick and choose the patients whom you serve.
The Impact of OIG Exclusion on Health Professionals
It's not just that your employer won't want to, and likely won't practically be able to, monitor and patrol the line between federally funded and privately insured healthcare patients in assigning your patients to serve. It's also that your placement on the OIG Exclusion List signals to your employer that the federal government believes you to be unfit in some manner for providing those services. Your OIG Exclusion List placement is a black flag, warning your employer to take similar action to prevent you from harming patients. Your employer might even face civil liability or other risks simply by continuing to employ you. In short, you are very likely to lose your job once the OIG places you on its Exclusion List if your job entails providing healthcare services to patients.
Civil Monetary Penalties for Employers
Federal law and regulation ensure that healthcare employers regularly check the OIG Exclusion List (the LEIE) to see if any of their healthcare workers have appeared on the list. The OIG has the authority to pursue civil monetary penalties (CMP) against employers hiring healthcare professionals on the OIG Exclusion list. The OIG's webpage on the subject expressly warns employers, “To avoid CMP liability, healthcare entities should routinely check the list to ensure that new hires and current employees are not on it.” Thus, beware of listings. You would have the duty to report your OIG exclusion to your employer, but even if you do not do so, your employer should regularly check the OIG Exclusion List to avoid civil monetary penalties.
Reporting OIG Exclusion
You may also have certain duties to report the OIG's placement of your name on its Exclusion List. You may owe those duties under the federal programs paying for your services, under your employment agreement with your hospital, clinic, agency, or other healthcare employer, and under your licensing body's rules and regulations. Failing to report your OIG exclusion could result in additional penalties or sanctions, such as your employment termination or a proceeding to suspend or terminate your professional license. Our attorneys can help you determine your reporting requirements, help you comply with those reporting requirements, and help you defend against undue employment termination proceedings and professional license proceedings. Beware of these collateral consequences of OIG exclusion and deal with them responsibly. Your job and career may depend on it.
OIG Authority to Exclude Healthcare Professionals
The Office of the Inspector General (OIG) within the U.S. Department of Health and Human Services is the federal office that enforces federal law on the funding of healthcare services, among other responsibilities. The OIG unquestionably has the authority to exclude healthcare professionals from federal payment for items or services they furnish, order, or prescribe. The OIG excludes healthcare professionals under Sections 1128 and 1156 of the Social Security Act. Those healthcare professionals may include not only physicians but also nurses, nurse aides, and any other healthcare professional whose services federal funding covers. Indeed, the OIG's exclusion extends not just to the involved healthcare professional but also to the professional's immediate family members. You cannot avoid exclusion by furnishing items or services through a family member.
Grounds for OIG Exclusion of Healthcare Professionals
The OIG cannot simply make up the grounds on which it seeks exclusion. It must instead allege and prove one of the statutory or regulatory grounds authorizing exclusion. Each ground for exclusion may involve different proofs, evidence, and defenses. Consider the following grounds and how our attorneys may be able to help you defend the OIG's exclusion charges.
Healthcare Fraud as Grounds for OIG Exclusion of Healthcare Professionals
Healthcare fraud is a primary ground on which the OIG excludes healthcare professionals from payment for items and services they furnish, order, or prescribe. Healthcare fraud involves the healthcare provider's false representation knowingly made to induce the payor's reliance, causing the payor a loss. A healthcare provider committing fraud might bill for services not provided, bill for unnecessary services, duplicate billing for the same services, or otherwise deliberately misrepresent the services provided to obtain payment not owing. Simply making a mistake in recording the hours, services, or items furnished does not ordinarily constitute fraud. Fraud typically involves deliberate lying with the intent to receive payments not owed.
Defending fraud allegations can involve showing that your statements and records were accurate, that any inaccuracies were not material to the billing, that any inaccuracies were due to others and not to you, that you were reasonably unaware of any inaccuracies, that you did not intend any inaccuracies to induce unwarranted payment, or that the federal program did not rely on any inaccuracies. Our defense may involve calling you or others as witnesses to prove any of the above circumstances. We may also retain forensics experts and experts in medical billing to prove the above defenses. Fraud charges are serious but defensible in certain cases because of their several elements.
Abuse or Neglect as Grounds for OIG Exclusion of Healthcare Professionals
Abuse or neglect is another primary ground for OIG exclusion. If the OIG determines that you committed patient or resident abuse or neglect relating to federally funded healthcare services, it will place your name on its Exclusion List. Patient or resident abuse or neglect may involve a healthcare worker striking, unduly restraining, yelling or screaming at, or threatening a patient or resident, denying or threatening to deny a patient or resident contact with family members, refusing to provide needed medication, assistive devices, or services, and deliberately or recklessly ignoring known serious need for care, such as leaving a patient or resident without adequate nutrition or hydration, with soiled clothes and bedding, or in pain or serious discomfort that ordinary care would have avoided.
Abuse or neglect findings are, like healthcare fraud, among the most serious of matters to which the OIG will promptly devote its attention and resources. Take abuse and neglect allegations seriously, whenever they arise, if possible before they reach OIG officials. If you receive notice of the OIG's intent to exclude you from federal payment for items and services you furnish, order, or prescribe based on abuse or neglect allegations, we may be able to defend you by showing that you did not commit the alleged abuse or neglect, no abuse or neglect occurred, you were not reasonably aware of the patient or resident need for care, or that others for whom you were not responsible committed the abuse or neglect without your knowledge. Beware abuse and neglect charges for their severe and wide-ranging consequences, including OIG exclusion.
Permissive OIG Exclusion of Healthcare Professionals
The OIG has some discretion in some cases whether to include your name on its Exclusion List. Discretion means that OIG officials may listen to your arguments that exclusion is unnecessary and unwise under all the circumstances based on exonerating or mitigating evidence. The OIG may, for instance, decide that although some evidence of disqualifying misconduct exists, that evidence is unreliable compared to your contrary evidence. Patients and residents sometimes falsely allege wrongs, for example, either through delusion or in retaliation. The OIG may also decide that although misconduct occurred, it caused or threatened no harm and is unlikely to occur again based on your corrective measures and assurances.
Mandatory OIG Exclusion of Healthcare Professionals
OIG officials, though, only have regulatory authority to exercise discretion in certain cases. Some grounds for exclusion are permissive, while other grounds for exclusion are mandatory, meaning the OIG has no discretion to relieve you from a finding of that mandatory disqualifying misconduct. Abuse or neglect is the primary mandatory disqualifying misconduct. If the OIG finds that you committed abuse or neglect in your provision of federally funded healthcare services, you must prove the allegations untrue. Your admission that the abuse or neglect allegations are true would mean that you could no longer argue that the OIG should relieve you from exclusion for other reasons. Other mandatory exclusions include program-related crimes and felony drug convictions. Let us help you fight a mandatory exclusion charge on its face. We may be able to help you prove mandatory exclusion charges untrue.
Waiver for Healthcare Professionals to Avoid OIG Exclusion
The OIG has statutory and regulatory authority to waive OIG exclusion in certain cases. A waiver of OIG exclusion means that the OIG will decide not to list your name on the LEIE, relieving you from all of a listing's consequences. If the OIG waives your exclusion, your employer may still receive federal payments for items and services you furnish, order, or prescribe. A waiver is, in short, a win. OIG waivers, though, require that you submit writing to the OIG clearly establishing the regulatory grounds for the waiver. Let our attorneys help you evaluate and make a waiver request. To be successful, your waiver request must meet the requirements of the authorizing federal regulations. The OIG lists current waivers in effect for the public and employers to examine.
Grounds for OIG Exclusion List Waiver
You cannot simply argue any grounds for an OIG Exclusion List waiver. You must instead establish a regulatory waiver ground. The primary ground for a waiver involves community hardship. Community hardship is when you, the excluded individual, are “the sole community physician or the sole source of essential specialized services” within the community, and your exclusion “would impose a hardship on beneficiaries” of your services. A second, broader ground for a waiver involves when the OIG finds that exclusion “would not be in the public interest.” Each of these grounds requires substantial evidence and interpretation to establish. You cannot simply recite the regulatory language with a broad brush. Your waiver application must show the full context in which you provide healthcare services and the effect of exclusion on the community or public for you to qualify for a waiver. Let our skilled and experienced attorneys help you make those showings.
Your written application for a waiver must also show that the ground for your exclusion was not patient or resident abuse or neglect. Abuse and neglect are mandatory grounds, not permissible grounds, for OIG exclusion. If abuse or neglect was the grounds for your exclusion, you will not obtain a waiver. Abuse and neglect can be broad categories with broad regulatory definitions. Our attorneys may be able to help you show OIG officials that your disciplinary exclusion did not, in fact, involve abuse or neglect, even if allegations against you may have fallen into one or both of those broad categories. Don't attempt to prove a waiver on your own or with unqualified legal representation. Retain our attorneys' skilled and experienced services.
The Process of OIG Exclusion of Healthcare Professionals
If the OIG intends to exclude you, you should receive the OIG's written notice clearly telling you that it intends to use its Exclusion List to disqualify you from Medicare, Medicaid, TRICARE, and any other federal healthcare funding program payments for your healthcare services. The notice will tell you that you must either contest the OIG's listing of your name on its Exclusion List within thirty days or notify your employer that it will not receive payment for services. In short, if you do not promptly fight the OIG notice, you will not be able to work in any position providing any services for which federal healthcare funding. You must act quickly. And your first step should be to retain us.
Defending Healthcare Professionals Against OIG Exclusion
Just because you receive the OIG's notice of its intent to exclude you from federal payments does not mean that you will end up on the Exclusion List. The notice itself should tell you of your right to contest the OIG's exclusion charges. OIG exclusion is not a foregone conclusion simply because of its notice. Like other federal and state regulators, the OIG makes mistakes, sends notices erroneously, asserts grounds for exclusion for which the OIG has no evidence or only weak evidence, and asserts grounds for exclusion that do not meet legal and administrative standards. The administrative law judges who hear OIG exclusion cases have the authority to find that OIG witnesses lack credibility, the OIG has not presented substantial evidence on an element of the charge, and that the weight of your testimony, the testimony of your witnesses, and your documentary evidence outweighs the OIG's evidence when the OIG has the evidentiary burden. Defense of the OIG's exclusion charges may well be possible with our skilled and experienced services.
Our Defense Services Fighting OIG Exclusion
Our attorneys can help you fight the OIG's case for exclusion, giving you the best opportunity to avoid damaging or even career-ending listing. Our attorneys can provide any or all of the following skilled and experienced defense services, among other valuable services:
- appear on your behalf before the OIG, notifying its officials to communicate with us as your legal representative so that you do not miss or misunderstand its communications and so that its disciplinary officials know that you are taking the charges seriously and that we are ready to defend you;
- invoke the OIG's protective procedures so that you do not suffer a default of the charges and an automatic listing without a fair hearing;
- help you communicate with your employer and licensing body about the nature and status of the OIG proceeding to preserve your employment and license pending the proceeding's outcome;
- require the OIG to disclose the basis and supporting evidence for its intended exclusion so that you can evaluate and respond to that evidence with our assistance;
- help you identify, acquire, organize, and present your exonerating and mitigating evidence, countering any evidence that the OIG claims to have of your disqualifying wrongdoing;
- communicate and negotiate with OIG officials advocating for their early voluntary dismissal of OIG exclusion charges, with the prospect of saving you the time, trouble, and stress of extended contested proceedings;
- appear with you and on your behalf at the OIG exclusion hearing, ready to cross-examine OIG witnesses, challenge OIG documentary evidence, present your own witnesses and documentary evidence, and advocate for your relief from OIG charges;
- review the OIG's hearing decision, ensuring that you understand its implications for your healthcare employment;
- if you suffer an adverse finding, review the OIG's decision for grounds for an administrative appeal, and then pursue and perfect that appeal on your behalf, seeking to overturn the adverse findings;
- seek waiver, reinstatement, and other relief from any OIG exclusion you have already suffered and
- help you defend employer or license proceedings relating to OIG exclusion and otherwise deal with the collateral consequences of OIG exclusion.
OIG Reinstatement of Healthcare Professionals
OIG findings of exclusion typically have defined durations for the exclusion. If you suffer OIG exclusion, it may be for a period of five years, ten years, or a similar duration. Once the exclusion period expires, you have an opportunity to seek reinstatement, meaning that you would once again qualify for federal payment of items or services you furnish, order, or prescribe. The expiration of your exclusion period, though, does not automatically reinstate you. Instead, you must submit a written request no earlier than ninety days before the exclusion period expires, showing that you have regained the license or other credential, the loss of which triggered your OIG exclusion. Our attorneys can help you make that application for reinstatement and properly document it so that you can regain your employment and healthcare practice under federal funding.
Retain the Lento Law Firm's premier Professional License Defense Team now if you face OIG exclusion or are ready to seek reinstatement of the OIG Exclusion List. Your healthcare job and career may depend on avoiding or removing your listing or gaining reinstatement. Call 888.535.3686 or complete this contact form to tell us about your situation.
