State nursing board disciplinary charges can not only threaten your state nursing license but could also land you on the OIG list of excluded individuals and entities. If you end up on that OIG list, you will likely lose your nursing employment. Retain the Lento Law Firm's premier Professional License Defense Team to help you defend disciplinary charges so that you do not end up on the OIG list or to help you to get your name removed from the OIG list. Call 888.535.3686 or complete this contact form now for our highly qualified attorney representation.

The OIG List of Excluded Individuals/Entities

The U.S. Office of the Inspector General (OIG) maintains and publishes a list of healthcare workers and healthcare entities the OIG excludes from participating in federal Medicare, Medicaid, and other health insurance programs. Anyone can download and search the list from the OIG website. Exclusion from Medicare participation means that the federal government will not reimburse for the cost of goods or services that the excluded individuals and entities provide. The list includes individuals such as nurses, physicians, and dentists, as well as the cost of healthcare services Medicare would ordinarily reimburse. The list also includes entities such as pharmacies, hospitals, and medical transportation services, as well as the cost of whose goods and services Medicare would ordinarily reimburse. If you are on the list, Medicare and other federal insurance programs will not reimburse you for your billed services.

OIG List of Excluded Individuals/Entities Purpose

The goal or purpose of the OIG list of excluded individuals/entities is to prevent and reduce federal insurance program fraud. The U.S. Office of the Inspector General (OIG) plays a key role in reducing fraud against federal Medicare, Medicaid, and other health insurance programs. The federal Medicare budget is enormous, over $800 billion annually, representing about 14% of the federal budget. Even a small percentage of fraud cases can have a large impact on the federal budget. Sources estimate annual Medicare fraud at over $100 billion. Maintaining and enforcing the OIG list of excluded individuals/entities is one way in which the federal government reduces Medicare fraud. Don't underestimate the significance of the OIG LEIE and the resources the federal government will bring to bear on its maintenance and enforcement. Federal insurance fraud is big business and a serious issue.

How Entities End Up on the OIG Exclusion List

Individuals and entities typically land on the OIG list of excluded individuals and entities by engaging in some form of federal medical insurance fraud, directly or indirectly. Hospitals, pharmacies, and other healthcare entities may, for instance, attempt to deliberately bill twice for the same service, bill for services not performed, bill for services performed but that were unnecessary, or bill at higher than customary rates, all for the purpose of earning more in reimbursements than they are due. Hospitals, nursing homes, and other healthcare facilities may also surreptitiously employ unlicensed or incompetent nurses and other healthcare professionals while fraudulently billing Medicare for their worthless and even harmful services. Illicitly increasing income and profit, equal to greed through scheming and scamming, is the unlawful motive of an entity that lands on the OIG exclusion list.

How Individuals End Up on the OIG Exclusion List

Nurses and other healthcare professionals might end up on the OIG list of excluded individuals/entities for the same illicit profit reason, except that most nurses are employees rather than entrepreneurs. Employed nurses are not directly concerned with profits but rather with employment, wages, and benefits. The way that nurses land on the OIG exclusion list thus tends to have more to do with their poor, malicious, abusive, neglectful, unauthorized, or unlicensed performance than with duplicitous billing practices. Medicare and other federal reimbursement programs should not have to pay for those kinds of unqualified and unhelpful nursing services. The OIG will thus put nurses on the exclusion list for patient abuse or neglect, unlicensed practice, practice exceeding the scope of nursing, and other grounds, often closely related to nurse discipline under state nursing board standards.

Mandatory and Permissive OIG Exclusion

Federal law requires the OIG to include individuals and entities on the exclusion list in some cases and permits the OIG to include individuals and entities on the list in other cases. Mandatory exclusion involves criminal conviction of the excluded individual or entity for Medicare or Medicaid fraud, fraud relating to SCHIP or other state healthcare programs, or patient abuse or neglect. Mandatory exclusion also applies to felony convictions for other health care-related fraud, theft, or financial misconduct, or for unlawful manufacture, distribution, prescription, or dispensing of controlled substances. If you face OIG mandatory exclusion, let us help you advocate that your offense was not among these mandatory grounds.

Permissive OIG exclusion, where OIG officials may or may not exclude the individual or entity depending on official discretion, involves a misdemeanor conviction for healthcare fraud other than Medicare or a state health program, fraud in a non-healthcare government program, or for the unlawful manufacture, distribution, prescription, or dispensing of controlled substances. Permissive OIG exclusion may also involve suspension, revocation, or loss of a healthcare license based on incompetence, unprofessionalism, lack of financial integrity, unnecessary services, false or fraudulent claims to a federal healthcare program, unlawful kickback arrangements, or defaulting on healthcare education loans. If you face OIG permissive exclusion, let us help you advocate that OIG officials should exercise their discretion not to exclude you.

Why Employers Monitor the OIG LEIE

If your name ends up on the OIG list of excluded individuals/entities, then no hospital, nursing home, residential care facility, or other entity seeking federal reimbursement for services should be employing you. Employers must regularly monitor the OIG list of excluded individuals/entities to ensure that they do not employ excluded individuals. Employers who bill for the services of excluded individuals face stiff federal penalties. The Medicare and Medicaid Patient and Program Protection Act of 1987, Public Law 100-93, established OIG sanction authority, while the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, and the Balanced Budget Act of 1997, Public Law 105-33, expanded that OIG sanction authority. Your employer could pay tens of thousands of dollars in fines and end up on the OIG exclusion list by billing for services that an excluded individual performs. Don't underestimate your employer's financial, regulatory, and reputational interests in complying with OIG LEIE measures. Instead, let us help you stay off the OIG exclusion list.

Relationship of OIG Exclusion to License Discipline

Whenever you face state nursing board disciplinary charges relating to one or more of the OIG mandatory and permissive exclusion grounds, you have two interests: (1) avoiding discipline and (2) staying off the OIG exclusion list. While those interests overlap, and a loss in one instance can lead to a loss in the other instance, the two interests involve different agencies, jurisdictions, officials, and proceedings. State nursing boards hear and decide disciplinary charges in state administrative license proceedings under state nurse practice acts and nursing board rules. The U.S. Office of the Inspector General hears and decides OIG exclusion matters in federal administrative proceedings under federal law and procedure.

You could thus suffer state nursing board discipline but remain off the OIG exclusion list. Alternatively, you could suffer OIG exclusion but not suffer state nursing board discipline. Yet if the disciplinary and exclusion grounds overlap, for instance, involving patient abuse and neglect, you may well find that the outcome in one proceeding, especially your state disciplinary proceeding, determines or strongly influences the outcome in the other proceeding. Your stakes are higher anytime you face a disciplinary complaint that implicates OIG mandatory or permissive exclusion. You can also benefit from a coordinated defense in both proceedings. Let us help ensure that your outcomes are the best possible in both proceedings.

Most Common Grounds for OIG Exclusion

Compliance provider analysis of the OIG excluded list of individuals/entities indicates that license suspension or revocation is the most common grounds for OIG exclusion. License discipline is the cause for OIG exclusion in fully 43% of all exclusion cases. If you lose your nursing license to discipline, you may well end up on the OIG exclusion list, complicating your ability to resume your nursing practice after regaining your license. The same provider analysis further indicates that nurses are the most commonly excluded healthcare providers. Nurses and nurse aides make up fully 44% of the excluded individuals. The reason may not be that nurses suffer discipline or commit fraud more frequently than other professionals. The reason may instead be that nurses number around 2.8 million, while physicians number under a million and dentists around 200,000. More nurses mean more exclusion. But that statistic is no comfort to you. Let us help you defend your state nursing board disciplinary charges and OIG exclusion.

OIG Exclusion Errors

The above provider analysis warns that the OIG list of excluded individuals/ entities produces a surprising and disappointing number of false positives and false negatives. A false positive is an employer alert that you are on the OIG exclusion list and, therefore not employable, when you are not or should not be on the list. A false negative is an indication to the employer that you are not on the OIG exclusion list and, therefore are employable, when in fact, you are on the OIG exclusion list and therefore not employable. OIG exclusion errors can certainly result from careless employer inspections of the OIG exclusion list. But they can also result from incomplete or inaccurate information on the OIG exclusion list, which may not include your full name, may misspell your name, may use a maiden name or alias, or may confuse your name with the name of another individual who should be on the list. Let us help you resolve issues with your state nursing board, the OIG, and your employer over OIG exclusion list errors.

State Exclusion Lists

While the federal OIG list of excluded individuals/entities may be your greater concern, you could also face state exclusion. States may maintain their own exclusion lists, similar in form and function to the federal OIG exclusion list, to protect state reimbursement programs from fraud. Texas is an example. The Texas Office of Inspector General (OIG) works with the Texas Board of Nursing to maintain a state exclusion list like the federal OIG exclusion list. Texas Administrative Section 371.1705 lists the mandatory exclusions the Texas OIG must include on the state exclusion list, disqualifying the nurse from reimbursement for services in Titles V, XIX, and XX programs and the state's CHIP programs. Section 371.1707 lists permissive exclusions. Your state nursing board may likewise work with your state Office of the Inspector General on a similar state exclusion list. Let us help you fight your state nursing board disciplinary charges so that you stay off your state list.

Defenses to Disqualifying Disciplinary Charges

State nursing board disciplinary charges are allegations, not findings. You may well have a defense to any state nursing board disciplinary charges you receive that could land you on the federal OIG exclusion list or a similar state exclusion list. Our skilled and experienced attorneys may be able to show that you did not commit the alleged actions, that someone else was responsible for the alleged abuse or other wrongs, that you acted in reasonable reliance on supervisor instructions or physician orders, that you acted in self-defense, or that you lacked the facility equipment and supplies to carry out your nursing duties within standards. If your defense requires expert nursing testimony, we can retain nursing consultants to present that testimony while cross-examining testimony from adverse witnesses.

Remedial Relief as an Alternative to Discipline

We can also communicate, advocate, and negotiate privately with state nursing board investigators and other officials to show that remedial measures may be better than punitive discipline. In many discipline cases, the question isn't whether the nurse committed the alleged acts arguably violating nursing standards. The question is instead what the state nursing board should responsibly do about the alleged violation. State nursing boards generally have the authority to impose a wide range of sanctions within their discretion. The Texas Nursing Practice Act is an example. The Act's Section 301.453 authorizes the Texas Board of Nursing not only to suspend or revoke a license but, alternatively, to order counseling, training, education, supervision, or similar remediation. Let us help you put on your best case in mitigation of any sanctions. Remedial measures may improve your knowledge and skills, limit your exposure, and preserve your employment and reputation.

Avoiding Disqualifying Disciplinary Charges

Also, don't miss your opportunity to avoid disciplinary charges that could land you on federal and state OIG exclusion lists. Patients, their family members, your employer representatives, and your colleagues may all complain to your state nursing board's disciplinary officials. If you retain us the moment you hear of allegations of your misconduct, we may be able to help you communicate with those potential complainants to head off their complaints. We can help you gather the evidence and organize and present the information that exonerates you from the allegations or mitigates any disciplinary consequence. Sometimes, a little explanation, in the right tone and manner and with appropriate support, is all it takes to mollify angry, frustrated, or concerned colleagues and patients. Our attorneys know the kinds of communications to make.

The same is true in your dealings with state nursing board investigators. If a complaint reaches the state nursing board, it will generally assign an investigator if it believes the complaint to be potentially credible. Retain us the moment you learn of an investigation so that we can supply the investigator with accurate, truthful, consistent, complete, and documented explanations of your actions. Even if the investigator decides to proceed with formal disciplinary charges, we may be able to advocate and negotiate with the investigator to avoid formal disciplinary charges that could land you on the OIG exclusion list. Reduced charges below OIG mandatory or permissive exclusion may keep you off the exclusion list. Likewise, remedial measures in lieu of punitive discipline may show the OIG that it has no authority to add your name to the exclusion list.

Protective Procedures for Disqualifying Discipline

Your state's Nursing Practice Act must generally provide you with due process, giving you notice and a fair hearing, before imposing discipline that could land you on the OIG exclusion list. You have the constitutional right to due process against arbitrary state nursing board action unlawfully depriving you of your nursing license and practice. State nursing practice acts typically offer extensive hearing procedures to address your due process rights. Section 70-160 of the Illinois Nurse Practice Act is an example, expressly incorporating the procedural protections of the state's administrative procedure act. Those protections include notice of your disciplinary charges, opportunity to obtain, review, and challenge the state board's evidence against you, and the opportunity to present your own evidence at a formal hearing before an administrative law judge or panel. Let us help you strategically invoke those procedural protections in your own state, to ensure your best disciplinary outcome that keeps you off the OIG exclusion list.

The Role of License Defense Counsel

Consider carefully this caution as to your choice of license defense counsel. Local criminal defense counsel and civil litigation attorneys generally lack the substantial administrative law knowledge, skills, and experience that are necessary for your best license defense. Your state's administrative licensing laws, rules, and procedures all differ from your state's criminal and civil court laws, rules, and procedures. Our attorneys focus their practice on professional license defense in state administrative proceedings. We know the facts, laws, rules, and procedures to invoke and advocate for your best disciplinary outcome because we have the substantial experience strategic and effective representation generally takes. Retain us for the disciplinary outcome you need to keep your name off the OIG exclusion list.

OIG Exclusion List Reinstatement

Federal law, rules, and procedures permit you to apply for reinstatement to the federal OIG list of excluded individuals/entities. We can help you obtain reinstatement. OIG exclusion may indicate an exclusion duration such as five or ten years. Once that period expires, you may still have to move for reinstatement, meaning to remove your name from the OIG exclusion list. If, instead, your OIG exclusion is because of a license suspension, then you may need to move the OIG to remove your name from the exclusion list when the suspension ends and you have regained your license. Let us help you make the appropriate OIG filings and representations to get your name off the exclusion list, whether at the federal or state level or both.

Impacts of Discipline on Your Nursing Career

OIG exclusion is not your only concern and may not even be your biggest concern when facing state nursing board disciplinary charges. Any discipline, even as little as a reprimand and probation, could cause your employer to terminate your employment, to avoid potential liability and to preserve morale and reputation. Let us help you communicate with your employer so that your employer understands your commitment to beating disciplinary charges and ensuring your ability to practice safely and competently. Whether you land on the OIG exclusion list or not isn't the only question your employer faces. Let us help you preserve your employment, reputation, and relationships, notwithstanding your risks related to the OIG exclusion list. Keep in mind the big picture.

Premier License Defense Attorneys Available

If you face state nursing board disciplinary charges, retain the Lento Law Firm's premier Professional License Defense Team for your best defense so that you do not end up on the OIG list of excluded individuals and entities. We help hundreds of nurses and other healthcare professionals nationwide on matters relating to disciplinary charges, including matters involving the OIG LEIE. Call 888.535.3686 or complete this contact form now for our skilled and experienced representation.