• Updated OIG Guidance on Health Care Program Exclusions - More Trouble for Health Care Entities Owned or Controlled by Excluded Persons?
  • May 31, 2013
  • Law Firm: Alston Bird LLP - Atlanta Office
  • On May 8, 2013, the United States Department of Health & Human Services (HHS) Office of Inspector General (OIG) issued an updated advisory bulletin on the impacts of exclusion from federal health care programs. This guidance updated the previous 1999 OIG advisory on exclusions. The new guidance provides significantly more detail on conduct that might trigger exclusion or sanction, as well as the affirmative duties imposed on entities to ensure they are not impermissibly interacting with an excluded person. What is of particular interest, however, is the OIG guidance’s discussion on permissive exclusion of a health care provider because it is controlled or owned in part by an excluded individual. The previous guidance contained no similar discussion, and it is of note that OIG chose to present guidance on the issue considering this type of exclusion is infrequent-it represents less than three percent of current exclusions. Does this possibly suggest a new level of scrutiny for entities that are controlled or owned in part by an excluded individual? The “owned in part” provision is especially concerning because, as discussed below, a relatively modest nexus can trigger review by OIG for potential exclusion. In this advisory, we provide a summary of the legal framework and new OIG guidance on this discretionary exclusion.