federal health care program

Five Key Proposed Changes to OIG’s CMP Authority

Posted by Ryan Blaney on June 05, 2014
HHS, OIG / No Comments

In May and within a week of the Office of Inspector General of the Department of Health and Human Services (OIG) releasing a proposed rule to expand its exclusion authority, the agency also released a proposed rule (Rule) expanding its authority to impose civil monetary penalties (CMPs). OIG anticipates that “CMP collections may increase in the future in light of the new CMP authorities and other changes proposed in this [R]ule.” Over the last decade, OIG has collected more than $165 million in CMPs (between $10.2 million to $26.2 million per year).

Health care providers, suppliers and related institutions should pay particular attention to five proposed key changes:

(1) The focus on an expansion in the range of conduct for which OIG could assess CMPs to include: failing to provide OIG timely access to documents, ordering or prescribing medication or services while excluded from participation in federal health care programs, making false statements on enrollment applications to participate in federal health care programs, failing to report and return known overpayments, and making or using a false statement that is material to a false or fraudulent claim.

(2) Interpretation of the penalty as a per day penalty—for example, up to $10,000 for each day a person fails to report and return an overpayment.

(3) Imposition of CMPs on Medicare Advantage and Medicare Part D organizations (if any of their employees or contractors engaged in fraudulent activity). This broadens the general liability of these organizations for misconduct to include contracted providers or suppliers, employees and agents. Medicare Advantage and Part D organizations would also be eligible for CMPs if they enroll an individual (or his or her designee) without consent; transfer an enrollee to another plan without the enrollee’s (or his or her designee’s) consent; transfer an enrollee to make a commission; fail to comply with marketing restrictions; or employ or contract with any person who engages in prohibited conduct.

(4) Revision to the current structure of 42 C.F.R. Part 1003 because it is “cumbersome and potentially confusing for the reader” in order to “add clarity and improve transparency in OIG’s decision-making processes.” The bases for CMP assessments would be grouped into subsections by subject matter. OIG would provide a single list of factors to be considered when determining the amount of a CMP to include: the nature and circumstances of the violation, the degree of culpability of the person, the history of prior offenses, other wrongful conduct, and other matters as justice may require.

(5) An increase of the claims-mitigating factor from $1,000 to $5,000. The claims-mitigating factor acts as a threshold to help OIG determine the severity of a program violation. OIG believes that the $1,000 threshold is “lower than appropriate . . . given the changes in the costs of health care since this regulation was last updated in 2002.”

Other notable proposed changes include: the addition of a mitigating factor for “appropriate and timely corrective action” taken by a person under OIG’s Self-Disclosure Protocol; clarification that a single aggravating circumstance may result in the maximum amount allowed penalty, assessment, or exclusion; and the delegation of authority from the Department of Health and Human Services Secretary to OIG at Part 1003.150.

Comments to the Rule are due by July 11, 2014.

Ryan Blaney

Ryan Blaney

Ryan Blaney joined Cozen O'Connor as a member of the firm's Health Law group. Ryan practices in the firm's Washington, D.C., office. He focuses his practice on representing clients in the health care and life sciences industries in a wide range of matters, including health care fraud and abuse, civil and criminal government investigations, qui tam and whistle-blower disputes under the False Claims Act and other federal and state laws and regulations, HIPAA privacy and data security, compliance and transactional services, and antitrust matters.

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Proposed Expansion of OIG’s Exclusion Authority

Posted by Ryan Blaney on June 05, 2014
ACA, Affordable Care Act, HHS, OIG / 1 Comment

In May, the Office of Inspector General of the Department of Health and Human Services (OIG) proposed a new rule (Rule) that would implement changes included in the ACA. The Rule would expand OIG’s authority to exclude individuals and entities from participation in federal health care programs, among other changes.

The Rule would build on OIG’s existing authority, but enable the agency to impose penalties for a broader array of conduct. OIG currently has the authority to exclude individuals and entities from participation in federal health care programs who are deemed “untrustworthy.” Certain bases for exclusion require OIG to impose a mandatory exclusion period of at least five years. Other bases allow OIG broad discretion to determine whether to impose an exclusion and for how long.

The Rule change includes three proposed bases for permissive exclusion: (1) conviction related to the obstruction of an audit; (2) failure to supply payment information for items or services; and (3) to make, or cause to be made, false statements, omissions, or misrepresentations of material facts in an application to participate in a federal health care program.

In addition, the Rule would give OIG the power to issue testimonial subpoenas during exclusion investigations, and remove any statute of limitations on exclusion actions stemming from false claims proceedings. The proposed removal of the statute of limitations would give the authority to impose exclusions at any time, even when the exclusion is due to violations of another statute that might have a specified time limit. OIG considered but did not finalize a similar provision in 2002. The Rule also includes a proposition to modify exclusion reinstatement rules such that individuals excluded as a result of losing their licenses could rejoin the federal health care programs earlier if they meet certain criteria.

Comments to the Rule are due on July 8, 2014.

Ryan Blaney

Ryan Blaney

Ryan Blaney joined Cozen O'Connor as a member of the firm's Health Law group. Ryan practices in the firm's Washington, D.C., office. He focuses his practice on representing clients in the health care and life sciences industries in a wide range of matters, including health care fraud and abuse, civil and criminal government investigations, qui tam and whistle-blower disputes under the False Claims Act and other federal and state laws and regulations, HIPAA privacy and data security, compliance and transactional services, and antitrust matters.

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