Background Information & Exclusion Authorities
OIG has the authority to exclude individuals and entities from Federally funded health care programs pursuant to section 1128 of the Social Security Act (Act) (and from Medicare and State health care programs under section 1156 of the Act) and maintains a list of all currently excluded individuals and entities called the List of Excluded Individuals/Entities (LEIE). Anyone who hires an individual or entity on the LEIE may be subject to civil monetary penalties (CMP).
Types of Exclusions
Exclusions are imposed for a number of reasons, some are required by law and other under OIG's discretion. To avoid CMP liability, health care entities need to routinely check the LEIE to ensure that new hires and current employees are not on the excluded list.
Mandatory exclusions
OIG is required by law to exclude from participation in all Federal health care programs individuals and entities convicted of the following types of criminal offenses:
- Medicare or Medicaid fraud, as well as any other offenses related to the delivery of items or services under Medicare, Medicaid, SCHIP, or other State health care programs;
- patient abuse or neglect;
- felony convictions for other health care-related fraud, theft, or other financial misconduct;
- and felony convictions relating to unlawful manufacture, distribution, prescription, or dispensing of controlled substances.
Permissive exclusions
OIG has discretion to exclude individuals and entities on a number of grounds, including (but not limited to):
- misdemeanor convictions related to health care fraud other than Medicare or a State health program,
- fraud in a program (other than a health care program) funded by any Federal, State or local government agency;
- misdemeanor convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances;
- suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity;
- provision of unnecessary or substandard services;
- submission of false or fraudulent claims to a Federal health care program;
- engaging in unlawful kickback arrangements;
- defaulting on health education loan or scholarship obligations;
- and controlling a sanctioned entity as an owner, officer, or managing employee.
Effects of Exclusion
The effects of an exclusion are outlined in the Updated Special Advisory Bulletin on the Effect of Exclusion From Participation in Federal Health Programs, but the primary effect is that no payment will be made for any items or services furnished, ordered, or prescribed by an excluded individual or entity. This includes Medicare, Medicaid, and all other Federal plans and programs that provide health benefits funded directly or indirectly by the United States (other than the Federal Employees Health Benefits Plan).
OIG's Exclusions Process
OIG's exclusions process is governed by regulations that implement sections of the Act. When an individual or entity gets a Notice of Intent to Exclude (NOI), it does not necessarily mean that they will be excluded. OIG will carefully consider all material provided by the person who received the NOI as we make our decision. All exclusions implemented by OIG may be appealed to an HHS Administrative Law Judge (ALJ), and any adverse decision may be appealed to the HHS Departmental Appeals Board (DAB). Judicial review in Federal court is also available after a final decision by the DAB.
Exclusion Authorities
| Social Security Act | 42 USC § | Amendment |
|---|---|---|
| 1128 | 1320a-7 | Scope of exclusions imposed by OIG expanded from Medicare and State health care programs to all Federal health care programs, as defined in section 1128B(f)(1). |
| Social Security Act | 42 USC § | Amendment |
|---|---|---|
| 1128(a)(1) | 1320a-7(a)(1) | Conviction of program-related crimes. Minimum Period: 5 years |
| 1128(a)(2) | 1320a-7(a)(2) | Conviction relating to patient abuse or neglect. Minimum Period: 5 years |
| 1128(a)(3) | 1320a-7(a)(3) | Felony conviction relating to health care fraud. Minimum Period: 5 years |
| 1128(a)(4) | 1320a-7(a)(4) | Felony conviction relating to controlled substance. Minimum Period: 5 years |
| 1128(c)(3)(G)(i) | 1320a-7(c)(3)(G)(i) | Conviction of second mandatory exclusion offense. Minimum Period: 10 years |
| 1128(c)(3)(G)(ii) | 1320a-7(c)(3)(G)(ii) | Conviction of third or more mandatory exclusion offenses. Permanent Exclusion |
| Social Security Act | 42 USC § | Amendment |
|---|---|---|
| 1128(b)(1)(A) | 1320a-7(b)(1)(A) | Misdemeanor conviction relating to health care fraud. Baseline Period: 3 years |
| 1128(b)(1)(B) | 1320a-7(b)(1)(B) | Conviction relating to fraud in non-health care programs. Baseline Period: 3 years |
| 1128(b)(2) | 1320a-7(b)(2) | Conviction relating to obstruction of an investigation or audit. Baseline Period: 3 years |
| 1128(b)(3) | 1320a-7(b)(3) | Misdemeanor conviction relating to controlled substance. Baseline Period: 3 years |
| 1128(b)(4) | 1320a-7(b)(4) | License revocation, suspension, or surrender. Minimum Period: Period imposed by the state licensing authority. |
| 1128(b)(5) | 1320a-7(b)(5) | Exclusion or suspension under federal or state health care program. Minimum Period: No less than the period imposed by federal or state health care program. |
| 1128(b)(6) | 1320a-7(b)(6) | Claims for excessive charges, unnecessary services or services which fail to meet professionally recognized standards of health care, or failure of an HMO to furnish medically necessary services. Minimum Period: 1 year |
| 1128(b)(7) | 1320a-7(b)(7) | Fraud, kickbacks, and other prohibited activities. Minimum Period: None |
| 1128(b)(8) | 1320a-7(b)(8) | Entities controlled by a sanctioned individual. Minimum Period: Same as length of individual's exclusion. |
| 1128(b)(8)(A) | 1320a-7(b)(8)(A) | Entities controlled by a family or household member of an excluded individual and where there has been a transfer of ownership/control. Minimum Period: Same as length of individual's exclusion. |
| 1128(b)(9), (10), and (11) | 1320a-7(b)(9), (10), and (11) | Failure to disclose required information, supply requested information on subcontractors and suppliers; or supply payment information. Minimum Period: None |
| 1128(b)(12) | 1320a-7(b)(12) | Failure to grant immediate access. Minimum Period: None |
| 1128(b)(13) | 1320a-7(b)(13) | Failure to take corrective action. Minimum Period: None |
| 1128(b)(14) | 1320a-7(b)(14) | Default on health education loan or scholarship obligations. Minimum Period: Until default or obligation has been resolved. |
| 1128(b)(15) | 1320a-7(b)(15) | Individuals controlling a sanctioned entity. Minimum Period: Same as length of entity's exclusion. |
| 1128(b)(16) | 1320a-7(b)(16) | Making false statement or misrepresentations of material fact. Minimum period: None. |
| 1156 | 1320c-5 | Failure to meet statutory obligations of practitioners and providers to provide medically necessary services meeting professionally recognized standards of health care (Quality Improvement Organization (QIO) findings). Minimum Period: 1 year |
Note: except those imposed under section 1128(b)(7) (42 USC 1320a-7b(b)(7)), and those imposed on rural physicians under section 1156 (42 USC 1320C-5), all exclusions are effective prior to a hearing.