Medicare Compliance & Reimbursement

HHS final rule suggests hindering the audit process may lead to exclusions.

Exclusion from federal healthcare programs like Medicare and Medicaid can greatly impact a provider’s ability to practice medicine. A recent Federal Register report suggests that OIG plans to crack down on those who obstruct its progress.

Backdown. An HHS final rule came out in the Federal Register on Jan. 12, 2017, seeking to clarify and update its process of exclusion from federal healthcare programs. Highlights include stricter penalties for obstructing audits and investigations, a 10 year-limit on the OIG in pursuing exclusions, and easier reinstatement guidelines for excluded providers. 

To take a look at the final rule, visit: https://www.federalregister.gov/documents/2017/01/12/2016-31390/health-care-programs-fraud-and-abuse-revisions-to-the-office-of-inspector-generals-exclusion.

What is an Exclusion?

The OIG has two categories of exclusions under its mandates, and though they are readily defined, much grey area exists. How the OIG discerns the severity, thecircumstances, and the content of an exclusion depends on the level of fraud, parties involved, location, and more. In a nutshell, a provider or supplier who commits fraud, while providing services or supplies under one of the federal or state health programs, and is proven guilty, can be banned from future participation in the programs. 

“The bases for exclusion can be either mandatory or permissive, meaning that the OIG is either required or may exclude the provider/supplier depending on the conduct,” explains Michael D. Bossenbroek, Esq., of Wachler & Associates, P.C. in Royal Oak, Michigan.

Here Are the 3 Takeaways from the Report

Though the HHS final rule does tighten the reins on those providers who interfere with OIG justice, some changes seek to alleviate past sanctions. Here is a look at the top three things to know from the Federal Register report: 

• Audits. If you get in the way of the audit process, it may lead to an exclusion, which is a heftier punishment than the previous rulings. “Contrary to the commenter’s characterizations, audits by governmental entities or contractors are formal in nature, similar to investigations,” the HHS final rule says. “Compliance with audit processes and requests is integral to fraud prevention and detection by payors and by law enforcement. It is appropriate for providers to devote resources to compliance with such audits.”
• 10-year limit. The OIG will now have a 10-year limit on pursuing the exclusion of a provider. “A 10-year limitations period will allow for conservation of both government and private resources in these instances,” the HHS final rule states. In addition to easing the financial burden for the provider under investigation, this section of the update also suggests that a provider being tried under the False Claims Act (FCA) won’t be investigated by the OIG for an exclusion in this time frame.
• Reinstatement. The HHS final rule mentions that one of the provisions for providers is the addition of “a process for early reinstatement where a healthcare license has been lost and has not been reinstated, which included numerous factors that OIG would consider under such a process.” The ruling did not define the criteria for the early reinstatement update.

Refresher: It must be noted that the HHS final rule extension does fall under the Affordable Care Act (ACA), which is the healthcare law that mandates exclusions. With the ACA under scrutiny by the U.S. Congress, the recent ruling may be impacted should the ACA be repealed.