​​​​​​​Final rule may make it easier for OIG to exclude docs from Medicare, Medicaid

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The Department of Health and Human Services published a final rule expanding the Office of Inspector General's power to issue Medicare and Medicaid exclusions to providers.

Physicians who hinder federal audits or who fail to offer investigators quick access to medical records may be more likely to be excluded from Medicare and Medicaid under a new federal rule.

The final rule (PDF), published late last week in the Federal Register, includes several updates to the Department of Health and Human Services Office of Inspector General’s exclusion authorities. The move will likely pressure providers to cooperate in federal audits or investigations. 

Judith Waltz, a healthcare attorney with San Francisco-based Foley & Lardner LLP, told Bloomberg BNA that the rule will almost certainly change physician behavior in the face of the exclusion risk. “I think these provisions reflect the government's current approach to just get rid of providers they find untrustworthy,” Waltz told the publication.

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The final rule does limit the OIG’s ability to pursue exclusions to a 10-year window. That is designed to ease administrative burdens on Medicare and Medicaid providers and align with the fact that courts tend to favor having an enumerated period in place, while still allowing for necessary exclusions. The limit would also reduce the likelihood that the OIG would pursue an exclusion while a provider is on trial for a False Claims Act case.

The rule also offers early reinstatement options for providers under an exclusion, in which the OIG would consider "numerous" factors before potentially ending the exclusion early. The specific factors were not explicitly listed in the rule.

Waltz told Bloomberg BNA that the exclusion expansion could be rolled back as part of efforts to repeal the Affordable Care Act, as the healthcare law is the underlying authority for the rule’s provisions. The House of Representatives and Senate have both passed budget resolutions that would dismantle key parts of the law, which paves the way for a quick repeal of many of its major tenets.

The OIG updated its exclusion guidelines (PDF) in April, with an emphasis on self-reporting potential violations. When deciding if a provider is at risk for noncompliance, the OIG considers a number of factors including prior conduct and if the provider adequately cooperated during an investigation. In late 2015, the OIG reported that civil monetary penalties and exclusion cases are on the rise, with 110 resolved between October 2014 and October 2015.

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