The Administrative Process of Imposing an OIG Exclusion
I. Mandatory OIG Exclusions
When the Office of Inspector General (OIG) considers imposing a mandatory exclusion, it sends the individual or entity a Notice of Intent to Exclude.[1] The Notice includes the reason for the proposed exclusion and the possible effect of an exclusion. It also gives the individual or entity 30 days to respond in writing with information and evidence that he or she wants the OIG to consider in making its final decision.
The OIG will almost always decide to impose a mandatory exclusion. The individual or entity is then sent a Notice of Exclusion that includes his or her appeal rights. The exclusion goes into effect 20 days after the Notice of Exclusion is mailed and notice to the public is provided on the OIG website.
The OIG’s decision to exclude can be appealed to an U.S. Department of Health and Human Services (HHS) Administrative Law Judge (ALJ). Adverse decisions by an ALJ can then be appealed to the HHS Departmental Appeals Board (DAB). Individuals may also seek judicial review of any final decision by the DAB.
II. Imposing OIG Exclusions
There are actually four different administrative processes for permissive exclusions and all of them differ from the process detailed above. As described below, the process utilized for permissive exclusions is dependent on the reason for the exclusion.
OIG may consider imposing a permissive exclusion for submitting claims for excessive charges, unnecessary services, services which fail to meet professionally recognized standards of health care, or the failure of an HMO to furnish medically necessary services.[2] The person or entity to be excluded has a right to request an opportunity to present oral argument to an OIG official before a decision may be reached. The request must be made after the individual or entity receives the Notice of Intent to Exclude, and as an addition to the right to submit evidence in writing.
OIG is not required to send the individual or entity a Notice of Intent to Exclude if it considers imposing a permissive exclusion for the failure to grant immediate access,[3] or for the failure to take corrective action.[4] Instead, OIG will send a Notice of Exclusion that includes information about the right to appeal. The exclusion becomes effective 20 days after the Notice of Exclusion is mailed and notice is provided to the public on OIG’s website. Importantly, the same appeals process that applies to mandatory OIG exclusions also applies to permissive exclusions.
III. Conclusion
Finally, if OIG is considering excluding a person or entity for fraud, kickbacks or other prohibited activity,[5] OIG will again initiate the process by sending a Notice of Proposal to Exclude. This notice will include information about the basis for the proposed exclusion, the length of the exclusion period, the factors OIG considered when setting the exclusion period, the effect of the exclusion, appeal rights, and reinstatement information. In this situation, the exclusion goes into effect 60 days after the individual or entity receives the Notice of Proposal to Exclude, unless the individual or entity enters a timely request for a hearing. If there is a request for a hearing, the exclusion will not be effective until an ALJ upholds OIG’s decision to exclude. Adverse decisions by an ALJ may be appealed to the DAB and judicial review is available after the DAB enters a final decision.
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Ashley Hudson, Associate Attorney at Liles Parker, LLP and former Chief Operating Officer for Exclusion Screening, LLC, is the author of this article. Feel free to contact us at 1-800-294-0952 or online for a free consultation.
[1] Dep’t of Health and Human Servs. Office of the Inspector Gen., Exclusions FAQ, https://oig.hhs.gov/faqs/exclusions-faq.asp (last accessed November 26, 2014).
[2] Section 1128(b)(6) of the Social Security Act.
[3] § 1128(b)(12).
[4] § 1128(b)(13).
[5] § 1128(b)(7).