May 19, 2014

OIG-HHS Proposes to Implement Expansive Changes to its Civil Monetary Penalties and Exclusion Enforcement Authorities

Arnold & Porter Advisory

Recently, the Office of Inspector General for the U.S. Department of Health and Human Services (OIG-HHS) announced proposed changes to its permissive exclusion and civil monetary penalty (CMP) authorities. OIG-HHS previously released a Special Advisory Bulletin in 2013 to complement these proposed changes, reemphasizing OIG-HHS's prior views on exclusion and CMPs, underscoring the need for regulated entities to conduct diligence on potential business partners, and screening for excluded individuals or entities. The proposed rules are primarily intended to implement key enforcement-related changes made to the Social Security Act by the Affordable Care Act (ACA). Chief among OIG-HHS's proposals are: (1) implementation of increased enforcement powers under ACA, including new exclusion and CMP authorities; (2) implementation of new subpoena authorities to investigate healthcare fraud violations; (3) revival of a 2002 proposal that affirmative exclusions under 1128(b)(7) are not subject to any statutes of limitation; (4) expansion and clarification of existing Emergency Medical Treatment & Labor Act-related penalties; (5) clarification of aggravating and mitigating factors with regard to exclusion and CMPs; and (6) tying the length of exclusion periods of former owners/controllers to that of their excluded firms. Comments on the proposed Exclusion Rule are due by July 8, 2014, and comments on the proposed CMP Rule are due by July 11, 2014.

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