OIG Exclusion vs. Termination


Since childhood, we learn to share and to never say “you can’t play with us.” Everyone loves to feel part of something or a group, and being excluded from a group or community can be pretty painful. As we get older, it does not get any easier. Now if the term “excluded” is tied to our professional career it takes on a whole new meaning – a very serious legal meaning.

OIG Exclusions

In the healthcare industry, exclusions have a long-lasting and ultimately a punitive measure and are imposed by the Office of Inspector General of the HHS or a state Medicaid Exclusion authority that receives federal healthcare dollars. There are many OIG exclusions, also known as OIG sanctions, but the most common way for a healthcare professional to get excluded or sanctioned is due to a license revocation or termination for certain defined disciplinary matters.

In most cases the state licensing board has a mandatory obligation to exclude or sanction a provider for a minimum of five years to a period up to indefinite for felony convictions that result from:

  • Substance Abuse
  • Patient Abuse
  • Healthcare Fraud and Abuse

However, there are permissive exclusion authority granted for misdemeanor convictions for the same and/or of defaulting on a federal student loan.

In addtion, the licensing board and exclusionary authorities also have “termination authorities” for different reasons. Providers can also request terminations (e.g., they retire or for whatever reason no longer want to treat Medicare patients).

The Differences between Termination and Exclusion –

Effectively, providers excluded by the HHS Office of Inspector General can’t work, directly or indirectly, for health care organizations because ensuring their activities do not involve any federal health care program activity is exceedingly difficult. An OIG sanction is also called an exclusion.

However, if terminated providers don’t bill Medicare directly for their services, they can still work at health care organizations in administrative functions, notes Howard Young, a former top attorney for the HHS OIG. For example, Young says, a nurse practitioner who was terminated (but not excluded) from Medicare could work in a different capacity at a hospital as long as the services are not directly billable.

Because they each have different repercussions, it is important to carefully review public records to ensure whether the employee or vendor is excluded or terminated. The website Florida Administration for Healthcare Administration is a good example of this. This site has a list of Medicaid sanctioned providers who have been terminated, but it does not have a separate exclusion dataset. Florida reports its exclusions to the OIG.

“The Sanctioned providers list contains those providers that were sanctioned or terminated while rendering services for the Medicaid program.  The Excluded providers link takes you to the U.S. Department of Health & Human Services Office of Inspector General website where you can search their database of excluded providers. Those excluded providers are individuals and entities who cannot participate in any federal or state funded health care programs.”

CMS can “terminate” providers for many additional reasons, including failure to furnish ownership information and failure to comply with civil rights requirements. Also, there are 16 bases for CMS to revoke provider billing privileges, which result in termination of the provider agreement. Among the reasons for revocation:

  • “Knowingly and willfully made, or caused to be made, any false statement or representation of a material fact for use in an application or request for payment under Medicare.”
  • “Submitted, or caused to be submitted requests for Medicare payment of amounts that substantially exceed the costs it incurred in furnishing the services for which payment is requested.”
  • “Furnished services that the OIG has determined to be substantially in excess of the needs of individuals or of a quality that fails to meet professionally recognized standards of health care.”
  • The provider or supplier is out of compliance with enrollment requirements (e.g., lacks a physical business address to render services) and hasn’t submitted a corrective action plan.
  • The provider or supplier lost its license.
  • The provider or supplier doesn’t meet CMS regulatory requirements for its specialty anymore.
  • The provider or supplier lacks a valid Social Security number or employer identification number for itself, an owner, partner, managing organization/employee, officer, director, medical director and/or authorized official.
  • The provider or supplier is excluded from Medicare and other federal health programs or debarred from government contracts, which means the provider is barred from doing business with Medicare, directly or indirectly (e.g., as a hospital employee).
  • Felonies will prompt revocation of billing numbers and thus Medicare terminations. These include felonies against people (e.g., murder, rape, assault), financial crimes (e.g., insurance fraud, embezzlement, extortion, tax evasion), felonies that put Medicare money or beneficiaries “at immediate risk,” and felonies that trigger mandatory exclusion.
  • The provider or supplier puts false or misleading information on Medicare enrollment forms but certifies it as true.
  • The provider or supplier neglects to provide complete and accurate information and supporting documentation within 30 days of being ordered by CMS to submit an enrollment application and supporting documentation.
  • The physician, non-physician practitioner, physician organization or non-physician organization fails to report to CMS changes in adverse actions and practice locations within 30 days.

Prior to a health care professional receiving a sanction, there is a due process hearing at the license or disciplinary board and the individual has an opportunity to present his/her case. Upon the issuance of a penalty, sanction or disciplinary action, such individual’s license may be restricted, revoked, suspended or other measures placed upon it. This process can take months and even years to progress.

Exclusions are a severe form of a sanction, ending with the OIG placing the individual or entity on the OIG exclusion list. This a provider will be prohibited from participating in federal health care program (CMS) dollar reimbursements. And, if you, the employer, submits a claim for and/or receive federal health care reimbursements either directly or indirectly for that individual or entity, your organization is subject to civil fines and monetary penalties. In addition, the provider can also lead to GSA/SAM debarments and/or a state(s) exclusion, too.

You might also like:
6 Steps to Ensure Vendor Compliance
Human Resource Compliance – one and the same
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Healthcare Compliance – What’s all the fuss about?

Michael Rosen, ESQ

Written by Michael Rosen, ESQ
ProviderTrust Co-Founder,

Michael brings over 20 years of experience founding and leading risk mitigation businesses, receiving numerous accolades such as: Inc Magazine’s Inc 500 Award and Nashville Chamber of Commerce Small Business of the Year
Connect with Michael on LinkedIn

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