Did you know that according to the OIG, when your exclusion is “over” not everyone is automatically “cleared” at the end of the exclusion period? Instead, the provider must apply through the OIG for reinstatement. Many times, this assumption can really hurt providers when they come to realize that they are still on the OIG exclusion list years later.

What is the OIG Process for Excluding Individuals/Entities?

The OIG’s exclusion process is governed by regulations that implement sections of the Social Security Act. Keep in mind: “When an individual or entity receives a Notice of Intent to Exclude, it does not necessarily mean they will be excluded. The OIG will carefully consider all material provided by the person who received the Notice before making a decision.”

For both mandatory and permissive exclusions, the administrative process is the same. The OIG sends out a written “Notice of Intent to Exclude” which includes the reasons for exclusion and the effects. Remember, the notice allows the individual 30 days to gather information or evidence on whether or not the exclusion is warranted. Then and only then, will the OIG make a final decision on whether or not to grant the exclusion.

If the OIG decides to proceed with the exclusion a “Notice of Exclusion”, along with the repercussions of the exclusion and appeal rights, is sent to the individual. The exclusion is effective 20 days after the notice is mailed.

How to Get Your Name Removed from the OIG Exclusion List

At the end of your OIG exclusion term, the affected provider  MUST apply for reinstatement and receive an authorized notice from the OIG stating the request was granted. Only then will you be able to participate in all Federal healthcare programs (Medicare and Medicaid).

Excluded providers may ONLY begin the process of reinstatement 90 days before the end of the excluded period. Premature requests for reinstatement will NOT be considered, so be mindful of when you can apply.  

OIG Reinstatement Steps

1. To apply for reinstatement, send a written request to the OIG at the address below:

HHS, OIG, OI

Attn: Exclusions

P.O. Box 23871

Washington, D.C. 20026

2. Upon receiving your written request, the OIG will then provide Statement and Authorization forms that you must complete, have them notarized and return.  

3.The OIG will evaluate the information on these forms and will send a written notification of the final decision on reinstatement directly to you.

The reinstatement process typically requires up to 120 days to complete, but can take longer (and has). If the OIG grants your written request for reinstatement (and provides you with a notice in writing), then you’re off the list! However, it’s always good to double-check. If the OIG denies your written request for reinstatement, you may reapply and redo the whole process after one year.

While the process of reinstatement can be long and arduous, following the established procedures in order (and at the right point in time) can effectively get your name off of the OIG exclusion list. Keep it simple by following directions, fill out the forms in their entirety, and don’t apply before 90 days prior to the end of your excluded term.

Note:  Simply obtaining a provider number from a Medicare contractor, a State agency or a Federal healthcare program does NOT reinstate eligibility to participate in those programs.    

What Effect Does an OIG Exclusion Reinstatement Have on a Seperate State Medicaid Exclusion?

None.  If a provider or entity is excluded by both a State Medicaid exclusion authority and the OIG LEIE, then he/she/it must apply for reinstatement at both separately. The State Medicaid exclusion authorities do not remove an individual from the State list just because they have been removed from the OIG LEIE. Even if the reason the OIG added the individual to the LEIE was due to the State Medicaid exclusion, the reinstatement by the OIG has no effect on the separate State Medicaid exclusion – and vice versa. 

OIG Exclusion Reinstatement Denied

Let’s look at a case where a provider applied for reinstatement but was denied, finding that he failed to raise any issue that the Administrative Law Judge could adjudicate in the hearing.  

An administrative law judge (ALJ) for the Department of Health and Human Services Departmental Appeals Board dismissed a registered nurse’s challenge to his five-year exclusion from all federally funded healthcare programs. The judge found that he failed to raise any issue that can properly be addressed in a hearing (Newland v. Inspector General, HHS Departmental Appeals Bd., Civil Remedies Div., ALJ Ruling No. 2014-28, 3/2/15).

The HHS Office of Inspector General excluded the petitioner based on his guilty plea to a criminal offense related to the delivery of an item or service under Medicare or a State healthcare program. This  included the performance of management or administrative services relating to the delivery of items or services under any such program. The petitioner did not dispute that there was a basis for the imposition of an exclusion, but objected to its effective date.

Unintended Consequences of OIG Exclusion Reinstatement

The  application for reinstatement can also lead to detection by law enforcement of former employers of the excluded person. The application for reinstatement asks where people have been working during their period of exclusion.

Thus, the OIG will discover where and for how long that excluded provider has been employed in the application for reinstatement process. If the OIG learns that it is a company that bills Medicare or Medicaid, the OIG may be inclined to pursue that employer under its CMP authority for employing an excluded individual. Also, DOJ has recently pursued billings related to excluded people under the Civil False Claims Act.

Lessons learned:

  1.  An exclusion is not always permanent
  2.  An exclusion can exist at the State and/or Federal level in multiple databases
  3.  The individual or entity is responsible for seeking reinstatement, not his/her employer
  4.  A reinstatement is not automatic upon the end of the term of exclusion
  5.  There is a timeline to meet in order to effectively have an exclusion that is eligible for reinstatement be filed, considered, and granted
  6.  Once you are off the OIG’s LEIE you may still be on the State Medicaid list; make sure to clear both

Summary:

An excluded provider or entity can apply at a certain point for reinstatement to be removed from the OIG LEIE list. However, it is not automatic and can be denied if it is prematurely requested or for other prescribed reasons.  If a provider’s exclusion term has expired, there is a defined protocol to apply for reinstatement at the OIG site.  Also remember that if the provider is excluded separately at a State exclusion authority, he/she/it must separately apply for reinstatement there. The OIG reinstatement is not the same as reinstatement by or at a State Medicaid exclusion authority.


The Anatomy Of An OIG Exclusion: Live Free Workshop

June 28, 2017 | 12:00pm CST

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Written by Michael Rosen, ESQ

ProviderTrust Co-Founder, mrosen@providertrust.com

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.

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