Several anticipated revisions to three health care fraud and abuse rules were recently included in the White House Office of Management and Budget’s Unified Agenda of Regulatory and Deregulatory Actions. If finalized as expected in the spring of 2016, these rules will have a significant impact on government health care fraud investigations. 

Among the revisions is a final rule authorizing CMS to impose civil monetary penalties against persons and entities who fail to grant timely access to OIG; order and prescribe while excluded; make false statements, omissions, or misrepresentations in enrollment applications; fail to return overpayments; or make or use false records or statements that are material to false or fraudulent claims for payment. 

Another final rule expands OIG’s exclusion authority, allowing it to exclude any provider who fails to furnish payment information to Medicare or any state health care program; makes any false statement, omission, or misrepresentation on a provider application; or is convicted of an offense in connection with the obstruction of an audit. The rule also codifies OIG’s authority to issue testimonial subpoenas in exclusion investigations, and modifies the reinstatement rules for individuals excluded as a result of having had their licenses revoked. 

Finally, a third revision to the rules adds new safe harbors to the anti-kickback statute that are designed to protect certain payment practices and business arrangements from criminal prosecution and civil sanctions. This rule also adopts the Affordable Care Act’s revised definition of “remuneration” and adds a gain-sharing provision to existing Civil Monetary Penalty Law regulations.