The Office of Inspector General (“OIG”) of the U.S. Department of Health and Human Services recently proposed changes to its authority to exclude individuals and companies from the Medicare program. In addition to numerous “technical changes”, the OIG is proposing amending its authority to include three additional grounds for exclusion.

The three additional grounds for exclusion, which were added under the Affordable Care Act, are considered “permissive” since exclusion is not mandated. The proposed additional grounds permit exclusion for:

1. Conviction of an offense in connection with obstruction of an audit. Previously, the OIG had to rely on a conviction of obstruction of an investigation. This proposal expands the OIG’s exclusion authority to a broader set of convictions.

2. Failure to supply payment information by an individual or entity that “furnishes, orders, refers for furnishing, or certifies the need for items of services for which payment may be made”. The previous rule only permitted exclusion for individuals or entities that “furnish” items or services for which payment may be made. The proposal expands the OIG’s permissive exclusion authority to allow for exclusion related to ordering, referring, or certifying the need for certain items or services.

3. Making, or causing to be made, any false statement, omission, or misrepresentation of a material fact in applications to participate as a provider of services or supplier under a federal health care program. This is a new ground – rather than an expanded ground – for exclusion.

Healthcare entities should review their standard exclusion language to determine if the language should be updated.

The proposed rule can be found here.