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January 18, 2017

Here's what could get your doctors kicked out of Medicare and Medicaid

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HHS on Thursday published a final rule that will update exclusion authorities for the agency's Office of Inspector General (OIG).

HHS issued the final rule under the Affordable Care Act (ACA), which initially expanded OIG's exclusion powers. The final rule further clarifies and updates those powers.

The final rule will allow OIG to exclude from Medicare and Medicaid health care providers who impede federal audits or do not promptly provide investigators with access to requested records.

In addition, the final rule will allow OIG to exclude a provider from Medicare or Medicaid if a provider is convicted of illicitly prescribing or distributing controlled substances or failing to provide payment information to OIG. Under the final rule, OIG also will be permitted to exclude health care organizations from Medicare or Medicaid if they have direct or indirect ownership relations with individuals convicted of such offenses.

Under the final rule, OIG's may only pursue exclusions for up to 10 years after the date when the act that warranted a provider's exclusion occurred.

The final rule also includes ways for excluded providers to seek early reinstatement in Medicare and Medicaid. The final rule stated that OIG would consider "numerous" factors when weighing whether to grant early reinstatement.

The final rule is scheduled to take effect Feb. 13.

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According to FierceHealthcare, the final rule could pressure providers to cooperate with federal investigations.

Further, Elizabeth Carder-Thompson, a health care attorney at Reed Smith, said she expects OIG will increase use of its exclusion authority for providers and suppliers.

However, Judith Waltz, a health care attorney with Foley & Lardner, said OIG's expanded exclusion authority could be curbed if the ACA is repealed (Minemyer, FierceHealthcare, 1/16; Swann, Bloomberg BNA, 1/12; HHS final rule, Federal Register, 1/12).

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