OIG Issues Advisory Opinion on Exclusions
I. Advisory Opinion on Payments for Services Provided Prior to Exclusion
The Department of Health and Human Services Office of the Inspector General (OIG) issued an advisory opinion in response to payments received by an excluded provider for services performed prior to the effective date of his or her exclusion.
The individual entered a criminal plea and a civil settlement to resolve various False Claims Act health care fraud allegations. As a result, the individual was excluded from participation in the Federal health care programs for twenty years. The individual was also required to sell his or her Practice to an unnamed Buyer. The sale took place on October 31, 2013.
Before the individual was excluded, the individual and his or her practice performed services and submitted claims for these services to the Federal health care programs. However, the Federal health care programs made payments for these services after the individual’s exclusion date. The Buyer was in control of the Practice’s bank account at the time the payments were received. Under an agreement, the Buyer paid the monies received from the Federal health care programs to the excluded individual for the services.
II. Exception to the Rule
Under Section 1128 of the Social Security Act, payment may not be made by any Federal health care program for any items or services furnished directly or indirectly by an excluded individual. In this specific case, OIG distinguished the individual’s situation because the services were provided before the effective date of the exclusion. Therefore, receiving payment from the Buyer for these services after the exclusion date did not violate the terms of the individual’s exclusion and would not give rise to additional administrative sanctions.
Providers are reminded that this OIG Advisory Opinion may not be relied on by any one other than the requestor. Furthermore, the opinion is strictly limited to the exact facts presented by the requestor.
Ashley Hudson, Associate Attorney at Liles Parker, LLP and former Chief Operating Officer for Exclusion Screening, LLC, is the author of this article. Contact the exclusion experts at Exclusion Screening, LLCSM today for a free consultation by calling 1-800-294-0952 or online.
 OIG Advisory Opinion No. 15-02, Dep’t of Health & Human Servs. Office of Inspector General (Feb. 13. 2015).