On February 5, 2014, the OMB received two proposed rules from the Department of Health and Human Services Office of the Inspector General (OIG). One proposed rule would, among other things, update OIG’s regulations to reflect the Affordable Care Act (ACA)’s significant expansion of OIG’s authority to protect Federal health care programs from fraud and abuse through its exclusion authority.
The second proposed rule would make changes to the Civil Monetary Penalties (CMP) regulations at 42 C.F.R. § 1003 to implement certain provisions of the ACA and other statutes. The ACA provides for CMPs, assessments, and exclusion for: failure to grant timely access to OIG; ordering or prescribing while excluded; making false statements, omissions or misrepresentations in an enrollment application; failure to return an overpayment; and making or using a false record or statement that is material to a false or fraudulent claim. These statutory changes are reflected in the proposed regulations. The OIG also proposes an alternate methodology for calculating penalties and assessments for employing excluded individuals in positions in which the individuals do not directly bill the Federal health care programs for furnishing items or services. In addition, the proposed rules would clarify the liability guidelines under OIG authorities, including the Civil Monetary Penalties Law, the Emergency Medical Treatment and Labor Act; section 1140 of the Social Security Act for conduct involving electronic mail, Internet and telemarketing solicitations; and section 1927 of the Social Security Act for late or incomplete reporting of drug-pricing information.