The Office of the Inspector General (“OIG”) of the U.S. Department of Health and Human Services (“HHS”) is soliciting comments, recommendations, and other suggestions on the non-binding criteria used by OIG in assessing whether to impose a permissive exclusion, which were first published in 1997 (https://oig.hhs.gov/authorities/docs/2014/2014-16222.pdf).  The OIG’s permissive exclusion criteria currently are organized into four general categories, including: (1) the circumstances and seriousness of the underlying misconduct; (2) the defendant’s response to the allegations or determination of wrongdoing; (3) the likelihood of a future violation; and (4) the defendant’s financial ability to provide quality health care services.  Over the last two decades, OIG has used these criteria to evaluate whether to impose a permissive exclusion or release this authority in exchange for the execution of an Integrity Agreement with OIG.

In support of its decision to consider revising the criteria, OIG indicated that “updated guidance could better reflect the state of the health care industry today.”  OIG also noted that issues currently under consideration include, but are not limited to: (1) whether there should be differences in the criteria for individuals and entities, and (2) whether and how to consider a defendant’s existing compliance program.

We encourage all interested parties to weigh on in the existing criteria, which can be found here (https://oig.hhs.gov/exclusions/files/criteria_b7.pdf.).  Comments are due by September 9, 2014.