OIG Proposes New Civil Monetary Penalty Rules

May 19, 2014

On May 12, 2014, the Office of Inspector General (OIG) published a proposed rule that would amend the civil monetary penalty (CMP) rules of the OIG to incorporate new CMP authorities, clarify existing authorities, and reorganize regulations on civil money penalties, assessments, and exclusions.

The proposed regulations are intended by the OIG to update regulations to codify the changes made by the Affordable Care Act of 2010 (ACA). The ACA significantly expanded the OIG’s authority over health care fraud and abuse in federal health care programs. The proposed regulations effectuate and define the OIG’s expanded fraud and abuse authorities covering the following:

  • Failure to grant OIG timely access to records;
  • Ordering or prescribing while excluded;
  • Making false statements, omissions, or misrepresentations in an enrollment application;
  • Failure to report and return an overpayment; and
  • Making or using a false record or statement that is material to a false or fraudulent claim.

In addition, the OIG proposes new regulations that define the method for calculating overpayments that are made where a provider employs an excluded party. There is currently some degree of uncertainty on how a provider should calculate an overpayment when the excluded party is not a “directly billing” provider. The OIG proposal would be consistent with the “cost of employment” method that is suggested in the Revised Self Disclosure Protocol that was released by the OIG on April 17, 2013.

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