“The longstanding but little-used authority of the Office of Inspector General (OIG) to exclude from participation in any federal health care program, such as Medicare, any officer or managing employee of a health related entity that has been convicted of certain legal offenses, should now be top-of-mind for all general managers, business managers, administrators and directors of today’s health care facilities,” says Patrick Formato, a partner at Abrams , Fensterman , Fensterman, Eisman, Greenberg, Formato & Einiger, LLP (Abrams Fensterman).

Reflecting on his recent participation at June’s Annual Meeting of the American Health Lawyers Association, Formato is reaching out to his clients with a stern warning: “The OIG is becoming increasingly aggressive in targeting owners, managers and boards of sanctioned health care facilities. These individuals must keep a finger on the pulse of what is going on in every phase of their organization and they must be proactive about reporting their concerns.”

Formato notes that exclusions under section 1128 (b) (15) of the Social Security Act are based upon the individual’s role or interest in a company that is excluded or is convicted of certain offenses. Individuals who have an ownership or a control interest in a sanctioned entity may be excluded if they knew or should have known of the conduct that led to the sanction. Officers and managing employees may be excluded based solely on their position within the entity.

“There is a higher standard for exclusion of an owner,” Formato points out. “The relevant statute requires evidence that the owner knew or should have known of the conduct that formed the basis for the sanction. In cases involving officers and managing employees, the statute includes a no knowledge element. The OIG therefore has the authority to exclude every officer and managing employee of a sanctioned entity.” says Formato.

“As a practical matter, the OIG does not intend to exclude all officers and managing employees,” Formato notes. “But where the evidence supports the fact that a managing employee knew or should have known of the conduct, the OIG will probably operate with a presumption in favor of exclusion.”

“Abrams Fensterman has one of the largest health care legal practices in New York state, representing approximately 125 nursing homes, a large number of medical groups and individuals in a variety of complex health care-related matters,” says Howard Fensterman, Managing Partner of Abrams Fensterman.

“Some of our clients include physicians, medical societies, ambulatory surgery centers, diagnostic and treatment centers, hospitals, imaging facilities, dentists, podiatrists, chiropractors, early intervention agencies and other health care providers,” Fensterman notes.

“This experience has led to our health care lawyers lecturing at bar associations, professional organizations, hospitals and colleges. At these meetings and through direct communications, Pat Formato and I, along with our entire senior health care-specialist team, will be underscoring what is clearly an environment of increased enforcement on the part of the OIG that is specifically related health care fraud. We want our clients to be proactive, diligent and aggressive so as to prevent legal action against their health care entities and the possibility of being sued and personally excluded from future participation in the industry,” says Fensterman.

Via EPR Network
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