CMS Can Now Exclude Providers From Medicaid Itself, Not Just Through OIG

A Federal Register notice on October 14 handed the CMS Administrator the Secretary's permissive exclusion authority under section 1128(b), effective immediately and alongside OIG's.

On October 14, HHS published a notice in the Federal Register (91 FR 65219) delegating to the CMS Administrator "the authorities vested in the Secretary ... under section 1128(b) of the Social Security Act": the permissive exclusion power that, until now, HHS-OIG exercised. It took effect immediately. OIG keeps its own authority, so two agencies can now exclude a provider from federal health care programs.

CMS's stated reason is that it's "uniquely positioned to investigate, identify, and develop the evidentiary basis" for exclusions. CMS is also the agency whose Medicaid ABA toolkit and program-integrity work this year have focused on ABA billing patterns.

What CMS got, and what it didn't

  • Permissive exclusions only. Mandatory exclusions under section 1128(a), such as program-related convictions, stay with OIG.
  • "Excluded from this delegation is the authority to conduct hearings and to issue regulations."
  • The power can be redelegated within CMS.
  • The Secretary also ratified "any actions taken by the Administrator ... prior to the effective date."

The grounds that matter to an ABA practice

Section 1128(b) lists the permissive grounds. Four are closest to where ABA audits have landed:

  • (b)(6): furnishing services "substantially in excess of the needs of such patients or of a quality which fails to meet professionally recognized standards of health care." This is the hours-and-medical-necessity question.
  • (b)(7): acts covered by the civil monetary penalty and anti-kickback statutes, including payments to families for enrollment or referrals.
  • (b)(4) and (b)(5): a license suspended or revoked for reasons of competence or financial integrity, or a sanction under another federal or state health program.
  • (b)(8): entities where a 5%-or-more owner, officer, director or managing employee has been convicted, assessed a penalty or excluded.

The limits

The notice sets no standards, process or priorities, and names no provider types. Sidley Austin notes that CMS "has not yet indicated its approach," and no exclusion by CMS has been reported.

What to do

  • Compliance lead, this month: screen every owner, officer, BCBA, BCaBA, RBT and billing employee against the OIG LEIE, SAM.gov and your state's Medicaid exclusion list. File the dated results, and repeat monthly. Technician turnover is where a miss usually happens.
  • Owners: check your cap table. Anyone with 5% or more who has been excluded, convicted or assessed a civil monetary penalty brings the entity within (b)(8).
  • Today: if you give families gift cards, cash or other incentives for enrolling or referring, stop. That's (b)(7) territory under either agency.