Issue link: https://viewer.e-digitaledition.com/i/778134
DECEMBER 7, 2016, was a busy day for the Oµce of Inspector General (OIG), whose mission is to protect federal health care programs and their beneficiaries from fraud, waste, and abuse. On that day, the OIG issued final regulations that expand its authority to apply and calculate civil monetary penalties, assessments and exclusions. The OIG also published a genera l policy statement regarding gifts of nominal value to Medicare and Medicaid beneficiaries. The regulations, which became ežective on January 6, 2017, codify and implement authorities under the Ažordable Care Act. Specifically, the new regulations allow the OIG to impose civil monetary penalties against providers, including physicians, for + failing to grant the OIG timely access to records upon reasonable request during business hours; + ordering or prescribing while excluded from participating Medicare, Medicaid, or other federal health programs when the excluded provider knew — or should have known — that the item or service may be paid for by a federa l hea lth care program; + making false statements, omissions, or misrepresentations in enrollment applications to participate in a federal health care program; + failing to repor t a nd timely return overpayments; and + making or using a false record or state- ment that is material to submitting a false or fraudulent claim resulting in payment greater than the appropriate code applicable to the item or service would have rendered. In addition to expanding the OIG's authority to impose penalties, the new regulations identify certain factors upon which the OIG may rely for determining the amount of penalty, assessment, or term of exclusion. Factors include the nature and circumstances of violation, the degree of knowledge and culpability of the provider, and other aggravating circumstances or mitigating circum- stances, such as a provider's voluntarily disclosing violations to the OIG through the Self-Disclosure Protocol and taking other corrective action. The same day the OIG issued its new CMP regulations, it published a general policy statement regarding gifts a physi- cian may give to patients who are Medicare and Medicaid beneficiaries. Historically, the OIG has gone after providers who routinely waive co-pays or deductibles, or who otherwise ožer "remuneration" to any Medicare or Medicaid beneficiary that likely would influence a beneficiary to select that provider. Providers who violate this prohibition under the Social Security Act are subject to civil monetary penalties up to $10,000 for each wrongful act. R e m u n e r a t i o n g e n e r a l l y m e a n s a ny thing of va lue in cash or in kind. Notwithstanding, the OIG, in a Special Advisory Bulletin, carved out an excep- tion for inexpensive gifts of "nomina l value," which it defined to mean retail va lue of no more than $10 per item or $50 in the aggregate per patient on an annual basis. T hat wa s i n 20 02 . Now, 15 yea rs later, the OIG has updated and adjusted "nominal value" to mean $15 per item or $75 in the aggregate per patient on an annual basis. It continues to prohibit physicians from giving patients cash or cash equivalents and promises to monitor these threshold amounts. J o e F e l t e s i s a n a t t o r n e y w i t h Buckingham, Doolittle & Burroughs in Canton, OH and a member of its Health & Medicine Practice G roup. He is also the managing partner of Buckingham Canton. For more information about the law firm, go to www.bdblaw.com or e-mail Mr. Feltes at JFeltes@BDBLAW.com. ■ for the OIG BY JOSEPH J. FELTES, JD A BUSY DAY 2 2