The latest OIG Advisory Opinion, issued February 9, 2015, addresses the issue of sharing federal health care program payments with an excluded practitioner.   While federal statutes prohibit payment by any federal health care program, including Medicare or Medicaid, for items or services furnished by an excluded person or furnished at the medical direction or on the prescription of an excluded person, OIG Advisory Opinion 15-02 analyzed whether an excluded individual could receive federal program payments for services performed prior to the effective date of exclusion.

The requestor in the latest opinion was a practitioner who was excluded from Federal health care program participation for 20 years following a criminal plea and civil False Claims Act settlement. Prior to the effective date of exclusion, the practitioner and his/her practice had performed services and submitted claims for such services to Federal health care programs (“Services”). The question posed by the requestor was whether the payments for the Services that were made after the exclusion date could be remitted to the excluded practitioner.

The OIG began its analysis with a review of the federal statutes that prohibit Federal health care program payments to excluded individual. Acknowledging that the payment prohibition applies only to items and services that are rendered on or after the effective date of exclusion, the OIG concluded that the payment from a Federal health care program for the Services would not be in violation of the Federal prohibition and would not serve a grounds for the imposition of administrative sanctions under the civil monetary penalties statute.

As with all advisory opinions, the OIG noted that the opinion was limited to the specific facts set forth by the requestor. The opinion does not alter the fact that excluded individuals would be subject to civil monetary penalty liability for any claim the excluded individual submits, or causes to be submitted, during the period of exclusion.