42 U.S.C. 1320a-7: The OIG and “mandatory” vs. “permissive” exclusion
In a prior post, I discussed the difference between “mandatory” and “permissive” exclusion under 42 U.S.C. 1320a-7, which allows, and sometimes requires, the Office of the Inspector General (OIG) to exclude physicians, pharmacists and nurses from employments that receive federal funding which is, unfortunately, most healthcare employments. I also suggested that one strategy to avoid mandatory exclusion is for you and your lawyer to carefully consider plea and sentencing options, to avoid the type of conviction that will trigger mandatory exclusion in the first place, a point I will emphasize here.
Never forget that mandatory exclusion applies whenever there has been any one of the following: (1) a conviction of a program-related crime; (2) a conviction relating to patient abuse; (3) a felony conviction relating to health care fraud; or a (4) felony conviction relating to a controlled substance. See 42 U.S.C. 1320a-7(a) (1)-(4). If any one of these convictions is present, and absent a few truly extraordinary circumstances, exclusion is mandatory for the proscribed period of time, often five years, but in some cases ten years, or permanently. Consequently, if you are facing the risk of exclusion, permissive exclusion is preferable over mandatory exclusion because, with permissive exclusion, the periods of exclusion are shorter, and the OIG has discretion over whether, and how long, to exclude you. Indeed, in one recent case involving an Oregon pharmacist, I persuaded the OIG to forego permissive exclusion altogether.
Carefully consider your plea options to avoid mandatory exclusion by the OIG under 42 U.S.C. 1320a-7
If your case lends itself to plea negotiations, in order to avoid mandatory exclusion, you and your lawyer will want to avoid agreements to plead to (1) program-related crimes or (2) patient abuse, and, if you agree to plead guilty to (3) health care fraud or (4) a crime relating to a controlled substance, you will want the plea agreement to include an understanding that the conviction should be a misdemeanor conviction, not a felony conviction. These plea agreements can become tricky in a hurry because your lawyer will need to persuade both the prosecutor and the court to accept misdemeanor convictions. Each case is different, presenting unique mitigating factors to present the court in favor of misdemeanor convictions (versus felony convictions), but perhaps one point worth stressing is that a mandatory, five-year period of exclusion, is likely a career-ending event which, in some cases, will be more punishment than the sentencing court intends.