OIG Debarment Letters — What To Do!

by Hark and Hark | Apr 7, 2025 | Blog |

Did you receive an OIG debarment letter? Are you a nurse prosecuted because of Operation Nightingale? If you are in healthcare, you need to be able to participate in medicare and medicaid to work!

I respond on behalf of my clients to any and every the Office of Inspector General’s prospective letter seeking to exclude my clients from participation in all Federal health care programs pursuant to 42 U.S.C. § 1128B(f) and 42 C.F.R. 1001.501. The Office of Inspector General’s action arises from any state’s Board of Nursing Order suspending their license. While the statute and regulation at issue permits the exclusion of a licensee, it does not mandate an exclusion if you still possess either an LPN and RN license from another state.

Every letter sets forth my client’s case, revealing exclusion is not warranted. I always timely ask that the proposed debarment not go through. Concurrently with the request to permit continued participation in Federal health care programs, we also request reinstatement pursuant to 42 C.F.R. § 1001.501(c) if the Office of Inspector General does exclude.

Nature and Circumstances of Conduct

Adverse Impact on Individuals
Conduct that causes or had the potential to cause any adverse physical, mental, financial, or other impact to program beneficiaries, recipients, or other patients indicates higher risk
A lack of patient harm does not affect the rise
Financial Loss
Conduct that occurs as part of a pattern of wrongdoing indicates higher
Conduct that occurs over a substantial period of time indicates higher

Conduct that is continual or repeated indicates higher
Conduct that is currently ongoing or conduct that the person continued to engage in until or after the person learned of the Government’s investigation indicates higher risk.
The absence of criminal sanctions does not affect the risk

¹ In deciding whether to exclude a person or pursue alternative remedies, OIG also considers whether the person is a sole source of essential specialized items or services in a community or provides items or services for which there are no alternative or comparable sources. While these facts do not necessarily indicate that a person presents a higher or lower risk to Federal health care programs, their presence will weigh in favor of OIG pursuing remedies other than exclusion.

Leadership Role
In the case of an individual, if the individual organized, led, or planned the unlawful conduct, this indicates higher risk.
In the case of an entity, if individuals with managerial or operational control at or on behalf of the entity organized, led, or planned the unlawful activity, this indicates higher risk.
History of Prior Fraudulent Conduct
A person’s history of judgments, convictions (as defined at section 1128(i) of the Act), decisions, or settlements in prior federal or state criminal, civil, or administrative enforcement actions indicates higher risk.
If the person previously refused to enter into a CIA, this indicates higher
If the person is or was previously under a CIA, this indicates higher
If the person was previously under a CIA and breached the CIA, or lied or failed to cooperate with OIG while under a CIA, this indicates higher

Conduct During Investigation

If the person obstructed or impeded, or attempted to obstruct or impede, the investigation, audit, or internal or external reporting of the unlawful conduct, this indicates higher risk.
If the person took any steps to conceal the conduct from the Government or others, this indicates higher risk.
The inability of a person to engage in the conduct again because a contract or arrangement was terminated, or due to a change in the Federal health care program rules, does not affect the risk assessment.
Prompt response to a subpoena is expected and does not affect the risk
Failure to comply with a subpoena within a reasonable period of time indicates higher risk.
Internal Investigation
If the person initiated an internal investigation before becoming aware of the Government’s investigation to determine who was responsible for the conduct, and shared the results of the internal investigation with the government, this indicates lower risk.
If the person self-disclosed the conduct cooperatively and in good faith as a result of the internal investigation, prior to becoming aware of the Government’s investigation, this indicates lower risk.
If the person clearly demonstrates acceptance of responsibility for the conduct, this indicates lower risk.
Cooperation
If the person cooperated with or agrees to cooperate with the Government, this indicates lower risk.
If the person’s cooperation resulted in a criminal, civil, or administrative action or resolution with or against other individuals or entities, this further indicates lower risk.
Resolution
- An adverse licensure action as a result of the conduct indicates higher
- A criminal resolution indicates higher risk. For purposes of this factor, a criminal resolution includes (1) a “conviction” as defined at section 1128(i); (2) a Deferred Prosecution Agreement; or (3) a Non-Prosecution Agreement. The nature of the criminal resolution bears on the degree of higher risk.
The inability to pay an appropriate monetary amount (including damages, assessments, and penalties) to resolve a fraud case indicates higher risk.