[Code of Federal Regulations]

[Title 42, Volume 4]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR1001.102]



[Page 1124-1125]

 

                         TITLE 42--PUBLIC HEALTH

 

      GENERAL--HEALTH CARE, DEPARTMENT OF HEALTH AND HUMAN SERVICES

 

PART 1001_PROGRAM INTEGRITY_MEDICARE AND STATE HEALTH CARE PROGRAMS--

 

                     Subpart B_Mandatory Exclusions

 

Sec.  1001.102  Length of exclusion.



    (a) No exclusion imposed in accordance with Sec.  1001.101 will be 

for less than 5 years.

    (b) Any of the following factors may be considered to be aggravating 

and a basis for lengthening the period of exclusion--

    (1) The acts resulting in the conviction, or similar acts, that 

caused, or were intended to cause, a financial loss to a Government 

program or to one or more entities of $5,000 or more. (The entire amount 

of financial loss to such programs or entities, including any amounts 

resulting from similar acts



[[Page 1125]]



not adjudicated, will be considered regardless of whether full or 

partial restitution has been made);

    (2) The acts that resulted in the conviction, or similar acts, were 

committed over a period of one year or more;

    (3) The acts that resulted in the conviction, or similar acts, had a 

significant adverse physical, mental or financial impact on one or more 

program beneficiaries or other individuals;

    (4) In convictions involving patient abuse or neglect, the action 

that resulted in the conviction was premeditated, was part of a 

continuing pattern of behavior, or consisted of non-consensual sexual 

acts;

    (5) The sentence imposed by the court included incarceration;

    (6) The convicted individual or entity has a prior criminal, civil 

or administrative sanction record;

    (7) The individual or entity has at any time been overpaid a total 

of $1,500 or more by Medicare, Medicaid or any other Federal health care 

programs as a result of intentional improper billings;

    (8) The individual or entity has previously been convicted of a 

criminal offense involving the same or similar circumstances; or

    (9) Whether the individual or entity was convicted of other offenses 

besides those which formed the basis for the exclusion, or has been the 

subject of any other adverse action by any Federal, State or local 

government agency or board, if the adverse action is based on the same 

set of circumstances that serves as the basis for imposition of the 

exclusion.

    (c) Only if any of the aggravating factors set forth in paragraph 

(b) of this section justifies an exclusion longer than 5 years, may 

mitigating factors be considered as a basis for reducing the period of 

exclusion to no less than 5 years. Only the following factors may be 

considered mitigating--

    (1) The individual or entity was convicted of 3 or fewer misdemeanor 

offenses, and the entire amount of financial loss (both actual loss and 

intended loss) to Medicare or any other Federal, State or local 

governmental health care program due to the acts that resulted in the 

conviction, and similar acts, is less than $1,500;

    (2) The record in the criminal proceedings, including sentencing 

documents, demonstrates that the court determined that the individual 

had a mental, emotional or physical condition before or during the 

commission of the offense that reduced the individual's culpability; or

    (3) The individual's or entity's cooperation with Federal or State 

officials resulted in--

    (i) Others being convicted or excluded from Medicare, Medicaid and 

all other Federal health care programs,

    (ii) Additional cases being investigated or reports being issued by 

the appropriate law enforcement agency identifying program 

vulnerabilities or weaknesses, or

    (iii) The imposition against anyone of a civil money penalty or 

assessment under part 1003 of this chapter.

    (d) In the case of an exclusion under this subpart, based on a 

conviction occurring on or after August 5, 1997, an exclusion will be--

    (1) For not less than 10 years if the individual has been convicted 

on one other occasion of one or more offenses for which an exclusion may 

be effected under section 1128(a) of the Act (The aggravating and 

mitigating factors in paragraphs (b) and (c) of this section can be used 

to impose a period of time in excess of the 10-year mandatory 

exclusion); or

    (2) Permanent if the individual has been convicted on two or more 

other occasions of one or more offenses for which an exclusion may be 

effected under section 1128(a) of the Act.



[57 FR 3330, Jan. 29, 1992, as amended at 63 FR 46686, Sept. 2, 1998; 63 

FR 57918, Oct. 29, 1998; 64 FR 39426, July 22, 1999; 67 FR 11932, Mar. 

18, 2002]