[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: 42CFR1001.201]



[Page 1125-1126]

 

                         TITLE 42--PUBLIC HEALTH

 

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

 

PART 1001_PROGRAM INTEGRITY_MEDICARE AND STATE HEALTH CARE PROGRAMS--

 

                     Subpart C_Permissive Exclusions

 

Sec.  1001.201  Conviction relating to program or health care fraud.





    (a) Circumstance for exclusion. The OIG may exclude an individual or 

entity convicted under Federal or State law of--

    (1) A misdemeanor relating to fraud, theft, embezzlement, breach of 

fiduciary responsibility, or other financial misconduct--



[[Page 1126]]



    (i) In connection with the delivery of any health care item or 

service, including the performance of management or administrative 

services relating to the delivery of such items or services, or

    (ii) With respect to any act or omission in a health care program, 

other than Medicare and a State health care program, operated by, or 

financed in whole or in part by, any Federal, State or local government 

agency; or

    (2) Fraud, theft, embezzlement, breach of fiduciary responsibility, 

or other financial misconduct with respect to any act or omission in a 

program, other than a health care program, operated by or financed in 

whole or in part by any Federal, State or local government agency.

    (b) Length of exclusion. (1) An exclusion imposed in accordance with 

this section will be for a period of 3 years, unless aggravating or 

mitigating factors listed in paragraphs (b)(2) and (b)(3) of this 

section form a basis for lengthening or shortening that period.

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

and a basis for lengthening the period of exclusion--

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

caused, or reasonably could have been expected to cause, a financial 

loss of $5,000 or more to a Government program or to one or more other 

entities, or had a significant financial impact on program beneficiaries 

or other individuals. (The total amount of financial loss will be 

considered, including any amounts resulting from similar acts not 

adjudicated, regardless of whether full or partial restitution has been 

made);

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

committed over a period of one year or more;

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

a significant adverse physical or mental impact on one or more program 

beneficiaries or other individuals;

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

    (v) Whether the individual or entity has a documented history of 

criminal, civil or administrative wrongdoing; or

    (vi) 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 the imposition of 

the exclusion.

    (3) Only the following factors may be considered as mitigating and a 

basis for reducing the period of exclusion--

    (i) The individual or entity was convicted of 3 or fewer offenses, 

and the entire amount of financial loss (both actual loss and reasonably 

expected loss) to a Government program or to other individuals or 

entities due to the acts that resulted in the conviction and similar 

acts is less than $1,500;

    (ii) 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;

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

officials resulted in--

    (A) Others being convicted or excluded from Medicare, Medicaid or 

any of the other Federal health care programs, or

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

the appropriate law enforcement agency identifying program 

vulnerabilities or weaknesses, or

    (C) The imposition of a civil money penalty against others; or

    (iv) Alternative sources of the type of health care items or 

services furnished by the individual or entity are not available.



[57 FR 3330, Jan. 29, 1992, as amended at 63 FR 46687, Sept. 2, 1998; 64 

FR 39426, July 22, 1999; 67 FR 11932, Mar. 18, 2002; 67 FR 21579, May 1, 

2002]