[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: 42CFR1001.951]



[Page 1132]

 

                         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.  1001.951  Fraud and kickbacks and other prohibited activities.



    (a) Circumstance for exclusion. (1) Except as provided for in 

paragraph (a)(2)(ii) of this section, the OIG may exclude any individual 

or entity that it determines has committed an act described in section 

1128B(b) of the Act.

    (2) With respect to acts described in section 1128B of the Act, the 

OIG--

    (i) May exclude any individual or entity that it determines has 

knowingly and willfully solicited, received, offered or paid any 

remuneration in the manner and for the purposes described therein, 

irrespective of whether the individual or entity may be able to prove 

that the remuneration was also intended for some other purpose; and

    (ii) Will not exclude any individual or entity if that individual or 

entity can prove that the remuneration that is the subject of the 

exclusion is exempted from serving as the basis for an exclusion.

    (b) Length of exclusion. (1) The following factors will be 

considered in determining the length of exclusion in accordance with 

this section--

    (i) The nature and circumstances of the acts and other similar acts;

    (ii) The nature and extent of any adverse physical, mental, 

financial or other impact the conduct had on program beneficiaries or 

other individuals or the Medicare, Medicaid and all other Federal health 

care programs;

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

criminal, civil or administrative wrongdoing (The lack of any prior 

record is to be considered neutral);

    (iv) The individual or entity 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; or

    (v) Any other facts bearing on the nature and seriousness of the 

individual's or entity's misconduct.

    (2) It will be considered a mitigating factor if--

    (i) The individual had a documented mental, emotional, or physical 

condition before or during the commission of the prohibited act(s) that 

reduced the individual's culpability for the acts in question;

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

officials resulted in the--

    (A) Sanctioning of other individuals or entities, or

    (B) Imposition of a civil money penalty against others; or

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

services provided by the individual or entity are not available.



[57 FR 3330, Jan. 29, 1992, as amended at 63 FR 46689, Sept. 2, 1998; 67 

FR 11933, Mar. 18, 2002]