Once the Department of Health and Human Services, Office of the Inspector General decides to exclude a physician or nurse from participation in the Medicare and Medicaid programs, that health care professional’s career and employment options grow considerably narrower. For a physician in an institutional setting that accepts patients from these programs, this will likely render them unemployable. Exclusion can easily cause a similar mortal blow to a laboriously-built private practice. Nurses will likewise find their options for employment in the health care field considerably shrink if not disappear.
Fortunately for physicians, and at least in theory nurses, they may be able to obtain an exclusion waiver as the “sole community physician” in their area. 42 C.F.R. § 402.308. The law defines sole community physician as “a physician who is the only physician who provides primary care services to Federal or State health care program beneficiaries within a defined service area.” Id. at § 1001.2(d). In broad outline, the law permits the OIG to waive a physician’s exclusion if they find that their exclusion would cause hardship to local Medicare/Medicaid beneficiaries. “Hardship” in turn can be found where that physician is the sole community physician or “the sole source of essential specialized services in the Medicare community.” Id. at § 402.308.
As an example, I am currently representing a physician from a rural area who would almost certainly be excluded if there was no waiver provision. But, this physician is the only source for at least one hundred miles in all directions for certain basic medical imaging and diagnostic studies as well as essential heart and vascular procedures. Our strategy has been to develop evidence and documentation establishing his status as a sole community physician which can then be used if and when OIG decides in favor of exclusion.
Procedurally, the way this process works is indirect. A physician cannot present their argument and evidence directly to the Office of Inspector General and ask for a waiver. The law is drawn such that only another state or federal agency can appeal for a waiver as to a particular physician. This means that the physician must make their case to the applicable agency who then, if they agree, applies for a waiver with the OIG. Typically, the OIG will accept the judgment of the waiver-seeking agency, but there is no law that says they must.
The waiver provision underlines the need for any physician facing a possible Medicare/Medicaid exclusion to speak with an experienced attorney so that they can properly weigh their options. This is an unforgiving area of the law and only the right attorney can steer a physician through the pitfalls to an outcome where they can still successfully practice medicine.