Written by Ellyn Sternfield
Sometime on August 5, 2011, the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) blinked.
In late 2010, OIG effectively warned the health care provider community that it would begin exercising its discretionary “B-15” authority to exclude individual owners, officers and managing employees of sanctioned entities from participating in federally-funded health care programs, under Section 1128(b)(15) of the Social Security Act. And in the spring of 2011, OIG acted on that warning: formally notifying Howard Solomon, the CEO of Forest Labs, that it was moving to personally exclude him, based on a 2010 civil and criminal settlement involving a Forest Labs subsidiary.
But B-15 exclusion is not automatic; the individual may provide information as to why the exclusion should not proceed. Solomon publicly announced his intent to fight OIG on the exclusion. Whatever information he provided did the trick, and on August 5th, OIG notified Solomon that it was not proceeding further with the attempt to exclude him. OIG has yet to publicly comment on the reasons it withdrew from this fight.
But withdrawal does not equate to surrender. Indeed, on August 9th, OIG announced it was seeking to hire an experienced health care attorney to join the OIG’s Administrative and Civil Remedies Branch as the “Associate Reviewing Official”, charged with implementing OIG's authority to exclude individuals and entities from participation in federal health care programs. While Solomon is no longer at risk, it appears OIG may be attempting to rearm to fight another day. So the threat of individual owner, officer or manager exclusions ensuing from corporate health care settlements remains a reality.