Equal Opportunity Exclusion from Federal Health Care Programs

On October 25, 2013, the U.S. Department of Health & Human Services Office of Inspector General (“OIG”) updated its “Frequently Asked Questions” webpage regarding exclusions from federal health care programs to address the implications of United States v. Windsor (570 U.S. __, 113 S. Ct. 2675 (2013)).  By way of background, on June 26, 2013, the U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (which defined “marriage” as “only a legal union between one man and one woman…”) was unconstitutional.  The OIG’s updated “FAQ” clarifies that, as of the date of the Windsor decision, “same-sex spouses and family members that result from same-sex marriages meet the definition of ‘immediate family member’ if the state or other jurisdiction, whether foreign or domestic, where the couple was married recognizes the marriage under its laws, or if the state(s) or other jurisdiction(s) where the couple lives recognizes the marriage as a legally valid marriage.”  Practically speaking, this means that the OIG may now exercise its permissive exclusion authority under Section 1128(b)(8) of the Social Security Act (“SSA”) to exclude from federal health care programs an entity that would have been controlled by an individual excluded from federal or state health care programs, or sanctioned under SSA §§ 1128A or 1129, but for such individual’s transfer of control or ownership interest to their same-sex spouse. According to the OIG: “Any transfer of ownership or control interest in anticipation of or following a person’s conviction, assessment, or exclusion (as described in section 1128(b)(8)(A)(iii) of the SSA) that is made on or after June 26, 2013 is subject to this policy.”

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Filed under DHHS OIG, Government Enforcement

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