The 33,455 Exclusions That Start With a License Board

On September 6, 1984, HHS published a delegation of authority that parked the fraud and abuse sections of the Social Security Act with the Inspector General and left them there. The March 14, 2011 delegation superseded it and kept the arrangement in a single sentence, filed under Section F.50, Limitations of Authority, subsection (1)(c):

"The authorities under Sections 1128, 1128A, 1128B, 1128D, 1128E(b)(6), 1140, 1156(b), and 1160(b) of the Act for controlling fraud and abuse in healthcare programs shall be exercised by the Office of Inspector General."

Eight statutory sections, one agency, forty-two years.

On Wednesday that sentence got revised. The vehicle was a one-page notice at 91 FR 65219, signed by the Secretary, with no docket number, no comment period, and no effective date other than the words "effective immediately."

What Came Out of the Sentence

Exactly one subsection. The notice delegates to the CMS Administrator "the authorities vested in the Secretary of Health and Human Services under section 1128(b) of the Social Security Act," and says CMS asked for it: "CMS requested that the permissive exclusion authority under Section 1128(b) of the SSA be formally delegated to the CMS Administrator."

Everything else in the 2011 sentence stayed where it was. Mandatory exclusions under 1128(a), civil money penalties under 1128A, the criminal provisions at 1128B, the data bank authority at 1128E(b)(6), and the peer review provisions at 1156(b) and 1160(b) are all still the Inspector General's alone.

Two further carve-outs sit in the same paragraph. "Excluded from this delegation is the authority to conduct hearings and to issue regulations."

And OIG keeps what it had.

The notice says the delegation "does not affect or diminish" the Secretary's 1988 delegation to the Inspector General, which makes this a concurrent authority rather than a transfer. Two agencies can now reach the same statute.

Worth noting what the document does not do, because the July 21 press conference that announced this change was read more broadly at the time. Law firms were still writing in mid-September that nothing had issued, and they were right: Wednesday's notice is the only HHS Statement of Delegation of Authority naming CMS and section 1128(b) in the Federal Register, 85 days after the announcement. The thing that finally arrived is narrower than the thing that was described.