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June 23, 2011

Guilt by Association: The New Normal for Federal Agency Enforcement Standards?

Imagine if you were a salesman and you were banned from selling to your largest customers for something your company did, even if you were not found guilty of any wrongdoing and had no knowledge of wrongdoing.   Or imagine if you were blacklisted from ever attending any future Redskins games at FedEx Field because you went once with a school reunion group and one of the attendees cursed at a concession stand worker.  Sound fair?

Unfortunately, a similar plight increasingly threatens today’s health care industry thanks to a formerly little-used provision the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) is exercising to bar representatives of the private health care industry from doing business with the government when their firms are responsible for misconduct.  Under this approach, the government would essentially destroy a health care representative’s ability to obtain future employment. Is this really happening, you ask?  Well, look no further than the 83-year-old executive from Forest Laboratories who HHS is essentially trying to fire, despite the absence of any charge of wrongdoing. 

While we wholeheartedly support the government’s efforts to curb health care fraud and abuse, we at the U.S. Chamber of Commerce and U.S. Chamber Institute for Legal Reform believe it is inappropriate for the government to take these draconian measures that undermine fundamental fairness and due process. That’s why today we sent a letter to OIG urging it to exercise its permissive exclusion authority to exclude officers and managing employees of “sanctioned” health care entities only upon a finding of either wrongdoing or knowledge of wrongdoing by that person. 

Government should not be in the business of deciding who a private company can or cannot hire. And it certainly should not be entering this business by pursuing a guilt-by-association standard.

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