Which Federal & State Exclusion Lists Should Be Screened?

Exclusion Lists

The complex web of regulation encompassing government health care dollars is a lot to take on. With 41 state exclusion lists and several federal lists, it can be difficult to know which exclusion lists to screen, let alone actually screening them all. Each government payor of healthcare dollars has a different set of rules on who is allowed and who isn’t allowed to bill their services. Healthcare providers are not legal experts, nor should they have to be. Rather than taking the risk of non-compliance, we break down exclusion regulations for you and explain which exclusion, sanction, debarment, or termination list you must check  as a healthcare provider.


 


What is an Exclusion?

Exclusions are a final administrative action that is intended to protect the financial integrity of health benefit programs and beneficiaries by removing individuals and entities that pose a risk to them. While a party does have right when noticed that they are about to be excluded, as a final administrative action, once excluded there is no further appeals process.

Impact of Exclusions

An exclusion is the nuclear bomb of administrative actions. As a result of an exclusion, a payment prohibition is enforced. Federal and State programs will not pay or items or services furnished, directly or indirectly, by excluded entities. In essence, the government has decided that they do not want programs to pay for the overhead or salaries of excluded parties. Therefore, to comply with exclusion regulations it is best to screen all employees, contractors, vendors and even volunteers.

Scope of the Payment Prohibition

The payment prohibition extends to anyone who has an effect on patient care. This extends to all services connected to a practice, including but not limited to:

  • Billing, Claim Processing, and Accounting Services
  • Leadership, Management, Administrative, and Strategic Services
  • Human Resource and Information Technology Services
  • Transportation Services – including drivers and dispatchers 
  • Even volunteers if their activities contribute to a bundle of services

Where are exclusions listed? How many exclusion lists are there?

Exclusion Screening recommends for best practice to screen against two Federal Exclusion lists, and 41 state lists. The primary healthcare exclusion list is the OIG/LEIE. Together with the GSA SAM, previously known as the EPLS, the LEIE and the SAM make up the two Federal Exclusion Lists. While the GSA/SAM is not a healthcare-specific list, it is a federal debarment list and any party on it cannot enter into any federal contract.

While screening these lists are best practice, there are many more exclusion lists such as the CMS Preclusion list, OFAC, SDN, among others. Depending on your organization’s payors, contracts, or state requirements you may have to screen more than our recommendation. 

Screening Obligations for Fee for Service Medicare

The Department of Health and Human Services, Office of Inspector General (OIG) maintains the List of Excluded Individuals and Entities (LEIE). This is considered the most comprehensive of all exclusion lists, with over 70,000 names on it. At a minimum, the OIG-LEIE must be checked to participate in Fee for Service Medicare.

However, checking only this list opens an entity up to risk. This is because although every state is required to send their exclusions-for-cause to the OIG, some states are slow to do so and often miss sending some parties. As a result, the OIG-LEIE is missing several excluded parties. Despite the OIG missing these parties on their list, an entity is still liable if they screen the LEIE and hire the party. For this reason, it is also important to check state-level exclusion lists. 

Screening for Medicare Advantage Providers

Medicare Advantage providers have unique screening requirements. They must screen both the OIG/LEIE and the CMS Preclusion list. Medicare Part C and Part D Plan Sponsors are unique because they are the only group of providers that must screen the Preclusion list and are the only ones to have access to the list (the Preclusion is not public).

The list differs from the OIG/LEIE because, unlike the OIG/LEIE, the Preclusion List does not require a final action for a party to be added to it. If there is a basis for revocation, such as participating in conduct that COULD result in revocation, whether or not the revocation happens, a party may be put on the preclusion list. While Medicaid Advantage Providers are the only ones to have access to the CMS Preclusion list, they may delegate screening of the list to a third-party such as Exclusion Screening. (Read more about the preclusion list here)

Screening Requirements Imposed by State Medicaid Programs

Most states have two different sets of screening requirements. The “Basic” screening requirements flows from letters issued by CMS to each state Medicaid director mandating monthly exclusion screening by Medicaid providers. This requires screening of the OIG/LEIE, the state exclusion list (if there is one), and some state have state-specific lists that must be searched (i.e. sex-offender list, elder abuse list).

Additional requirements are associated with Provider Agreement and Reenrollment forms. These contain significant disclosure and verification requirements. However, there is no consistent standard between the states. For example, as part of the Texas Medicaid participation agreement, a provider must check ALL states and federal databases and certify, under penalty of perjury, that none of their employees, contractors, and vendors are on them. While in Louisiana a provider must certify that no employee, vendor or contractor has EVER been excluded from ANY program. Although many state requirements do not explicitly say what must be screened, how could a provider give an honest answer and protect themselves from perjury without screening all exclusion lists.

A map of states with their own exclusion list (in red) can be found below.

Exclusion Lists

Medicaid Advantage Care Screening Requirements

Medicaid Managed Care Plans may not work with any of the following to provide, directly or indirectly, “the administration, management, or medical services or establishment of policies or provision of operational support for such services.”

  • Any individual or entity that is (or affiliated with a person or entity that is) debarred, suspended, or excluded from participating in procurement activities under the Federal Acquisition Requirement (FAR) or,
  • Any individual or entity that is excluded from participation in any Federal healthcare program…
To ensure that your organization is complying with the FAR regulation, it is important to screen against the GSA/SAM, as well as the OIG/LEIE and the 41 state exclusion lists. 

Enforcement Mechanisms

OIG’s Civil Money Penalties Authority for Exclusion Related Violations:

Exclusion Lists

It is important to remember that each of these Civil Money Penalties is for each offense. A provider who has worked with an excluded party can quickly rack up several offenses with each claim submitted to a health benefits program.

Failure to screen can also result in False Claims Act liability. While a provider must “knowingly” hire an excluded party to be open to False Claims Act liability, “knowingly” by statute includes reckless disregard or deliberate ignorance, such as not doing exclusion screening. 

Additional Consideration #1: Almost Every Risk Area is Directly Related to Employees or Contractors

Human capital is the heart of your practice, but also is the biggest risk in your organization. Any plan to lessen risk needs to start with ensuring that all employees and contractors are screened.

Additional Consideration #2: Screening is part of an effective compliance plan

As of 2017, the OIG has included “screening and evaluation of employees, physicians, vendors, etc.” as part of the seven elements of an effective compliance plan. The OIG views screening as an important step to mitigate risk.

Additional Consideration #3: Exclusions show up on different lists at different times. And sometimes not on lists you expect.

When states take an exclusion action they are supposed to report it to other states and the OIG so they can be added to other lists. However, it doesn’t always happen. Even the OIG/LEIE, the biggest list of them all, doesn’t have all exclusion records. It is important to remember that as public knowledge, a provider is presumed to know if any employees or contractors are on ANY of the exclusion lists. Screening only the OIG/LEIE is not enough and will not shield a practice from liability. 

Additional Consideration #4: Can Failure to Screen be Excused?

Imagine this, an accident or incident resulting in patient harm or financial loss to the practice occurs and the harm was caused by or related to an employee on one of the exclusion list. A judge or jury would have no sympathy for the practice that failed to screen. There is no excuse not to screen all State and Federal exclusion lists. 

Final Thoughts

Screening the OIG-LEIE, GSA-SAM, and the 41 State exclusion lists is not only good business practice, it is essential to protecting your organization from legal implications. At Exclusion Screening, LLC. we provide a simple, automated, and cost-effective solution to the complexity of monthly screening of over 40 exclusion lists. We use the sophisticated algorithms in our SAFER system to screen all lists, including variations of individual names, to ensure your organization complies with exclusion screening obligations.

Call 1-800-294-0952 or fill out the form below to discuss your exclusion screening needs and a free assessment.




 

California Exclusion List Screening Requirements

California Exclusion Screening Requirements

What are the California Exclusion List Screening requirements?  The Medi-Cal Program will not pay for any item or service furnished directly or indirectly by individuals or entities that have been excluded or suspended from the Medi-Cal Program or that have been placed on the Office of Inspector General’s Exclusion List.  This results in a broad “suspension” for any providers that have found themselves on this list which is enforced by the California Department of Health Care Services (DHCS). This article will discuss what an exclusion is, how providers wind up on this list, how they are impacted by these regulations and the exclusion screening obligations they impose; the risks of compliance failures; and it will suggest best practices to help providers comply with their obligations and avoid those risks and understand how to screen for exclusions in California.

I. What is a Medicaid Exclusion?

“Exclusions” are final administrative action by a State or Federal agency that bars an individual or entity from participating in one of its benefit programs. When a State forecloses participation in its Medicaid programs, that action is often referred to as a “Medicaid Exclusion.” Similarly, when the Department of Health and Human Services (HHS), Office of Inspector General (OIG) bars participation in Medicare program, that is commonly referred to as a “Medicare Exclusion.”  Medi-Cal Exclusions are posted on database maintained on the website, and Medicare Exclusions are posted on the OIG’s “List of Excluded Individuals and Entities” (LEIE) which is maintained on its website.

II. Who Gets Excluded? Why are Exclusions Imposed?

Medicaid Exclusions in California are imposed by DHCS pursuant to Medi-Cal law, Welfare and Institutions Code (W&I Code), sections 14043.6 and 14123.

 

The primary reasons for the agency to take this action are:

  • Been convicted of a felony;
  • Been convicted of a misdemeanor involving fraud, abuse of the Medi-Cal program or any patient, or otherwise substantially related to the qualifications, functions, or duties of a provider of service;
  • Been suspended from the federal Medicare or Medicaid programs for any reason;
  • Lost or surrendered a license, certificate, or approval to provide health care; or 
  • Breached a contractual agreement with the Department that explicitly specifies inclusion on this list as a consequence of the breach. [i]

Since suspensions/exclusions are designed to protect patients and the programs that serve them, it is not surprising to see that most are based on fraud, adverse license board actions, or exclusions imposed by the OIG. The chart showing the breakdown of current exclusions in California by occupation. As you can see, it is consistent with this focus as Nurses account for almost half of all current exclusions. However, when added to others who receive licenses (physicians, pharmacists, etc.) those with a license account for almost three-fourths of all exclusions in California.California Exclusion List

Exclusion Screening, LLC is proud to offer those interested in trying our product and service a no cost, no obligation TRIAL Period. Our trial is multi-faceted and is aimed to expose the client to as much of our service and product as possible in a short time. The trial starts with a FREE consultation/training that will present an overview of exclusions, a demonstration of our product and service, and a presentation of a personalized solution. The client will also receive access to our SAFER Exclusion Screening system for 14 days in addition to a sample report of up to 20 names.

III.  What is the Effect of a Medicaid Exclusion?

“Exclusions [are] one of the most important tools we have to protect beneficiaries and stem fraud and abuse [and]…ensure that Medicare, Medicaid and other federal health care programs are protected. [W]e need…to help make sure excluded individuals are not involved in any way in the care of… beneficiaries.” Inspector General June Gibbs Brown. [ii]

Medicaid Exclusions imposed by DHCS states that  “Services rendered, prescribed or ordered by a suspended Medi-Cal provider shall not be covered by the Medi-Cal program while the suspension is in effect”. This sanction is commonly referred to as a “Payment Prohibition,” and California Code, Welfare and Institutions Code – WIC § 14123 (d) (1) describes the effect of sanction as follows:

  • The suspension by the director of any provider of service shall preclude the provider from submitting claims for payment, either personally
  • or through claims submitted by any clinic, group, corporation, or other association to the Medi-Cal program for any services or supplies the provider has provided under the program, except for services or supplies provided prior to the suspension.  
  • No clinic, group, corporation, or other association which is a provider of service shall submit claims for payment to the Medi-Cal program for any services
  • or supplies provided by a person within the organization who has been suspended or revoked by the director, except for services or supplies provided prior to the suspension.

 
States also must terminate the participation of any provider that has been listed as an “excluded individual” by the OIG LEIE Database.  The requirement, contained in Section 6501 of the Affordable Care Act, is intended to strengthen Medicaid program integrity by stopping providers excluded in one State from moving to another and providing services there. Thus, stated simply, a Medicaid Exclusion in any state makes an individual radioactive when it comes to providing services in California or in any other State benefit program. 

Are you unsure your screening requirements depending on your business and location? Not 100% confident on how often you need to screen? Our FREE Consultation has you covered. It includes: An overview of exclusions in addition to an overview of your specific requirements and obligations. Furthermore a demonstration of our product and service (SAFER) will be performed prior to a presentation of your personalized solutions. This consultation is a no charge no obligation consultation for your benefit only!


IV. Provider Exclusion Screening Requirements:

Medicaid Exclusions are only effective if the payment prohibition is enforced and California seeks to achieve this goal largely by imposing extensive “exclusion screening” obligations on its Medicaid providers.  These exclusion screening requirements were outlined in a state wide letter sent by CMS to all State Medicaid Directors (SMDL #09-001) (Exhibit 1) asking States to advise providers of their obligation to:

A. Screen all Employees and Contractors

Within the letter sent by CMS, Medicaid providers were informed that they are obligated to screen all employees and contractors against the Office of the Inspector General’s Federal List of Excluded Individuals/Entities (LEIE) upon enrollment and reenrollment.

While the primary part of the Medicaid Manual does not refer to screening upon hire, there are a large number of programs that operate under the umbrella of the Medicaid Program with manuals of their own that supplement the main Provider Enrollment Manual. The manuals of at least 20 of these “programs within the program” have an appendix that states that require providers screen upon hiring and contracting, and least monthly thereafter, to ensure compliance with Federal regulations at 42 CFR 1001.1901(b) and State Medicaid Director Letter #09-001 from the Centers for Medicare & Medicaid Services (CMS).

B. Continuously Conduct Screens

Additionally, the 2009 CMS Letter asked states to require providers to:

  1. Require providers to comply with exclusion screening obligations as a condition of enrollment;
  2. Screen all employees and contractors against the Office of the Inspector General’s Federal List of Excluded Individuals/Entities (LEIE) monthly to capture any exclusions and reinstatements that have occurred since the last search;
  3. Screen the State list routinely when the provider searches the LEIE. California maintains its own State Excluded Provider List; and
  4. Immediately report to the State any exclusion information discovered.
V.Enforcement:

Excluded individuals and entities may not  “[submit] claims for payment, either personally or through claims submitted by any clinic, group, corporation, or other association to the Medi-Cal program for any services or supplies the provider has provided under the program, except for services or supplies provided prior to the suspension.  No clinic, group, corporation, or other association which is a provider of service shall submit claims for payment to the Medi-Cal program for any services or supplies provided by a person within the organization who has been suspended or revoked by the director, except for services or supplies provided prior to the suspension.”

This limitation includes assessing care, ordering or prescribing services, having a separate entity indirectly submitting claims, and being employed by a third party who then includes those costs in cost reports or some other form of payment. Violations can result in federal civil money penalty or criminal liability under § 1128A and § 1128B of the Social Security Act.

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VI. Best Practices for Complying with the California Medicaid Exclusion Screening Requirements:

Compliance with exclusion screening requirements is critical. Providers that fail to ensure the exclusion status of their owners, managers, employees, and contractors risk overpayment liability, the imposition of civil money penalties, and even possible criminal consequences.  Only proper exclusion screening can help providers mitigate or avoid these risks, and this section will suggest some practices which providers should consider including in their compliance plans. 

A. Screen all Employees, Contractors, and Vendors.

Medicaid does not pay for services furnished directly or indirectly by an excluded entity. The same rule applies to Medicare, and the payment prohibition is broadly interpreted by federal authorities to include administrators, IT support personnel – even unpaid volunteers – if any of the services they provide contribute to any reimbursements that are received. A basic rule to follow is if the individual has any access to your patients, patient facilities, patient records, or financials, then they NEED to be screened.

 

B. Owner, Officer, Manager and Director Screening.

Owners, Officers, Managers, Directors, and even shareholders MUST be screened. According to California Code WIC § 14123 (a)(2):

“If the provider of service is a clinic, group, corporation, or other association, conviction of any officer, director, or shareholder with a 10 percent or greater interest in that organization, of a crime described in paragraph (1) shall result in the suspension of that organization and the individual convicted if the director believes that suspension would be in the best interest of the Medi-Cal program.”


C. Special Rules for Billers and Coders.

Billers and third-party billing companies receive “special attention” when it comes to exclusion screening. It recognizes that providers may have to delegate their screening obligation to the billing contractor (particularly if it is a large one) and provides guidelines to be followed, however, it makes clear that the provide remains legally responsible for any overpayment liability. The OIG guidelines are found below, and providers should consider adopting some or all of them:

  • Require the biller to have (and produce) a policy of not employing excluded persons
  • Require the biller to screen its employees upon hire and monthly thereafter and maintain documentation of its screening
  • Require the biller to provide training to its employees in connection with the applicable requirements and preparation of the claims they are submitting. (Adopted from Paul Weidenfeld) 

 

D. Screening Should be Done on Hire or Contract Initiation, and Monthly Thereafter.

As previously discussed on pages 2 and 3, providers must screen upon hire and monthly thereafter. This is supported by 42 CFR 1001.1901(b) and State Medicaid Director Letter #09-001 from the Centers for Medicare & Medicaid Services (CMS).


E. Providers Should Hire a Vendor to Fulfill their Exclusion Screening Requirements.

Some providers are able to perform the “basic” screening obligation of checking the Medi-Cal California Exclusion List and the LEIE upon hire and monthly thereafter; but providers that attempt to screen all 40+ State Exclusion Lists are almost certainly going to find the task to be insurmountable. The difficulty stems from several factors: there is no uniformity in the list formats (they could be in WORD, Excel or PDF); California’s list is currently provided in PDF format and is extremely difficult to search. Each list also contains different fields on information; States have different reasons and standards for including people on their list; and some States may have little to identify the person or entity beyond a name and city. In short, as with many other necessary services, providers need specialized assistance to meet a regulatory obligation. 

There are a number of reputable exclusion screening vendors, but providers should be aware that vendors, and the services they provide, can vary significantly.  Some vendors, for example, assist in investigating whether potential matches are actual matches whereas others may not; there can be differences in the sophistication of their software and the ability to identify “potential matches” when names are similar but not a “perfect match;” and the ease of access can differ.

VIII.  Closing Comments:

The goal of this article was to help providers gain a better understanding of Medicaid Exclusions in California.  Exclusions are imposed on people and entities that pose risks to the Program and its beneficiaries, and that is why California Medicaid will not pay for any item or service furnished by them, whether directly or indirectly.  The article is also intended to help providers gain an understanding of their exclusion screening obligations and how they can fulfill them. 

Need help screening the California exclusion list? Call us at 1-800-294-0952 or fill out the form below to find out how Exclusion Screening can help!.




Article written by Cason Liles.

[i]https://files.medi-cal.ca.gov/pubsdoco/sandilanding.asp

[ii]Press Release announcing the issuance of the OIG’s “Special Advisory Bulletin on the Effects of Exclusion from Federal Health Care Programs, issued September 29, 1999.

 

Dental OIG Exclusions – A Review of 2017 Actions.

Dental OIG exclusion(January 12, 2018):  The Medicare and Medicaid programs are both essential, yet costly health benefit programs sponsored in whole or in part by the Federal government.  With Medicare and Medicaid costing $686 and $368 billion each year, respectively, the government has dedicated experienced investigators, auditors and prosecutors to ferret out incidents of health care fraud and abuse. While most health care fraud administrative, civil and / or criminal cases are brought against medical providers, dental providers and the members of their staff are increasingly finding that their actions are under scrutiny by Federal and State regulators. A prime example is illustrated by the various “dental OIG exclusion” actions taken against dentists and dentist office staff last year during 2017.[1] 

I. What is an “Exclusion” Action?

Simply put, under certain circumstances, the Department of Health and Human Services, Office of Inspector General, Office of Inspector General (HHS-OIG) is mandated by law to “exclude” individuals and entities from participating in Federally funded health care program under 1128 of the Social Security Act (SSA),[2] and from Medicare and State health care programs under section 1156 of the SSA. Under other circumstances, HHS-OIG exercises the discretionary authority to decide whether or not to exclude a party.

During 2017, HHS-OIG took a number of administrative exclusions actions against dentists and dental practice personnel in order to meet their statutory obligations.  As set out below, a brief description of the exclusion actions taken against dental professionals, along the frequency of their occurrence are described in the section below.

II.  Exclusion Actions Taken Against Dentists and Dental Staff in 2017:

With the exception of the permanent revocation of one’s professional license, there is perhaps no administrative sanction that may be taken against a health care provider that is more serious than an exclusion action.  As we will discuss later in this article, the collateral impact of an exclusion action can be financially devastating to your dental practice.  In any event, there are a number of mandatory and permissive bases upon which HHS-OIG can base an exclusion action.  Depending on the reason for exclusion, an individual or entity can be excluded from an undetermined minimum period up to a permanent exclusion from participating in Federal health benefits programs.

Dentists and dental staff members are subject to exclusion and are regularly sanctioned by HHS-OIG.  During 2017, a handful of dental professionals were placed on HHS-OIG’s exclusion list most months but the reasons for exclusion were primarily grouped into the categories for exclusion described below:

42 U.S.C. §1320a-7(b)(14): Default on health education loan or scholarship obligations.  50% of all exclusions against dentists / dental staff. The largest group of dentists and dental office personnel excluded by HHS-OIG in 2017 were sanctioned on the basis of their default of one or more Federally-secured health education loans. Approximately 53.13% of the dental professionals and staff were excluded on this basis.  This is especially noteworthy when you consider the fact that only 2.38% of the total number of health care providers and other individuals excluded by HHS-OIG in 2017 were on the basis of a similar loan default.  Although it is never a “good” thing to be excluded from participating in Federal health benefits programs, health care providers who are excluded under this this provision are eligible to apply for reinstatement as soon as they resolve they resolve their loan default with the Federal government.  In the overall exclusion scheme, this is by far the most benign of all exclusion authorities. 

42 U.S.C. § 1320a-7(a)(1): Conviction of program-related crimes. 18.75% of all exclusions against dentists / dental staff.  This mandatory exclusion provision was the second most frequent basis cited by HHS-OIG when sanctioning dentists and dental staff in 2017.  As an example, in one case, a Charleston, WV dentist admitted that he improperly engaged in upcoding with respect to at least 7,490 tooth extractions.  These extractions led to more than $1.3 million in billings. He further admitted that if those extractions were medically necessary, and if had actually performed the procedures he claimed, then he should have been paid only $599,200.  He next admitted that he submitted other false bills and improperly received payment.  As part of his plea agreement, the dentist agreed to pay $738,067 in restitution.  He also entered into a separate civil settlement agreed to be excluded from participation in the Medicare and Medicaid programs for 13 years.  Notably, across the board, among all health care providers and individuals, 42 U.S.C. § 1320a-7(a)(1) was used as a basis for excluding individuals, in 39.09% of all cases.  In contrast, it was only cited in 18.75% of the cases involving dentists and dental staff.

42 U.S.C. § 1320a-7(a)(3):  Felony conviction relating to health care fraud. 3.13% of all exclusions against dentists / dental staff.  This mandatory exclusion provision requires that HHS-OIG exclude an individual who is convicted of felony health care fraud for a minimum of 5 years.  In one 2017 case citing this basis for exclusion, a long-time claims manager in a dental practice went to the State Dental Board to complain that the dentist for whom she worked was engaging in fraud.  She alleged that he was billing Delta Health Systems[3] for dental services not rendered, performing medically-unnecessary dental services and offering cash and noncash incentives to his staff to make appointments. The claims manager was then implicated in the wrongdoing and both the dentist and the claims manager were charged with Federal crimes. The claims manager was subsequently sentenced to 21 months in prison and the dentist for whom she worked was sentenced to three years, 10 months in prison.  Both defendants were ordered to jointly pay $726,300 in restitution.  3.13% of the exclusion actions against dentists and dental staff were on the basis of 42 U.S.C. § 1320a-7(a)(3).  Similarly, 7.68% of the exclusion actions taken against all health care providers by HHS-OIG were on this basis. 

42 U.S.C. § 1320a-7(b)(4): License revocation, suspension, or surrender. 12.50% of all exclusions against dentists / dental staff.  Under this basis for permissive exclusion, HHS-OIG may choose to exclude a provider if the provider’s license is revoked, suspended or surrendered. In one 2017 case, the State of Utah alleged that the one of its licensed dentists had engaged in unprofessional conduct.  The conduct supposedly included using controlled substances from prescriptions written to family members, treating family members for opioid addiction without being trained to do so, having a conviction for impaired driving and providing false information on an application.  The dentist’s licenses were revoked, the revocations were stayed and the dentist’s licenses were placed on probation for five years. Based on the licensure actions taken, HHS-OIG exercised its permissive exclusion authority under 42 U.S.C. § 1320a-7(b)(4).  Globally, licensure-based exclusion actions constituted 30.81% of the actions taken by HHS-OIG against health care providers and other individuals during 2017.  In contrast, only 12.50% of the exclusion actions against dentists and dental staff were based an underlying licensure disciplinary action.

42 U.S.C. § 1320a-7(a)(4): Felony conviction relating to controlled substance. 6.25% of all exclusions against dentists / dental staff.  This mandatory basis for exclusion was only cited 6.25% of the time by HHS-OIG when sanctioning dentists and dental staff.  Consistent with its finding for dentists, HHS-OIG only based exclusions on this authority 5.63% of the time among all health care providers (and other individuals) during 2017.  In one of the cases we reviewed, a South Dakota dentist pleaded guilty to a charge of “Obtaining Possession of Controlled Substance by Fraud or Deception,” a Class 4 Felony.  In light of the plea, HHS-OIG was required by law to exclude the dentist from participation in Federal health benefits program for a minimum of 5 years.[4]  

Two other bases for exclusion, 42 U.S.C. § 1320a-7(b)(3): Misdemeanor conviction relating to controlled substance, and 42 U.S.C. § 1128b7:  Fraud, kickbacks, and other prohibited activities, were infrequently cited by HHS-OIG in connection with exclusion actions it took against dentists during 2017.  None of the other mandatory or permissive exclusion authorities were relied upon by HHS-OIG when sanctioning dentists and / or dental personnel during 2017.

III.  Impact of Exclusion on Dentists and Dental Staff:

Former Federal prosecutor and the current Compliance Officer for Exclusion Screening, Paul Weidenfeld, best described the impact of an exclusion action when he stated:

“If an individual is excluded from participating in Federal health benefits programs, for all practical purposes, they are likely unemployable by anyone who accepts insurance from Medicare, Medicaid, TriCare, FEHBP or another health benefit program that is funded in whole or in part by Federal funds. Moreover, each year we are seeing more and more private payors insist that their participating providers screen out any excluded employees, contractors, vendors and agents.
 
Ultimately, this is a matter of RISK.  You must screen your staff, vendors, agents and contractors every 30 days.  The last thing you want is to have a staff member with either a suspended / revoked license or a felony conviction for fraud or patient abuse working in your practice without your express knowledge.”

A. Are Your Lax Practices Exposing You to CMPs?

In 1981, Congress enacted the Civil Monetary Penalties (CMP) law, Public Law 97-35 codified at section 1128A of the Social Security Act).  Under this statute, HHS-OIG was authorized to impose CMPs against any individual or entity found to have submitted claims for payment by Medicare or Medicaid for items or services furnished by an excluded individual.  Since first being passed, there have been several additional statutes further expanding HHS-OIG’s authority to assess CMPs.  As it now stands, if a health care provider fails to properly screen to ensure that no excluded individuals are employed, virtually every claim that an excluded individual is associated with will be regarded as “tainted” and will be subject to CMPs.

B. Don’t Judge a Book by Its Cover – Screen All Applicants Before Bringing on New Hires.

Merely asking an applicant on their application if they are currently excluded from Medicare or Medicaid (or have ever been excluded from Medicare or Medicaid) is totally insufficient.  After filling out one or two applications for employment, individuals who have been excluded are savvy enough to realize that anytime they check the box “YES,” they will not even qualify for an interview.  As a result, over the last year, our Firm has handled several voluntary disclosure matters where an applicant lied about his exclusion status in order to get a job.  Six to a year later, the provider learned that the new employee was excluded and had been excluded when initially hired at the practice.  The lesson to be learned is simple – you cannot rely on any assertions made by an applicant regarding the applicant’s exclusion status.  You need to verify it yourself, prior to onboarding a new hire.

C. Exclusions are Not Restricted to Merely Licensed Professionals:

The impact of an exclusion action on a health care provider’s ability to conduct business can be significant.  Moreover, the severe consequences of exclusion have been a constant warning of HHS-OIG since it first published its Special Advisory Bulletin in 1999 entitled “The Effect of Exclusion From Participation in Federal Health Care Programs.” 
Importantly, virtually anyone can be excluded from participation Federal health care programs.  Moreover, the adverse impact of an exclusion action is not merely limited to licensed individuals such as dentists, oral surgeons and / or dental hygienists.  Non-clinical staff who furnish administrative and management services that are payable by the Federal health care programs are also affected by an exclusion action and can expose your dental practice to liability.  As HHS-OIG’s “Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs” goes on to further clarify:
“. . . an excluded individual may not provide other types of administrative and management services, such as health information technology services and support, strategic planning, billing and accounting, staff training, and human resources, unless wholly unrelated to Federal health care programs.”

D. Exclusion Actions are Reported to the NPDB:

If an individual is excluded from participation in Federal health care benefits programs, HHS-OIG considers the matter to be a reportable event and will report the administrative sanction to the National Practitioner Databank (NPDB) for inclusion in its system.  As a result, all payors (both public and private), will be notified of the adverse action.   Since most dental practices participate in at least one dental insurance program, you are likely required to notify the payor of any adverse actions brought against you within 30 – 60 days of the event (the time to report varies from contract to contract).  Dentists placed in this position often find it difficult to effectively respond to private payor inquiries regarding an exclusion order.  If the dentist notifies a payor immediately after being excluded, most payors will initiate their own administrative review of the facts to determine whether they want to continue to allow the provider to continue work as a participating provider.  If a dentist fails to notify the payor of the exclusion action within the 30-60 day deadline imposed under the parties’ contract, a payor will typically initiate a termination action based on the provider’s breach of its contractual obligations.

IV.  The Solution – Reducing Your Level of Risk:

To reduce your level of risk, a dental provider should screen its applicants, clinical staff, administrative staff, contractors, vendors and agents on a monthly basis.  At the time of the writing of this article, there a total of 40 different databases that need to be checked.  These 40 databases include:

(1) List of Excluded Individuals and Entities (LEIE). Maintained by HHS-OIG.
(2) System for Award Management (SAM). Maintained by the General Services Administration.
(3) 38 State Medicaid Exclusion Registries. Maintained by either the State Attorney General’s Office or the State Medicaid Fraud Control Unit (MFCU).

Neither the Federal nor the State governments currently maintain a “consolidated” database that incorporates all of the Medicare and Medicaid exclusion actions into a single records system that can easily be checked by providers.   From a practical standpoint, it is rarely cost-effective for a provider to check all 40 databases on an individual basis.  Therefore, we strongly recommend that you utilize the services of an organization such as Exclusion Screening.  Their services are inexpensive yet comprehensive.   

V.  Conclusion:

The implementation of an effective screening program is perhaps the least expensive step you can take to help bring your dental practice into at least partial compliance.  Although, it won’t satisfy all of your obligations as a health care provider, it is a significant step in the right direction and can greatly reduce your level of overall risk.  We therefore strongly recommend that you fully comply with the recommendations of HHS-OIG and screen your employees, contractors, agents and vendors every 30 days. 

If handling this task is too burdensome to complete in-house, call the Exclusion Experts at Exclusion Screening at 1-800-294-0952 or fill out the form below!

 



 

Healthcare AttorneyRobert W. Liles, J.D., M.B.A., M.S., serves as Managing Partner at Liles Parker, PLLC.  Liles Parker is a health law firm representing dentists and dental practices around the country in connection with Medicare, Medicaid and private payor audits.  We also represent dentists in State Dental Board disciplinary actions.  For a complimentary consultation, give Robert a call at: (202) 298-8750.

 

[1] Please keep in mind, the List of Excluded Individuals and Entities (LEIE) that is maintained by HHS-OIG only includes Medicare exclusion actions and other exclusion actions that have been reported to it by one of the states.  Despite their obligation to do so, many states do not report all or some of the exclusion actions they have taken against health care providers, individuals and entities.  For a complete analysis of the exclusion actions taken against dentists and dental staff in 2017, a review of each of the state exclusion actions taken must also be conducted.

[2] Under the provisions of the 1977 Medicare-Medicaid Anti-Fraud and Abuse Amendments, Public Law 95-142 (now codified at Section 1128 of the Social Security Act), physicians and other practitioners convicted of program-related crimes were first excluded from participation in the Medicare and Medicaid programs.
[3] In this case, Delta Health Systems was the program administrator for United Parcel Service Inc. (UPS) employees.
[4] It is also worth noting that in a case where a pharmacist entered into an agreement to plead guilty if the state would not oppose a “deferred judgment,” HHS-OIG still took the position that it was appropriate to exclude the pharmacist from participation from participation in Federal health benefits programs. Unfortunately, the author does not give a citation for the case. HHS-OIG may have exercised its exclusion authority under one of the applicable permissive exclusion provisions.   

Why Should I Screen Against Every State Exclusion List?

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man overwhelmed by paper - state exclusion list

The Office of the Inspector General (OIG) issued a Special Advisory Bulletin in May 2013, which states that providers can “avoid potential Civil Monetary Penalty (CMP) liability” simply by checking the List of Excluded Individuals and Entities (LEIE) to “determine the exclusion status of current employees and contractors.” This past fall, September – November 2014, OIG collected $1.54 Million in Civil Money Penalties (CMPs) in cases involving the employment of 

persons that have been “excluded” from Medicare.

These providers were held liable because they “knew or should have known” that an employee or contractor was excluded from participation in the Federal health care programs. The “knew or should have known” standard arises from the same 2013 OIG Special Advisory Bulletin. OIG states that because the LEIE is updated monthly, so OIG recommends that providers check their employees and vendors against the LEIE and SAM monthly in order to avoid CMP liability.  The CMPs a provider may face for employing or contracting with an excluded individual or entity include liabilities of $10,000 for each item or service furnished directly or indirectly by an excluded individual, in addition to an assessment of up to three times the total damages, and exclusion from participation in the Federal health care programs.

State exclusion list

In addition to the federal lists, forty-one states now have their own state exclusion list.  These states require, at a minimum, that providers check their employees and contractors against their state exclusion list in addition to the LEIE as a requirement to participate in Medicaid and other state health care programs like SCHIP.  State mandates to search are hidden in a variety of documents such as Medicaid Provider Applications and Agreements, Disclosure of Ownership Interest, the State Code, or even the State’s Excluded Provider List.

At Exclusion Screening, LLCSM, we recommend screening your employees and contractors against not only the federal lists and your state exclusion list, but every available state exclusion list. The reason we recommend screening your employees against every available federal and state exclusion list is simple.  Do you want a person another state has determined is not permitted to bill to their Medicaid or SCHIP program working for your practice? A majority of individuals, at least according to the LEIE, are excluded because his or her license was revoked.  Other reasons include felony and misdemeanor convictions for committing health care fraud or for controlled substance offenses. 

As of December 2014, 26,178 individuals, or nearly half of the total individuals and entities excluded from participation in the Federal health care programs on the LEIE, were excluded due to a license revocation.  An immediate concern following this statistic is that, according to Deputy Inspector General for Investigations Gary Cantrell, not all state licensing boards provide information regarding adverse action taken against providers to OIG.  Cantrell reported to House Subcommittee on Oversight and Investigations within the Committee on Energy and Commerce, that States are not required to provide this information by statute leaving the OIG with incomplete exclusion information.

Furthermore, the under ACA Section 6501, all states are required to deny or terminate enrollment of any provider that is terminated “for cause” by Medicare or another State’s Medicaid or SCHIP program.  While the parameters of this new mandate are not yet flushed out, we believe that it is good practice to stay ahead of OIG when it comes to exclusions.  Under an ACA sister provision, 6401(b)(2), the Centers for Medicare and Medicaid Services (CMS) was required to create a national database where State agencies could share and access information about individuals and entities that were terminated from the Medicare, Medicaid, or SCHIP programs.  CMS created the Medicaid and Children’s Health Insurance Program State Information Sharing System (MCSIS) to make this information available to all State Medicaid agencies so that other states could identify providers that needed to be terminated.

Even though CMS had the authority to require states to submit this information, it only asked states to comply; CMS’s failure to make reporting mandatory resulted in a very deficient database with only 33 states submitting information, most of which was incomplete.  After two years of insufficient reporting, CMS discontinued the MCSIS database.  It plans to create a new private database, but CMS has not provided a proposed completion date for this new OnePI system or stated whether it would share information with the OIG-LEIE.

Additionally, some states have imposed their own strict requirements on providers.  Louisiana providers are required to check the LEIE, SAM, and the Louisiana Department of Health and Hospital Adverse Actions website upon hire and monthly thereafter for all employees and or subcontractors.  Louisiana providers are required to maintain proof in their records that these monthly checks were done for employees and or subcontractors, which may be evidenced by printing out search results. Providers are required to check all current and previous names  including first, middle, maiden, married, or hyphenated names and aliases for all owners, employees, and contractors.  If a provider learns an employee or subcontractor is excluded after hiring, the provider must notify the Department of Health and Hospitals within ten working days.

Texas, like Louisiana, requires that before a provider submits a Medicaid enrollment application, “the applicant or re-enrolling provider must conduct an internal review to confirm that neither the applicant or the re-enrolling provider, any of its employees, owners, managing partners, or contractors, have been excluded from participation” in Medicare, Medicaid, or SCHIP. In addition, Texas requires that an applicant or re-enrolling provider must also not be terminated from participation in another state’s medical assistance program or SCHIP. Texas Medicaid providers are responsible for checking the LEIE monthly and the Texas Medicaid Excluded Provider (HHSC) list upon hiring and periodically thereafter.  While Texas does not define periodically, it does remind providers that they are liable for all fees paid to them by Texas Medicaid for services provided by excluded individuals and “strongly recommend[] that providers conduct frequent period checks of the HHSC exclusion list.” The list is updated weekly.

Ohio also has a unique set of requirements.  Ohio Medicaid providers must, according to the Medicaid Provider Agreement, certify that he or she has no employment, consulting, or any other arrangement with excluded individuals or entities.  Managed Care Programs must, at a minimum on a monthly basis, search for excluded providers on the LEIE, the Ohio Department of Job and Family Services (ODJFS) Excluded Provider Page, and the applicable discipline pages of state boards that license providers.  Ohio providers are also required to search the SAM, the Ohio Department of Developmental Disabilities Abuser Registry, and the Ohio Auditor of State.

In addition to various state requirements, private health care companies also have begun including exclusion screening requirements.  Aetna, for example, requires that all health care professionals verify that all employees and “downstream entities that perform administrative or health care services to Aetna’s Medicare Plans” are not excluded on the LEIE or SAM.  If an Aetna provider discovers it has employed or contracted with an excluded provider, then he or she must immediately remove this individual or entity from Aetna related work and immediately notify Aetna.  Humana has nearly identical provisions for their physicians, hospitals, and other health care providers.

Screening employees for exclusions has morphed from an easy compliance responsibility to an overbearing obligation.  “Knew or should have known” is an easily manipulated standard.  Should you have known that another state excluded one of your employees or contractors? If OIG thinks so, you will be liable for Civil Monetary Penalties of up to $10,000 for each item or service furnished directly or indirectly by the excluded individual or entity, an assessment of up to three times the total damages, and exclusion from participation in the Federal health care programs. OIG has ramped up its exclusion enforcement evidenced by CMP liabilities resulting from self-disclosures and investigations totaling 6.07 million dollars in 2014 as compared to previous years with average CMP liabilities around $3 million.

The risks of not screening your employees against every state list significantly outweighs the costs of screening, especially when Exclusion Screening, LLCSM is able to efficiently and effectively screen your employees and vendors against all 41 lists at a very reasonable cost to providers. 

Call 1-800-294-0952 or fill out the form below today to discuss your exclusion screening needs and for a free assessment.

 

 



Who Should Be on my OIG Exclusion Screening List?

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oig exclusion screening list
I. Federal and State Agencies Conducting Audits

As many health care providers and suppliers have painfully learned over the last year, federal and state law enforcement agencies, along with many of the contractors with whom they work, are actively conducting audits of Medicare and Medicaid claims submitted to the government for coverage and payment.

One of the least understood mandatory obligations applicable to virtually every health care provider and supplier who accepts Medicare or Medicaid is the requirement that all participating providers are REQUIRED to screen more than just their staff. Instead, they must also screen contractors, vendors, and agents to ensure that they and their employees have not been excluded from participation in federal and state health care programs. The fact that these individuals and entities must be screened through literally dozens of federal and state exclusion databases further complicates this mandate. 

II. Broad Scope of OIG Exclusion Action

Importantly, the scope of an exclusion action is extremely broad. The Department of Health and Human Services, Office of Inspector General (HHS-OIG) has taken the position that if a vendor, contractor or supplier of administrative, management or support services has been excluded from participating in the Medicare or Medicaid programs, they are effectively barred from working with most health care provider and supplier entities. As HHS-OIG writes:

“Excluded persons are prohibited from furnishing administrative and management services that are payable by the Federal health care programs. This prohibition applies even if the administrative and management services are not separately billable. For example, an excluded individual may not serve in an executive or leadership role (e.g., chief executive officer, chief financial officer, general counsel, director of health information management, director of human resources, physician practice office manager, etc.) at a provider that furnishes items or services payable by Federal health care programs. Also, an excluded individual may not provide other types of administrative and management services, such as health information technology services and support, strategic planning, billing and accounting, staff training, and human resources, unless wholly unrelated to Federal health care programs.”1

At Exclusion ScreeningSM, we realize that compiling a list of all employees, vendors and contractors can be a daunting task. That’s why we help our customers evaluate and determine exactly who needs to be included during their monthly Exclusion Screening. 

III.  Creating Your OIG Exclusion Screening List

A partial listing of the parties you are required by law to screen include:

All employees and Staff: To properly screen you should be sure to examine (or submit this information to us so we can conduct the screens for you):

1.  SSN.

2.  Maiden names.

3.  Any former names.

4.  Birthdate.

Vendors, Contractors and Agents: You MUST screen vendors that provide items or services directly OR indirectly that are payable in whole or in part by the Federal health care programs2

Some potential vendors that must be included on your list:

1.  Ambulance and other Transportation Service Providers.

2.  Volunteers.

3.  IT Solution Providers.

4.  Security Technicians.

5.  Medical Equipment Managers.

6.  Food Service Workers.

7.  Lab Technicians.

8.  Pharmacists.

9.  Nurses and other Individuals Provided by Staffing Agencies.

10. Physician Groups that Provide Emergency Room Coverage.

11. Billing or Coding Contractors.

12. Directors.

13. Administrators.

14. Managers.

IV.  Contractors and Vendors

When it comes to contractors and vendors, HHS-OIG offers some interesting guidance in its 2013 Special Advisory. The OIG gives providers two options: (1) providers themselves may screen their contractors’ or vendors’ employees;3 or (2) a provider may rely on a contractor’s or vendor’s certification that the contractor or vendor is conducting screening of its own employees and contractors. Note that HHS-OIG recommends that the provider validate that the contractor is conducting such screening on behalf of the provider. One way providers can validate this information is by requesting and maintaining screening documentation from the contractor.4

V.  Screen for Exclusions: Avoid CMPs!

Screening this list can seem like a daunting task, but not doing so can create a world of hurt. The phrase “leave no stone unturned” couldn’t be more appropriate in this case. An effective compliance policy demands that providers employ comprehensive screening practices. Although the process may seem arduous, the risks providers face, if they do not screen, are dire. The Civil Monetary Penalty (CMP) for any item or service provided by an excluded individual or entity is up to $10,000. On top of CMPs, the providers may be required to pay up to three times the total amount of claims submitted to Medicare.  

Considering the hefty liabilities tacked on for merely employing even one excluded individual, it’s easy to see that making the effort to properly screen for exclusions pays for itself. If you’re worried that your organization isn’t screening the right individuals and entities, the exclusion experts at Exclusion ScreeningSM are happy to help you create your employee and vendor list. Feel free to contact us at 1-800-294-0952 or fill out the form below.

 



 

Ashley Hudson, oig exclusion screening list

Ashley Hudson, Associate Attorney at Liles Parker, LLP and former Chief Operating Officer for Exclusion Screening, LLC, is the author of this article. Feel free to contact us at 1-800-294-0952 or online for a free consultation.

[1]  Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs p. 15

[2]  Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs p. 15

[3]  Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs p. 15-16

[4]  Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs p. 16