From the Contributor’s Corner: OIG Issues Special Advisory Bulletin on the Effect of Exclusion in Federal Health Care Programs

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The Office of Inspector General (OIG) has issued a special advisory bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs.

The scope and use of the federal program exclusion authority continues to evolve. The HHS Office of the Inspector General (OIG) issued on May 8, 2013 the above captioned 19 page bulletin. It addresses the scope and frequency of screening employees and contractors against the OIG’s List of Excluded Individuals and Entities (LEIE) to determine if they are excluded from participation in federal health care programs. This is the first major update on the subject since its 1999 bulletin. The new bulletin restates the statutory background for exclusion authorities, describes the effect of exclusions and liabilities for employing or contracting with an excluded person, and discusses how to determine whether a person is excluded. The following are key highlights of this bulletin.

The bulletin provides clarification of questions that have been raised over the years concerning the LEIE. The OIG advises that when checking the LEIE, providers should maintain documentation of the names search performed in order to verify results of potential hits and to evidence that proper screening was performed. The search should be made of all names known of the individual, including, for example, a person’s maiden name.

The OIG also addresses the question of the frequency with which sanction screening should take place. It notes that there is no statutory or regulatory requirement on the frequency for checking the LEIE. The OIG notes that inasmuch as it updates the LEIE monthly, screening each month “best minimizes potential overpayment and CMP liability”. It further notes that in January 2009, CMS issued a State Medicaid Director Letter (SMDL) recommending that states require providers to screen monthly; and in 2011 it issued final regulations mandating State to screen all enrolled providers monthly.

The OIG also provided clarification regarding the determination of individuals and entities that should be screened. It stated any party providing an item or services that is directly or indirectly paid by a federal health care program should be screened against the LEIE.

The OIG also responded to a number of questions concerning screening against other government exclusion and debarment lists. In particular, it addressed the differences between the LEIE and the General Services Administration’s (GSA’s) Excluded Parties List System (EPLS) that was recently merged into the Systems for Awards Management or SAM. The OIG noted that the LEIE lists only exclusion actions taken by the OIG. It states that the LEIE should be considered the primary source. It noted that the OIG exclusion does not affect a person’s ability to participate in other Government procurement or non-procurement transactions. As to the debarments posted by the GSA, the OIG stated it has no authority to impose civil monetary penalties on the employment of a debarred person.

The OIG also addressed questions raised concerning the National Practitioner Data Bank and Healthcare Integrity and Protection Databank. Although providers may choose to check these databases, they are not substitutes for screening against the LEIE. The OIG calls for providers to use the LEIE as the primary database for purposes of exclusion screening.

Richard P. Kusserow was the Department of Health and Human Services Inspector General for over eleven years. He is the author of nine books related to compliance. He is the founder and CEO of Strategic Management, a firm that has been providing specialized compliance advisory services since 1992 to 2,000 clients. He is also the CEO of the Compliance Resource Center (CRC), including Sanction Screening Services (S³), which provides sanction screening tools and full outsourcing of sanction screening. Richard now contributes content to Wolters Kluwer Law & Business to assist the industry in their understanding of compliance from the perspective of a former Inspector General.

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Copyright © 2013 Strategic Management Services, LLC.  Published with permission.