Kusserow on Compliance: OIG issues first 2017 Semi-Annual report—1,422 exclusions in first half of 2017

The OIG released is first semi-annual report for 2017 which included the number of exclusion actions taken. There were a total of 1,422 individuals and entities they excluded from Medicare, Medicaid, and other Federal health care programs. Most of the exclusions resulted from convictions for crimes relating to Medicare or Medicaid, for patient abuse or neglect, or as a result of license revocation. The OIG posts all such actions on its List of Excluded Individuals and Entities (LEIE).  In its compliance guidance, the OIG calls for screening of all individuals and entities engaged by or with whom they do business against the LEIE. CMS also makes such screening a condition of participation and enrollment. The OIG has a number of Administrative Sanction authorities whereby they have added steadily to the LEIE database. In the last three years the OIG added over 10,000 exclusions to the LEIE.

OIG Enforcement Authorities

Tom Herrmann, JD, is a nationally recognized health care compliance consultant.  He served for a number of years in the OIG Counsel’s Office as Chief of the Administrative Litigation Branch, and supervised the litigation of cases involving the imposition of civil monetary penalties and program exclusions. He explained that the OIG has been delegated the authorities to impose Civil Monetary Penalties, assessments, and program exclusion on health care providers and others determined to have engaged in defined wrongdoing. The effect of an OIG exclusion is that no payment may be made for any items or services furnished by an excluded individual or entity, or directed or prescribed by an excluded physician. He noted that in almost all instances where the OIG’s imposition of program exclusion or CMPs is appealed, it is upheld by a HHS Administrative Law Judge (ALJ), the HHS Departmental Appeals Board (DAB), and Federal Courts. As such, it is absolutely essential to have ongoing sanction-screening of anyone engaged by a healthcare organization.

Jillian Bower, is another highly experienced health care compliance consultant, who has assisted scores of clients in meeting the sanction-screening obligations through the Compliance Resource Center (CRC). She notes that CMS has been very aggressive in calling for sanction screening, not only of the LEIE, but Debarments posted by the General Services Administration (GSA), as well as pressuring State Medicaid Directors to establish exclusion databases and mandate monthly screening by their enrolled providers. Since then most states have moved to comply with the CMS direction. This has increased the sanction-screening burden greatly for not only for the compliance office, but also human resource management (HRM). Procurement is also affected by the number of vendors and contractors that also have to be screened. Medical credentialing is involved because physicians granted staff privileges have to be screened. In order to meet screening mandates, it is almost a necessity to use a vendor search engine tools to assist in sanction-screening. This saves downloading the sanction databases of all the entities and developing their own search engine. So using a vendor for this purpose is a step in the right direction; however the bulk of the work remains with the organization to do screening and resolving potential “hits” remains with the organization. Altogether this can be a considerable effort and many organizations have to dedicate one or many employees to meet all these obligations. Alternatively, many just outsource the entire process, including verification and certification of results to a vendor

Sanction-Screening Tips

  1. Ensure periodic sanction screening of employees, medical staff, contractors, and vendors against the LEIE, not just at time of engagement but periodically thereafter. An individual or entity may be pass a sanction screen at time of engagement, but later have a sanction imposed.

 

  1. Maintain a complete record of sanction screening to evidence meeting mandates with individual(s) responsible for sanction screening attesting to results each time screening has taken place. If using a vendor to conduct the sanction screening on behalf of the organization, they should provide a full certified report each time they perform their service.

 

  1. Develop a compliance policy and applications requiring as a condition of employment, gaining staff privileges, or engagement, attestation that the individual has not been, nor are they now, the subject of an investigation by any duly authorized regulatory or enforcement agency. It is also advisable to add a condition of engagement that employees must promptly report any notice of investigation that involves them.

 

  1. Care should be taken to meet state Medicaid screening requirements in addition to checking the LEIE. For those organizations that cross state lines, it is particularly important to ensure compliance with state sanction screening mandates that differ from state to state.

 

  1. Inasmuch as most exclusions in the LEIE arise from another underlying court, state agency, or licensure board action, it is critical as part of the credentialing process to verify that health care professionals are duly licensed and not until any restrictions. Engaging or giving staff privileges to individuals who are restricted in their license may be considered by CMS as violating conditions of participation.

 

  1. Educate and inform management and employees on their obligation to promptly report any notification of an adverse action by any duly authorized regulatory or enforcement agency. Policies should be implemented to reinforce this.

 

  1. Consider using a vendor tool to assist in sanction-screening, but compare services and costs to avoid unnecessary expenditures; and consider the cost-benefits of outsourcing then entire sanction-screening process.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2017 Strategic Management Services, LLC. Published with permission.