Kusserow on Compliance: HHS OIG Spring 2018 semi-annual report on sanctions and exclusions

1,678 administrative sanctions

1,588 individuals and entities excluded

$35.5 million in CMPL penalties/assessments

The OIG released its first semi-annual report for 2018 that included the number of administrative sanctions, exclusion actions taken, and CMPL penalties imposed. There were a total of 1,588 individuals and entities 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 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 List of Excluded Individuals and Entities (LEIE). The OIG also imposed 1,678 administrative sanctions and Civil Monetary Penalty Law penalties and assessments involving more than $35.5 million.

Comments from experts concerning sanctions

Tom Herrmann, JD, served for 20 years in the OIG Counsel’s Office, including being the Chief of the Administrative Litigation Branch, responsible for 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. In almost all instances where the OIG’s imposition of program exclusion or CMPs is appealed, it is upheld by an Administrative Law Judge (ALJ), the Departmental Appeals Board (DAB), and federal courts. As such, it is absolutely essential to have ongoing sanction-screening of anyone engaged by a health care organization.

Jillian Bower-Concepcion 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 the OIG posts their exclusions on their LEIE and calls for screening of all individuals and entities engaged by or with whom they do business against that listing. CMS has also been very aggressive in calling for sanction screening, not only of the LEIE, but Debarments posted by the GSA, as well as pressuring state Medicaid Directors to establish exclusion databases and mandate monthly screening by their enrolled providers. 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 organizations from downloading the sanction databases of all the entities and developing their own search engine. 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.

 

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 © 2018 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OIG Attorneys continue cross-designation with DOJ

The HHS OIG issued its Semi-Annual Report for the first half of fiscal year (FY) 2018 (October-March) and summarizes key accomplishments, significant problems, abuses, deficiencies, and investigative outcomes relating to the administration of HHS programs and operations that were disclosed during the reporting period. Included in the report is a section referred to as the “Special Assistant U.S. Attorney Program.” Many are unaware of this program that unites under the DOJ attorneys and Special Agents of the OIG that are cross-designated as Special Assistant U.S. Attorneys. These OIG attorneys are detailed full time to the Fraud section of DOJ’s Criminal Division for temporary assignments, including assignments to the Health Care Fraud Strike Force. Other attorneys prosecute matters on a case-by-case basis. Both arrangements offer excellent litigation training for OIG attorneys and enhance collaboration between the departments in their efforts to fight fraud. Under this program, OIG attorneys have successfully litigated important criminal cases relating to the fraudulent billing of medical equipment and supplies, infusion therapy, and physical therapy, as well as other types of Medicare and Medicaid fraud.

In its report, the OIG cited as an example of how this program works in a Medicare fraud case in Texas where cross-designated Special Assistant U.S. Attorney prosecuted an individual for fraud. The individual owned and operated group homes in the Houston, Texas area and engaged in a scheme to defraud Medicare by receiving kickbacks in exchange for referring her group home residents for home health services. She pleaded guilty to making false statements to federal agents and was sentenced to 6 months in prison.

 

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.

Connect with Richard Kusserow on Google+ or LinkedIn.

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Copyright © 2018 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OIG testifies on investigative results over last three years

Gary Cantrell, HHS OIG Deputy Inspector General for Investigations, testified before a Senate Special Committee hearing to highlight the results of the OIG’s enforcement activities, focusing many of his comments on the current Opiod Crisis. He noted that the OIG Special Agents have full law enforcement powers and collaborate with other federal, state, and local law enforcement partners to combine resources to detect and prevent health care fraud, waste, and abuse. Over the last three years, OIG investigations have resulted in more than $10.8 billion in investigative receivables; 2,650 criminal actions; 2,211 civil actions; and 10,991 program exclusions.

The OIG is a lead participant in the Medicare Fraud Strike Force, which combines the resources of the OIG and DOJ, including Main Justice, U.S. Attorneys’ Offices, and the Federal Bureau of Investigation (FBI), as well as State and local law enforcement, to fight health care fraud in geographic hot spots. Since its inception in March 2007, the Strike Force has charged more than 3,000 defendants who collectively billed the Medicare program more than $10.8 billion. Last year, the Strike Force led the largest takedown ever in health care fraud enforcement. It resulted in 412 charged defendants across 41 federal districts, including 115 doctors, nurses, and other licensed medical professionals, for their alleged participation in health care fraud schemes involving approximately $1.3 billion in false billings.

The OIG also collaborates with state Medicaid Fraud Control Units (MFCUs) to detect and investigate fraud, waste, and abuse in state Medicaid programs.  Another investigative partner is the Healthcare Fraud Prevention Partnership and the National Healthcare Anti-Fraud Association—a public–private partnership that addresses health care fraud by sharing data and information for the purposes of detecting and combating fraud and abuse in health care programs.

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.

Connect with Richard Kusserow on Google+ or LinkedIn.

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

Kusserow on Compliance: DOJ ‘Brand’ memorandum

One of the topics discussed at the recent HCCA Compliance Institute related to current DOJ positions regarding compliance guidance. Many questions have been raised since Atty. Gen. Sessions issued a memorandum at the end of last year that intended to implement the new administration’s goal of reducing overregulation. The AG stated, in the past, the DOJ had published guidance documents binding parties outside of the rulemaking process. Additionally, the AG stated that the DOJ was no longer engaged in this practice. Going forward, the DOJ is not to issue guidance documents that purport to create a right or obligation binding a person or entity outside the executive branch of the federal government. As such, guidance documents provided by the DOJ setting up voluntary standards need to clearly state that compliance with such standards would be voluntary—that failure to comply would not, in itself, result in enforcement action.

Earlier this year, Associate AG Rachel Brand issued a memo on behalf of the DOJ prohibiting certain DOJ uses of federal agency guidance documents in affirmative civil enforcement (ACE) cases (the “Brand Memo”). ACE cases include lawsuits brought by the DOJ on behalf of the United States to recover money lost to fraud or other misconduct, or to impose penalties for violations of Federal health, safety, civil rights or environmental laws, for example, False Claims Act (FCA) enforcement by the DOJ.  The Brand Memo stated that the DOJ is now prohibited from using its enforcement authority to effectively convert agency guidance documents into binding rules; and DOJ litigators may not use noncompliance with agency guidance documents as a basis for proving violations of applicable law in these cases. It also prohibits the DOJ from “using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” The primary focus of the memorandum was on government contractor cases.

The long and short of this memorandum is that the DOJ can continue to use agency guidance documents  for “proper purposes,” but should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.

 

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.

Connect with Richard Kusserow on Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2018 Strategic Management Services, LLC. Published with permission.