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.

Kusserow on Compliance: OIG proposed budget for 2018 cites accomplishments

The HHS OIG submitted their fiscal year (FY) 2018 proposed budget for a total of $359 million that includes $291 million to support oversight of the Medicare and Medicaid programs.  In justifying their request, the OIG reported expected recoveries of more than $5.66 billion for FY 2016 that includes $4.46 billion in investigative receivables and approximately $82 million in CMPs. The OIG’s work also prevents fraud and abuse through industry outreach and guidance and recommendations to HHS to remedy program vulnerabilities. Additionally, OIG reported on its role as a Health Care Fraud and Abuse Control (HCFAC) program participant in returning $5 to the Medicare Trust Funds for every $1 invested in FY 2016. The OIG reported 844 criminal actions against individuals or organizations that engaged in crimes against HHS programs and 708 civil and administrative enforcement actions, including False Claims Act lawsuits filed in Federal district court, and Civil Monetary Penalty (CMP) law settlements. The OIG excluded 3,635 individuals and organizations from participation in Federal health care programs. The OIG is also part of Health Care Fraud Strike Force teams that coordinate operations conducted jointly by Federal, State, and local law enforcement entities that resulted in filing of charges against 255 individuals or entities, 207 criminal actions, and $321 million in investigative receivables.

Over the last five years, the OIG’s expected recoveries have averaged $5.3 billion annually. Changes in the amount of expected recoveries from year to year are due to the particular mix of cases resolved in a given year, as well as continued efforts to work with operating divisions to implement OIG recommendations.

 

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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Google+ or LinkedIn.

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

Kusserow on Compliance: Summary of OIG fraud and abuse actions first half of 2017

The HHS OIG issued their Semi-Annual report for first half of fiscal year (FY) 2017 and summarized 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. The following summarizes reported statistical accomplishments.

Criminal Actions (468). OIG reported 468 criminal actions against individuals or entities that engaged in crimes against HHS programs and 461 civil actions, which include false claims and unjust-enrichment lawsuits filed in Federal district court, civil monetary penalties (CMP) settlements, and administrative recoveries related to provider self-disclosure matters.  During the first half of FY 2017, OIG reported expected investigative recoveries of over $2.04 billion.

Health Care Strike Force (152 Criminal Actions). The Health Care Fraud Strike Force teams brought charges against 45 individuals or entities, 152 criminal actions, and $267 million in recoveries through investigations.

State Medicaid Fraud Control Units (MFCUs) (1,564 Criminal Actions).  The OIG has oversight responsibility for MFCUs and administers grants that provide federal funding for their operations. There are 50 MFCUs (in 49 States and the District of Columbia) totaled almost $259 million. The MFCUs employed 1,965 individuals. MFCUs reported 18,730 investigations, of which 15,509 were related to Medicaid fraud and 3,221 were related to patient abuse and neglect, including misappropriation of patients’ private funds. The cases resulted in criminal charges or indictments involving 1,721 individuals, including 1,249 for fraud and 472 for patient abuse and neglect. In total, 1,564 convictions were reported in FY 2016, of which 1,160 were related to Medicaid fraud and 404 were related to patient abuse and neglect. Civil judgments and settlements for FY 2016 totaled 998, and monetary recoveries in civil cases totaled over $1.5 billion. During this reporting period, OIG special agents partnered with MFCUs in conducting joint investigations on 714 criminal cases.

Program Exclusions (1,422). During this semiannual reporting period, OIG excluded 1,422 individuals and entities 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. OIG is also responsible for reinstating providers who apply and have met the requirements of their exclusions.

Sanction Authorities and Other Administrative Actions (1,504).  OIG sanctions include the exclusion of individuals and entities from federal health care programs and the imposition of CMPs for submitting false and fraudulent claims to a federal health care program or for violating the Anti-kickback statute, the Stark law, or the Emergency Medical Treatment and Labor Act (EMTALA), also known as the patient dumping statute. During this semiannual reporting period, OIG imposed 1,504 administrative sanctions in the form of program exclusions or administrative actions for alleged fraud or abuse or other activities that posed a risk to federal health care programs and their beneficiaries.

Civil Monetary Penalties Law (CMPL) ($26 million0. The CMPL authorizes OIG to impose administrative penalties on and assessments against a person who, among other things, submits, or causes to be submitted, claims to a federal health care program that the person knows, or should know, are false or fraudulent. In addition to administrative penalties and assessments, OIG can also exclude individuals for engaging in conduct prohibited by the CMPL. During this semiannual reporting period, OIG concluded cases involving more than $26.3 million in CMPs and assessments.

Self-Disclosure Programs ($23 million). Health care providers, suppliers, or other individuals or entities subject to CMPs can apply for acceptance into the Provider Self-Disclosure Protocol, a program created in 1998, to voluntarily disclose self-discovered evidence of potential fraud. During this semiannual reporting period, self-disclosure cases resulted in more than $23 million in HHS receivables.

 

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: Factors OIG considers in deciding exclusions

The HHS Office of Inspector General (OIG) has authority exclude any individual or entity engaging in prohibited activities from participation in the federal health care programs, and add him or her to their List of Excluded Individuals and Entities (LEIE). The effect of this 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. This authority is anchored in legislation going back to 1977; the OIG was delegated authority to impose civil monetary penalties (CMPs), assessments, and program exclusion on health care providers and others determined to have submitted, or caused the submission of, false or fraudulent claims to the Medicare or Medicaid programs. During my 11-year tenure as Inspector General (IG), the administrative remedies were broadened to address additional types of misconduct. This has continued over the years.  Passage of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) amended and expanded the existing authority for the OIG to impose CMPs and exclusions.

 Factors in exclusion decisions

The LEIE database is very large, with 3,000 new exclusions being added annually. About half of the exclusions included in the database are for criminal convictions related to health care programs and for patient abuse or neglect. These are mandatory exclusion.  In addition, the OIG has discretionary authority to exclude for other types of misconduct, such as license revocation or suspension, exclusion or suspension from another federal or state health care program, provision of unnecessary or substandard services, fraud or kickbacks, and default on a health education loan.

Tom Herrmann, J.D. served over 20 years in the Office of Counsel to the Inspector General. He explained that when exercising its discretionary authority to exclude, the OIG takes into consideration a number of factors, including the following:

  • Nature and circumstances of conduct. This includes determining adverse physical, mental, financial, or other impact to program beneficiaries, recipients, or other patients.
  •  Financial loss. Conduct  that (1) was part of a pattern of wrongdoing; (2) occurred over a substantial period of time; (3) was continual or repeated; and (4) continued until or after the person learned of the Government’s investigation indicates higher risk.
  • Leadership role. If the individual organized, led, or planned the unlawful conduct.
  • History of prior fraudulent conduct. History of judgments, convictions, decisions, or settlements in prior enforcement actions, as well as (1) refusal to have entered into a corporate integrity agreement (CIA), (2) breach of a prior CIA, or (3) lies or failure to cooperate with the OIG while under a CIA.
  • Conduct during investigation. Any (1) obstruction in the investigation or audit; (2) taking any steps to conceal the conduct from the government; or (3) failure to comply with a subpoena.
  • Resolution. The inability to pay an appropriate monetary amount (including damages, assessments, and penalties) to resolve a fraud case.
  • Absence of compliance program. Absence of a compliance program that incorporates the seven elements of an effective compliance program.

Avoiding exclusion

There are a number of steps that can be taken to reduce the likelihood of the OIG exercising its discretion to exclude parties and put them on the LEIE. These include being able to evidence:

  1. Initiating internal investigation and sharing results before the government gets involved;
  2. Self-disclosing an internal investigation;
  3. Cooperating with the government, if it initiate an investigation;
  4. Taking appropriate disciplinary action against individuals responsible for bad conduct;
  5. Implementing an effective compliance program, prior to government investigation;
  6. Devoting increased/improved support for the compliance program; and
  7. Having in the past self-disclosed overpayments in good faith to the OIG and CMS.

LEIE sanction screening

Screening individuals and entities prior to engagement and periodically thereafter is not optional–it is a necessity.   The best practice is to screen monthly against the LEIE and any state exclusion database where business is conducted, in that CMS has set this as a standard for Medicaid Directors.   In addition to screening against the LEIE, most states require screening against their database of sanction parties. Often there are delays in resolution of cases, so that a party may not be included in a sanction database at time of engagement, but is added later. Furthermore, inasmuch as most state Medicaid Fraud Control Units report their criminal actions to the OIG, that in turn includes them in the LEIE, resulting in frequent cases of multiple hits for the same underlying action. This is further complicated by the fact that there are delays when actions by state agencies are reported to the OIG for their determination to add them to the LEIE.

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