An active compliance program remains a vital necessity in healthcare environment as it is a critical component to safe, quality patient care, and a demonstration of the organization’s commitment to adhere to the law and healthcare standards. In order to achieve an effective healthcare compliance, providers have a responsibility to know if their employees and independent contractors have been excluded from participating in federal healthcare programs by the Office of Inspector General (OIG).
The OIG has the authority to exclude individuals and entities from federally funded health care programs, such as Medicare and Medicaid, pursuant to sections 1128 and 1156 of the Social Security Act. The main effect of OIG exclusions is that payment is prohibited for items or services that an excluded individual or entity provides. The prohibition refers to anyone who chooses to employ or contract with an excluded individual or entity. Providers who violate this are required to pay back all federal healthcare program funds that are inappropriately received and may also be subject to civil monetary penalties (CMPs).
OIG Exclusion Process
OIG exclusions process is governed by regulations that implement sections of the Social Security Act. When an individual or entity receives a Notice of Intent to Exclude, it does not necessarily mean that they will be excluded. The OIG will carefully consider all material provided by the person who received the Notice before making a decision.
The deadline for opposing exclusion is 30 days. During that time period, an individual or entity needs to review the reasons for exclusion that are presented in the notice, develop arguments against exclusion, and gather all of the evidence in support of those arguments. Finally, an individual or entity has to submit opposition in a persuasive manner in order to convince the OIG not to put them on the exclusion list.
There are two types of exclusions that apply to individuals and entities: mandatory and permissive exclusions. These two categories specify types of misconduct that may require an individual or entity to be placed on the List of Excluded Individuals and Entities (LEIE).
Mandatory exclusions can be imposed for the following six reasons:
- Conviction of program-related crimes. Minimum period is 5 years.
- Conviction relating to patient abuse or neglect. Minimum period is 5 years.
- Felony conviction relating to healthcare fraud. Minimum period is 5 years.
- Felony conviction relating to controlled substance: Minimum period is 5 years.
- Conviction of two mandatory exclusion offenses. Minimum period is 10 years.
- Conviction on three or more occasions of mandatory exclusion offenses. This exclusion is permanent.
Permissive exclusions can be imposed for reasons such as:
- Misdemeanor conviction relating to healthcare fraud. Minimum period is 3 years.
- Conviction relating to fraud in non-healthcare programs. Minimum period is 3 years.
- Conviction relating to obstruction of an investigation. Minimum period is 3 years.
- Misdemeanor conviction relating to controlled substance. Minimum period is 3 years.
- License revocation or suspension. Minimum period is based on the period imposed by state licensing authority.
- Exclusion or suspension under federal or state healthcare program. Minimum period is based on the period imposed by the federal or state healthcare program.
- Claims for excessive charges, unnecessary services or services which fail to meet professionally recognized standards of healthcare. Minimum period is 1 year.
- Fraud, kickbacks, and other prohibited activities. No minimum period.
- Entities controlled by a sanctioned individual. Minimum period is same length as an individual’s exclusion.
- Entities controlled by a family or household member of an excluded individual and where there has been a transfer of ownership or control. Minimum period is same length of an individual’s exclusion.
- Failure to disclose required information, supply requested information on subcontractors and suppliers, or supply payment information. No minimum period.
- Failure to grant immediate access. No minimum period.
- Failure to take corrective action. No minimum period.
- Default on health education loan or scholarship obligations. Minimum period lasts until default has been cured or obligations have been resolved to Public Health Service’s (PHS) satisfaction.
- Individuals controlling a sanctioned entity. Minimum period is same period as entity.
- Making false statement or misrepresentations of material fact. No minimum period.
- Failure to meet statutory obligations of practitioners and providers to provide medically necessary services meeting professionally recognized standards of healthcare Peer Review Organization (PRO) findings. Minimum period is 1 year.
Effects of OIG exclusions
Exclusions from participation in federal healthcare programs can be financially crippling for individuals and entities because they are deprived of significant earnings and can suffer fatal damage to their reputation.
The primary effect of OIG exclusions is that no payment will be provided for any items or services furnished, ordered, or prescribed by an excluded individual or entity. In addition to this, if healthcare providers arrange or contract with a person that they know or should know is excluded by OIG, providers may face severe penalties. An entity that bills for services rendered by an excluded provider can face CMPs of $10,000 per occurrence, triple damages for the amount claimed for each item or service, and exclusion from participating in federal healthcare programs.
It is clear that effects of OIG exclusions are devastating and healthcare providers need to take necessary measures to prevent any potential consequences. To be sure that no prospective or current employees are excluded from participation in Federal healthcare programs, providers need to check the LEIE, together with the System for Award Management (SAM) and state Medicaid exclusion lists.
Exclusion screening can be a burdensome and complex process, but healthcare providers can prevent potential non-compliance with an automated exclusion screening software. This enables them to swiftly and efficiently screen all employees by cross-checking regularly updated federal and state exclusion databases. Thus, providers eliminate the risk of being excluded from federally-funded healthcare programs and protect their organizations from incurring federal penalties that can quickly add up.