Q. I’ve heard that I should consider not hiring a provider who has been excluded from Medicare. Is that true?
A. Yes, if the exclusion remains in effect. If that person tells you that the exclusion is no longer applicable, you should check with the organization or program that excluded him and document the findings in your files.
Q. Why would someone get excluded?
A. OIG notes that people can be excluded for a number of reasons.1 Most exclusions fall under the Social Security Act. For example, someone excluded from Medicare is excluded from all Federal and State health programs as well.2 Section 1128 of the Social Security Act notes that there are both “mandatory” and “permissive” exclusions.3 Mandatory reasons for exclusion include:
• conviction for a program-related crime;
• conviction related to patient abuse; and
• felony conviction related to health-care fraud or a controlled substance.
Permissive exclusions are those for which the Secretary of Health and Human Services may choose to exclude someone. The list is long, but includes in part:
• misdemeanor conviction related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct;
• other nonhealth care program criminal offenses;
• conviction related to obstruction of justice of an investigation or audit;
• misdemeanor conviction related to a controlled substance;
• license revocation or suspension;
• claims for excessive charges or unnecessary services, and even “failure to furnish” medically necessary services;
• failure to supply information needed to determine proper payments or otherwise making false statements.
These are serious offenses and only apply after proper adjudication.
Q. Does this consideration apply to other employees who work for me?
A. Yes. Exclusions can include your doctors but can also extend to people in nearly all other jobs within your organization—even those not in direct or indirect patient care.
Q. Where can I find who is excluded?
A. The Office of the Inspector General of the Department of Health and Human Services publishes a List of Excluded Individuals and Entities that is updated frequently. There’s a look-up tool on its website (exclusions.oig.hhs.gov) as well as a downloadable file (oig.hhs.gov/exclusions/exclusions_list.asp).
Q. What does it mean if I discover (or hire) someone who is excluded?
A. It’s potentially quite serious if true—a large part or even all of your claims to the government could be invalid—and if already paid, you could have to give all of the affected funds back. OIG notes, “The effect of an OIG exclusion is that no Federal health care program payment may be made for any items or services furnished (1) by an excluded person or (2) at the medical direction or on the prescription of an excluded person … [and the] payment prohibition applies to all methods of Federal health care program payment … and applies even if the payment is made to a state agency or a person that is not excluded.”
Q. When should I check the OIG’s LEIE list?
A. OIG says to “check it frequently.” Generally, you would do this before you make a decision to hire someone or even consider asking an entity to work alongside you. You would then do it at least annually. Other organizations might require you to do this more frequently (even as often as monthly), so be sure to check what each one requires and do what is needed. States might also have a separate list to search and have their own rules.
Q. How do I prove I did these searches?
A. Keep a record of the dates and results (even negative ones) of the exclusion searches that you do as evidence of performance.
Q. What does this mean for me and my organization?
A. It means that the excluded provider can’t submit individually or even be employed by another entity or individual that submits claims or services to a federal health care program (such as Medicare – Parts A/B/C/D, Medicare Advantage or Medicaid, as well as the Veterans’ Administration and TRICARE). The HHS’ OIG office wrote a special bulletin on this as well.4 There can be fines and penalties of up to $10,000 per item or service, and these can be trebled.
Q. I know all my employed doctors are OK. Should I do more?
A. Yes. You are required to check all your employees. OIG notes the “prohibition applies even if the administrative and management services are not separately billable … an excluded individual may not provide other types of administrative and management services, such as health information technology services and support, strategic planning, billing and accounting, staff training, and human resources, unless wholly unrelated to federal health care programs.” REVIEW
Mr. Larson is a senior consultant at the Corcoran Consulting Group. Contact him at plarson@corcoranccg.com.
1. US Department of Health and Human Services. Office of the Inspector General. Exclusion Authorities. Accessed 05/13/18.
2. Social Security Administration. Compilation Of The Social Security Laws. Exclusion of Certain Individuals and Entities from Participation in Medicare and State Health Care Programs. Section 1128. [42 U.S.C 1320a-7]. Accessed 05/13/18.
3. US Department of Health and Human Services. Office of the Inspector General. Exclusions FAQ. Accessed 05/13/18.
4. US Department of Health and Human Services. Office of the Inspector General. Special advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs. May 8, 2013. Accessed 05/13/18.
