Element #5 -Enforcement and Discipline: Understanding Exclusion Checks

We have covered the first four elements of developing a compliance program and a reoccurring theme that I have stressed is – it must be relevant, meaningful and transparent. The compliance program you put into place in your organization must have “teeth.” Your compliance program begins at the top- with buy in and participation from the top of the organization down. The main purpose is to no longer have our “head in the sand”, so to say. We are looking for organizational issues- assessing, correcting and disciplining when necessary.

Employees are made aware of the organizations compliance expectations when they are hired. You set the tone immediately by providing staff the code of conduct. As part of the hiring process accountability for compliance is clearly articulated in employee job descriptions and performance evaluations. The OIG recommends your organization conducts exclusion checks upon hire and monthly. I’m often surprised that facilities are not completing exclusion checks or confusing these checks with background checks. Exclusion checks are in addition to employee screening required by your state agency.

What is an exclusion check? The OIG maintains a list of individuals or entities that cannot participate in any federally funded healthcare program. This list is known as the LEIE or the List of Excluded Individuals and Entities and is update by the OIG monthly. Examples of OIG excluded individuals and entities can include MD’s, RN’s LPN’s, therapists, nursing home/hospice/ DME operators among a host of others.

Why are individuals or entities excluded? There are two types of exclusions: Mandatory exclusions and Permissive exclusions. According to the Office of Inspector general (www.oig.gov):

Mandatory exclusions: OIG is required by law to exclude from participation in all Federal health care programs individuals and entities convicted of the following types of criminal offenses:

· Medicare or Medicaid fraud,

· patient abuse or neglect;

· felony convictions for other health care-related fraud, theft, or other financial misconduct; and

· felony convictions relating to unlawful manufacture, distribution, prescription, or dispensing of controlled substances.

Permissive exclusions: OIG has discretion to exclude individuals and entities on several grounds, including (but not limited to):

· misdemeanor convictions related to health care fraud other than Medicare or a State health program,

· fraud in a program (other than a health care program) funded by any Federal, State or local government agency;

· misdemeanor convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances;

· suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity;

· provision of unnecessary or substandard services;

· submission of false or fraudulent claims to a Federal health care program;

· engaging in unlawful kickback arrangements;

· defaulting on health education loan or scholarship obligations; and

· controlling a sanctioned entity as an owner, officer, or managing employee.

As you can see, something as seemingly benign like defaulting on a student loan, can get someone on the exclusion list and restrict them from working in any federally funded program.

The effect of hiring an excluded individual or entity can be very serious. It’s simple- if you participate in Medicare, Medicaid or any other Federal health care programs all employees/vendors/subcontractors are required to be checked against the exclusion list upon hire and monthly.

The OIG has increased focus on checking for excluded individuals and make no mistake if the task force finds that you have employed or contracted with excluded individuals or entities, you could face fines and penalties – companies or facilities that participate in government health care programs may not employ an excluded individual.

A recent example posted on the OIG website recent, on January 4, 2019, Baptist Village of Owasso (BVO), Owasso, Oklahoma, entered into a $96,020.92 settlement agreement with OIG. The settlement agreement resolves allegations that BVO employed an individual who was excluded from participating in any Federal health care program. OIG's investigation revealed that the excluded individual, an admission specialist, provided items or services to BVO's patients that were billed to Federal health care programs. This single individual cost the facility close to $100, 000 in fines that could have been avoided with an exclusion check. As you can see this “recommended” check is STRONGLY recommended!

Ask yourself:

1) Are you screening all employees before hire and monthly?

2) Is your screening process monitored by your compliance committee?

3) Do employees know to inform you if they become excluded or are removed from the exclusion list?

4) Is compliance a measure on the annual review process?