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Penalties await those who unknowingly employ or contract with excluded providers

Posted by Andrew Buffenbarger on 5/31/13 11:46 AM

The OIG recently released a Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs. The purpose of the bulletin is to remind providers of the prohibition on payment from Federal health care programs when services are provided by 1) an excluded person or 2) at the medical direction or on the prescription of an excluded person. Essentially, providers cannot use Federal health care program dollars to pay for the work of excluded individuals or companies.

How does someone become an excluded provider?

Individuals and contractors can become excluded providers for a variety of reasons, including Medicare or Medicaid fraud; patient abuse or neglect; health care related felonies; controlled substance felonies; some misdemeanors; suspension or revocation of a health care license; provisions of unnecessary services; submission of false claims; and kickbacks.

The OIG recommends monthly screening

The OIG recommends that employees and contractors be screened pre-hire and re-screened monthly. This is no small task. The challenge providers face is keeping up with the ever-changing lists of excluded providers. The Federal exclusion lists to watch include the OIG Excluded Providers and the GSA (now combined with SAM). States also maintain lists of excluded providers. There can be multiple different databases to check, in addition to the regular licensure and criminal history screening that should be checked routinely. 

The OIG clarifies the services subject to the prohibition

The prohibition against payment for services provided by excluded providers extends beyond direct patient care. The OIG clarified that Federal health care programs will not pay for the following services:

  • Administrative and management services such as HR, HIT, billing, etc.
  • Services provided pursuant to an order or prescription written by an excluded physician
  • Services provided by nurses provided by a temporary staffing agency
  • Any services payable by a Federal health care program-whether provided by an employee, contractor, volunteer, or anyone else with a relationship with the provider.

What happens if a provider inadvertently employs or contracts with an excluded provider?

Your exposure in this area can be significant if an employee or contractor is added to an exclusion list without your knowledge. Any Federal health care program payments made to a provider for work done by an excluded individual or company are to be multiplied by three and returned. In addition, providers will be assessed a CMP of up to $10,000 per claim and risk joining the list of excluded providers themselves.

What you can do

Check for excluded providers before hire/contracting, and monthly. There are software solutions that can help providers stay abreast of changes to exclusion lists and complete regular screening. Partnering with a software vendor is a relatively simple and cost effective alternative to using staff time to perform the same function.

If you conduct a screen and find an excluded employee or contractor, contact legal counsel immediately. The OIG reports that self-disclosure and quick action can result in leniency when calculating your fines and return payment amounts.


Topics: Penalties and Enforcement, Excluded Providers

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