Breaking Compliance News Blog

On November 4, CMS' Program Integrity Enhancements to the Provider Enrollment Process final rule goes into effect. 

The "Affiliates" provision of this rule requires Medicare, Medicaid and CHIP providers to disclose to CMS any affiliations with organizations that have had a "disclosable event." Providers who fail to make these disclosures can be denied enrollment - or have their enrollment revoked. The purpose of this new process is to stop fraud and help CMS find parties that have committed fraud.

What's an "affiliation"?

There are five ways a provider can have an "affiliation' with an organization:

• a 5% or more direct or indirect ownership interest in another organization
• a general or limited partnership interest (of any percentage) in another organization
• an interest in which an individual or entity exercises "operational or managerial control over, or directly or indirectly conducts, the day-to-day operations of another organization," by contract of another arrangement. This includes sole proprietorships.
• when an individual is acting as officer or director of a corporation
• a reassignment or payment assignment relationship

What's a "disclosable event"?

Providers must disclose "affiliations" within the past five years to CMS if the affiliated organization has a "disclosable event:"

• current uncollected debt owed to Medicare, Medicaid or CHIP
• current or prior payment suspension
• current or prior OIG exclusions
• Medicare, Medicaid or CHIP enrollment denial, revocation or termination

When does this go into effect?

We have an opioid problem

In the United States, 134 opioid-related deaths occur daily. In 2016, more than 60,000 Americans died from drug overdoses, and two-thirds of those deaths were opioid related. Fentanyl is now responsible for more overdose deaths (28.8%) than heroin. And, three out of four new heroin users first misuse prescription opioids.

In 2017, almost one-third of Medicare Part D beneficiaries received opioids. About 460,000 beneficiaries received high amounts of opioids; 71,000 beneficiaries were at serious risk of misuse or overdose; and almost 300 prescribers had questionable prescribing. Everyone agrees our country has an opioid problem.

Today's guest blog comes from Michael Rosen, Esq., Co-Founder of ProviderTrust. Michael is one of the nation's leading experts on excluded provider screens.

10 Reasons Why Pre-transactional OIG Exclusion Checking is Essential

“The early bird catches the worm.”

“If you want to see the sunrise, get up early.”

“An ounce of prevention is worth a pound of cure.”

All of these sayings signify that it is never too early to do the right thing and when it comes to avoiding fines and penalties, that means pre-transactional OIG exclusion due diligence. 

Lawyers know that the devil is in the detail. That is why careful consideration and time is taken to conduct thorough and complete due diligence as a part of a transaction. If done properly, it will include an audit of many areas of compliance. An article in the Nashville Post discusses this point. According to the article, evaluating deals requires a larger compliance push that is driving up the overall cost of deals. “Compliance is actually the reason most deals don’t get done,” said Todd Rudsenske, Cain Brothers managing director. “If proper compliance checks haven’t been made, then what happens when the value goes out the door?”

On April 18, 2017, a woman was arrested in St. Louis, MO and is facing federal charges of health care fraud and identify theft after working as an agency nurse in the intensive care unit and geriatric psych unit at a local hospital for three months. The woman is accused of working as a nurse, despite lacking a nursing license or degree in any state.

The Red Flags

In March 2017, this individual applied for a job with a nurse staffing company in Chicago. As reported in the St. Louis Post-Dispatch, the co-owner of the firm found the following problems with her employment application:

• She failed a basic ICU skills test
• She reported a New Mexico nursing license, but her social security number did not match any nursing license in New Mexico
• The copy of her nursing license looked like it was copied and pasted with incorrect numbers and formatting as well as crooked text

Separate criminal charges have also been filed against the woman in New Mexico, where the authorities claim she was hired as a nursing instructor at the Brown Mackie College School of Nursing in 2015 – despite not having a nursing degree or license.

Don’t Let This Happen to You

How does an individual who is not a licensed nurse get hired as 1) a hospital ICU nurse and 2) a school of nursing instructor? This mistake was easily found by the Chicago staffing company which tried to verify her credentials with the state.

License verification is a necessary procedure for all new hires. This requires independent verification with the state – never rely on documentation provided by applicants or staff. Verification should also occur on a monthly basis. Many state license boards publish monthly lists of professionals whose licensed have been disciplined, suspended or revoked. Someone in the HR or Compliance departments should be reviewing this list to see if any staff or contractors are listed. HR and Compliance should also collaborate to audit these procedures periodically to make sure these simple steps are being completed.

Finally, staffing agencies should be thoroughly addressed. If your company uses temporary or agency staff, be confident that the agency(ies) are properly vetting the individuals they send to work in your organization. You are billing Medicare and Medicaid for their work, and exposing your patients to these individuals, after all. The agency’s duty to screen their staff can be addressed by contract. The provider can – and should – also audit the agency to verify that screening occurs. Finally, it is wise for providers to also conduct screens of agency or temporary staff whenever feasible.

Last week, the OIG updated its process for excluding providers from Federal health care programs. This update brings very good news for providers working on their compliance programs: The OIG now considers a provider's history of compliance when deciding whether to exclude it from Medicare and Medicaid.

Read the details at the ProviderTrust blog, courtesy of Michael Rosen.

To learn more about the OIG's excluded provider process, and why it is important to screen your staff for excluded providers, click here.

Under the Affordable Care Act, if a provider is "excluded" from participating in Medicare or Medicaid "for cause," states are required to exclude that provider as well. And yet in many states, excluded parties are falling through the cracks.

A special report by Reuters reveals that 20% of providers excluded from Medicare were still billing State Medicaid programs. For example:

• A doctor excluded from billing in Georgia continued to bill South Carolina Medicaid for almost a year.
• A doctor remained eligible to bill Pennsylvania Medicaid despite serving a multi-year prison term for taking illegal payments for hospice referrals.
• A doctor pleaded no contest to felony workers' compensation fraud in Ohio in 2011, and CMS revoked his billing privileges; Ohio revoked his license to practice medicine in 2012. The doctor continued to bill Illinois Medicaid through April 2013.

While these examples involve physicians, the same delays in updating exclusion status can occur with other providers.

Scenarios like these can sometimes be explained by incomplete data, state and federal databases that don't synchronize, or even differing interpretations of excluded provider requirements. 

Are you doing everything you can to find excluded providers?

Steep penalties apply for providers who submit claims to Medicare or Medicaid for services provided by excluded parties. And there are other reasons why providers want to be sure excluded providers aren't working in their facilities--these providers can pose threats to compliance integrity or, in some cases, to the patients we serve.

With the OIG increasing its use of data mining to locate excluded providers, providers' efforts to screen employees are more important than ever. Are you doing everything you can to find excluded providers?

What you can do

Check for excluded providers before hire/contracting, and monthly.  Partnering with a software vendor is a relatively simple and cost effective alternative to using staff time to perform the same function. If you hire personnel who have previously worked in other states, you might want to consider conducting a screen in those states, too.

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 fines.

Do you rely on staffing agencies to provide temporary staffing for your organization? If so, are you confident that these staffing agencies are sending you personnel who have been sufficiently screened?

Reliance on staffing agencies is essential for providers seeking to comply with staffing ratios and requirements. Reliance on staffing agencies is also not without risk, and a process to be managed.

For example, when you hire a new employee, you likely conduct a background check, verify the person's license status (if applicable), and check to make sure the employee is not an excluded provider. You likely expect your staffing agencies to conduct the same screens of employees--but how can you be sure this is really happening?

The Office of Inspector General (OIG) announced that a faith-based, not-for-profit long term care health and rehabilitation center entered a $30,122 settlement with the government. The center employed a nurse who was excluded from participating in Federal health care programs such as Medicare and Medicaid.