EFFECT OF EXCLUSION FROM PARTICIPATION IN FEDERAL HEALTH CARE PROGRAMS
 
  
By: Donald R. Moy, Esq.

Each professional practice needs to determine whether potential and current employees and contractors have been excluded from participation in federal health care programs including Medicare and Medicaid. The effect of a Department of Health and Human Services, Office of the Inspector General (OIG) exclusion from federal health care programs is that no federal health care program payments may be made for any items or services furnished, directly or indirectly, by an excluded individual or entity. In addition to the payment prohibition, anyone who hires an excluded individual or entity may be subject to civil monetary penalties (CMPs). The OIG maintains a list of currently excluded individuals and entities called the List of Excluded Individuals and Entities (LEIE). It is crucial that each professional practice review the LEIE data base prior to employing a health care professional or entering into an agreement with a contractor. 
 
Violation of OIG Exclusion by an Excluded Person

An excluded person violates the exclusion if the person furnishes to Federal health care program beneficiaries items or services for which Federal health care payment is sought. An excluded person that submits a claim for payment to a Federal health care program, or causes such a claim to be submitted, may be subject to a CMP of $10,000 for each claimed item or service furnished during the period that the person was excluded. The person may also be subject to an assessment of up to three times the amount claimed for each item or service. In addition, a violation of an exclusion is grounds for OIG to deny reinstatement to Federal health care programs.
 
An exclusion violation may lead to criminal prosecutions or civil actions in addition to the CMPs. An excluded person that is found to knowingly conceal or fail to disclose any action affecting the ability to receive any benefit or payment may be subject to criminal liability.
 
CMP Liability for Employing or Contracting with an Excluded Person

The OIG may impose CMPs against health care professionals and practices that employ or contract with excluded persons to provide items or services payable by Federal health care programs. The OIG may also impose CMPs on health maintenance organizations (HMOs) that employ or contract with excluded individuals. If a health care provider arranges or contracts (by employment or otherwise) with a person that the provider knows or “should know” is excluded by the OIG, the provider may be subject to CMP liability if the excluded person provides services payable, directly or indirectly, by a Federal health care program. The OIG may impose CMPs up to $10,000 for each item or service furnished by the excluded person for which Federal program payment is sought, as well as an assessment of up to three times the amount claimed, and possibly, program exclusion. 
 
A professional practice cannot claim that the practice “did not know” that the person or entity was excluded because the OIG, at least since 1999, has provided notice that health care professionals should use the LEIE database, which is available at the OIG website. 
 
A health care professional practice could be subject to CMP liability if an excluded person participates in any way in the furnishing of items or services that are payable by a Federal health care program. CMP liability would apply to the furnishing of all of the categories of items or services that are violations of an OIG exclusion including direct patient care, indirect patient care, administrative and management services, and items or services furnished at the medical direction or on the prescription of an excluded person when the person furnishing the services knows or “should know” of the exclusion. An excluded person may not provide services that are payable by Federal health care programs, regardless whether the person is an employee, a contractor, or a volunteer. 

The LEIE

The OIG maintains the LEIE on its website http://oig.hhs.gov/exclusions. In addition to the LEIE and downloadable Date File, OIG’s Exclusion Page contains Quick Tips on how to use the LEIE, Frequently Asked Questions regarding OIG’s Exclusion Program, information regarding how to apply for reinstatement, video podcasts, and contact information for the OIG Exclusion Program. The online database contains the following information: 
  1. name of the excluded person; 
  2. the person’s provider type; 
  3. the authority under which the person was excluded; 
  4. the State where the excluded individual resided at the time of Exclusion or the State where the entity was doing business; and 
  5. a mechanism to verify search results via Social Security Number (SSN) or Employer Identification Number (EIN). 
The LEIE Downloadable Data File can be downloaded to provide the entire LEIE. Supplemental exclusion and reinstatement files are posted monthly. The Downloadable File does not contain SSNs or EINs, and, therefore, verification of specific individuals or entities through the use of SSN or EIN must be done via the Online Searchable Database. 
 
It is recommended that professional practices maintain documentation of the initial name search performed (such as a printed screen-shot showing the results of the name search).
 
It is also recommended that professional practices search the list of Medicaid Terminations and Exclusions at the website of the NYS Office of the Medicaid Inspector General (OMIG). http://ow.ly/NPWu1
 
There is no statutory requirement to check the LEIE. However, to avoid CMPs it is strongly recommended that professional practices check the LEIE and the OMIG Terminations and Exclusions databases to determine the exclusion status of potential and current employees and contractors. The OIG and OMIG maintain tools that make it available to health care professionals to identify the exclusion status of individuals and entities, and, accordingly, it is unlikely that a professional practice subject to CMP liability could plead “I did not know”.
 
 
 

Kern Augustine Conroy & Schoppmann, P.C., Attorneys to Health Professionals, DrLaw.com, is solely devoted to the representation of physicians and other health care professionals. The author of this article may be contacted at 1‐800‐445‐0954 or via email at DMoy@DrLaw.com