OIG Releases Exclusion Guidance

Health & Human Services Office of Inspector General (OIG) recently released Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs, which is OIG’s first published guidance on “exclusions” since 1999.  By way of background, the effect of an OIG exclusion is that no federal health care program (e.g., Medicare or Medicaid) may pay for items or services 1) furnished by an excluded person, or 2) directed or prescribed by an excluded person. The new guidance emphasizes that the payment prohibition applies to all methods of federal health care program payment, whether from itemized claims, cost reports, fee schedules, capitated payments, a prospective payment system or other bundled payment, or other payment system and applies even if the payment is made to a state agency or a person that is not excluded.

Under the federal civil monetary penalty (“CMP”) rules, a provider may be liable for up to $10,000 for each item or service furnished, directly or indirectly, by an excluded person, and up to three times the total amount claimed for such items or services. The new guidance casts the exclusion net very wide, offering examples of a number of excluded individuals with indirect relationships to providers to which the prohibition applies, including health care professionals that volunteer at hospitals or skilled nursing centers.  The new guidance also provides guidance regarding best practices for screening current and potential employees and contractors for excluded status. OIG recommends searching the OIG-administered List of Excluded Individuals and Entities (“LEIE”) prior to hiring or contracting with an individual or company. OIG also suggests that providers review LEIE for current contractors and employees on a monthly basis, for any job category or contractual relationship where the item or service being provided is payable by a Federal health care program. OIG also cautions against relying on other databases, such as the GSA’s System for Award Management (“SAM”) or the National Practitioner Database, as a provider’s primary source for exclusion screening.  To obtain the OIG guidance click here.