Exclusion, Termination, and the OIG

This blog was originally published on November 2, 2020. 

A full understanding of the healthcare screening industry depends to a large degree on properly defining key terms like exclusion, sanction, and termination. The nuances that distinguish these terms from one another are technical but important for CRAs to identify as they help employers in the healthcare industry find and retain talented professionals.

A healthcare sanction is the result of an administrative hearing where an individual or entity is found to be in violation of an administrative rule, civil law, or criminal offense, leading to various kinds of penalties. Healthcare sanctions are enforced by the Office of the Inspector General (OIG) in the U.S. Department of Health and Human Services or a state Medicaid program. An exclusion is one of several possible results of an OIG sanction in any federal or state funded healthcare program like Medicare or Medicaid. Additional actions against the excluded party may include: license restrictions, license revocation, suspension, or voluntary surrender of license.

There are also two different kinds of exclusions enforced by the OIG: mandatory exclusions – such as conviction of patient abuse or neglect or felony conviction relating to healthcare fraud – and permissive exclusions – such as defaulting on student loans or a misdemeanor conviction related to healthcare fraud. However, a third category exists that is distinct from healthcare exclusions: termination.

Excluded in One State, Excluded in All States

Termination does not mean the same thing as exclusion. According to a Centers for Medicare and Medicaid Services bulletin, “termination” occurs when the state terminates the participation of a Medicaid or Children’s Health Insurance Program (CHIP) provider from the program or when the Medicare program has revoked a Medicare provider or supplier’s billing privileges and the provider can no longer appeal. This means a provider could be terminated by the state and still theoretically work at healthcare organizations as long as they don’t provide services billable by Medicare.

Exclusion from participation in a federal healthcare program – including Medicare, Medicaid, CHIP, and TRICARE – is a penalty imposed on providers by the OIG. When excluded by the OIG, it becomes challenging for providers to continue practicing at all, since it is much more difficult to ensure they are utilizing any federal healthcare programs.

While technically different situations, the result is the same: a provider’s involuntary departure from the Medicaid program or CHIP. If a provider is terminated in one state, then all other states must also terminate, and the duration of the termination should follow the terminating state’s law. For example, if one state terminates a provider for three years, a termination action is triggered in every other state as a result of the first state’s termination action. This means employers in the healthcare industry are accountable to the state and the OIG for any sanctions, exclusions, or terminations on their employee roster.

Best Practices for OIG Compliance

When a healthcare organization is found to not be in compliance with laws or regulations from the state or the OIG, corporate integrity agreements (CIAs) and civil monetary penalties (CMPs) may be the unintended consequences.

The OIG maintains a list of all currently excluded individuals and entities called the List of Excluded Individuals/Entities (LEIE).  Anyone who hires an individual or entity on the LEIE may be subject to civil monetary penalties (CMPs).  To avoid CMP liability, healthcare entities should routinely check the list to ensure that new hires and current employees are not on it.

The following best practices will help organizations validate appropriate, actionable data they retrieve from the LEIE:

• The LEIE database is updated on a monthly basis so monitoring should occur at least monthly.
   

• Because the OIG Database includes only the name known to OIG at the time the individual was excluded, any former names used by the individual (e.g., maiden name, previous married name, etc.) should be searched in addition to the individual’s current name.
   

• An individual with a hyphenated name should be checked under each of the last names in the hyphenated name (e.g., Jane Smith-Jones should be checked under Jane Smith and Jane Jones, in addition to Jane Smith-Jones).
   

• An organization should maintain documentation of the initial name search performed and any additional searches conducted in order to validate results of potential name matches.
   

• Always remember to take the final step of identity validation using the Social Security Number (SSN) for an individual or Employer Identification Number (EIN) for an entity if available. It is not sufficient to simply find a matching name on the LEIE.
   

• If a search result does not contain a DOB, UPIN, NPI, EIN, or SSN, it is not available from OIG. Organization may contact the OIG Exclusions Branch to determine if there is any other information available.
   

• The OIG recommends that to determine which persons should be screened against the LEIE, the provider should review each job category or contractual relationship to determine whether the item or service being provided is directly or indirectly, in whole or in part, payable by a Federal health care program. If the answer is yes, then the best mechanism for limiting CMP liability is to screen all persons that perform under that contract or that are in that job category.  Providers should determine whether or not to screen contractors, subcontractors, and the employees of contractors using the same analysis that they would for their own employees.
   

The most common kind of exclusion by the OIG is the revocation of a healthcare professional’s license – a sanction that occurs on the state level. There is no national database that keeps track of license revocations, so in some cases, even individuals who have had their licenses revoked in one state move elsewhere and continue to practice, putting their employer and patients at risk. In an upcoming blog post, we will explore how CRAs can utilize the exclusion database provided by the OIG to help healthcare organizations keep their employee rosters free of excluded practitioners.