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Avoiding CMP Liability: Don’t Let Excluded Persons Trip You Up

Posted in Regulations

The OIG released the Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in the Federal Health Care Programs last week.  The prior Bulletin from 1999 left many unanswered questions, such as the scope of a provider’s obligation to screen employees and contractors and how a provider discloses to the OIG when it discovers that it has employed or contracted with an excluded entity or person.  This latest bulletin provides a laundry list of recommended “best practices” when it comes to screening and re-screening employees and contractors, and the bulletin directs providers to use the OIG’s self-disclosure protocol to report employment of or contracting with an excluded person.

The OIG’s best practices guidance includes the following:

  • Use the OIG’s List of Excluded Individuals and Entities (LEIE). The LEIE has undergone extensive updates and revisions in the past several years to make it a more user-friendly experience and a more efficient process for providers to check.
  • Screen Early and Often.  Providers should check the LEIE prior to employing or contracting with persons and periodically check the LEIE (the OIG recommends checking the LEIE monthly) to determine the exclusion status of current employees and contractors. 
  • Cast a Broad Net.  The OIG recommends that providers frequently inventory contractual arrangements to determine whether the entity and/or persons providing the items or services should be screened.  If an item or service being provided is directly or indirectly, in whole or in part, payable by a Federal health care program (or if the entity or person directs the provision of items or services payable by a Federal health care program), then the best mechanism for limiting civil monetary penalty (CMP) liability is to screen all persons that perform under that contract or that are in that job category. 
  • Double-Check Contractors. The OIG recommends that providers screen everyone – even nurses provided by a staffing agency.  However, if the entity providing the individuals is contractually responsible for screening, the OIG recommends, at the very least, that providers validate that the contractor is conducting such screening on behalf of the provider (e.g., by requesting and maintaining screening documentation from the contractor).
  • The LEIE is the Best Resource.  Although providers may choose to check the General Services Administration’s System for Award Management and other systems that report sanctions or adverse actions taken with respect to health care practitioners (e.g., the National Practitioner Data Bank) to obtain information about other types of sanctions reported in that database, the OIG recommends that providers use the LEIE as the primary database for purposes of exclusion screening for potential and current employees and contractors.

In light of the possibility of the imposition of CMPs against providers that employ or enter into contracts with excluded persons, providers should take note of the OIG’s latest guidance and consider updating their screening policies and procedures.