October 18, 2011 | Comments Off on OIG Exclusion List Updated
Posted by Sharlene Hunt
Earlier this month, the Office of the Inspector General (“OIG”) of the U.S. Department of Health and Human Services updated its List of Excluded Individuals and Entities (LEIE). This announcement should serve as a reminder to all Medicare providers to check their employees and contractors against the LEIE database to make sure they have not been excluded from the Medicare and Medicaid programs.
Under federal law, if an individual becomes excluded under any federal program, including Medicare and Medicaid, then the federal government will not pay reimbursement to anyone for services provided by the excluded individual. The government has previously indicated that this title applies not only to clinical services but also to administrative services provided by excluded individuals, including billing and claims processing. Since the government will not pay for any services where an excluded individual provided services, and the government has imposed an affirmative duty on providers to check the exclusion status of their employees, it is important to take the steps necessary to confirm that none of your employees or contractors are on the LEIE.
To the extent your employees or contractors are excluded individuals, the federal law authorizes the government to impose civil money penalties against a health care provider. At the annual American Health Lawyers Association meeting in Boston last summer, a representative of the government indicated that 36% of the self-disclosures made to the OIG by health care providers under the OPG Self-Disclosure Protocol are based on health care providers employing excluded individuals. Health care providers can use the Self-Disclosure Protocol to try to avoid some of the penalties that may be imposed if the government discovers wrongdoing that was not self-disclosed.
To the government, these cases are “low lying fruit”, because it is easy to prove that the individual was on the LEIE, and the government does not have to prove an intent to defraud on the part of the provider as it would in a case under the antikickback statute. These cases may be prosecuted under the False Claims Act as an illegal retention of an overpayment the provider should not have received. Thus, there are potential criminal penalties, as well as civil penalties, which may be imposed on the unwary provider who does not check the status of their employees and contractors against the LEIE.