OIG Exclusion List: Your Duty to Know
Health care providers that bill Medicare and Medicaid have an affirmative duty to know whether its employees or independent contractors are excluded by the OIG from participating in the federal health care programs.[i]
If a health care provider employs or contracts with someone on the OIG Exclusion List, “no payment will be made by Medicare, Medicaid or any of the Federal health care programs…for any item or service furnished” by the excluded individual.[ii] Even individuals in administrative positions need to be checked against the OIG Exclusion List, since the exclusion “applies regardless of who submits the claims and applies to all administrative and management services furnished by the excluded person.”[iii]
If a health care provider makes a claim to the Federal health care program for an item or service furnished by an excluded individual, then the provider is subject to a penalty pursuant to the Civil Monetary Penalties Act (the “CMP”).
Not only must a health care provider repay monies received based on an items or services furnished by an excluded individual,[iv] but the CMP allows a penalty of up to $10,000 for each excluded claim plus a penalty of up to “three times the amount for each item or service wrongfully claimed.”[v] The standard for liability is whether the provider “knew, or should have known” that the individual was excluded from the Federal health care program.[vi] Because of the access to the OIG’s Exclusion List online, it is virtually impossible for a health care provider to successfully argue that it did not “know” or that it “should not have known” that an employee was excluded from the Federal health care program.
Conduct these searches carefully, as someone who is on the OIG Exclusion List may not be eager to disclose this fact—especially in these economic times.
Based on the above, health care providers are highly encouraged to check all new hires and independent contractors against the OIG Exclusion List, regardless of their position, as well as checking all existing employees and independent contractors. You may want to make this a monthly search. Additionally—document each search, either by electronic record or in writing, so that efforts of good faith compliance may be easily proven.
Quick Tips for an Exclusion List Search
The OIG offers the following “Quick Tips” on conducting an accurate search of the OIG Exclusion List. From www.oig.hhs.gov/exclusions/tips.asp:
- Because the databases include only the name known to the 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).
- When you check the LEIE, using the Online Searchable Database or the Downloadable Data file, you should maintain documentation of the initial name search performed and any additional searches conducted in order to verify results of potential name matches.
- If you are checking only a few names, choose the Online Searchable Database. You can search up to five names at once.
- If you are checking many names, consider downloading the Downloadable Data File into your computer’s spreadsheet or database program. This will enable you to use that program’s search functions to crosscheck your names against the thousands of names on the LEIE.
- Be sure to double-check that you have the correct spelling of any names before starting your search.
- In order to achieve the most accurate search results, enter only the first few letters of the name.
- Do not forget to take the final step of identity verification using the Social Security Number (SSN) for an individual or Employer Identification Number (EIN) for an entity. It is not sufficient to simply find a matching first and last name on the LEIE.
- If you find a potential match using the Downloadable Data file, you must still verify the results by entering the SSN for an individual or EIN for an entity on the Online Searchable Database. (Note: The Privacy Act prohibits the distribution of SSNs so they cannot be included in the Downloadable Data file).
- If a search result does not contain a DOB, UPIN, NPI, EIN, or SSN, it is not available from the OIG. Contact the Exclusions Staff to determine if there is any other information available.
[i] See The Effect of Exclusion From Participation in Federal Health Care Programs, Special Advisory Bulletin, Sept. 1999 (by the OIG), page 4.
[ii] See 42 C.F.R. §1001.1901(b)(1).
[iii] See The Effect of Exclusion From Participation in Federal Health Care Programs, Special Advisory Bulletin, Sept. 1999 (by the OIG).
[iv] Payment for items or services furnished by an excluded individual is considered overpayment.
[v] See 42 C.F.R. §1003.103 and 42 C.F.R. §1003.104.
[vi] See 42 CFR §1003.102(a)(2), which provides as follows:
(a) The OIG may impose a penalty and assessment against any person whom it determines in accordance with this part has knowingly presented, or caused to be presented, a claim which is for–
(2) An item or service for which the person knew, or should have known, that the claim was false or fraudulent, including a claim for any item or service furnished by an excluded individual employed by or otherwise under contract with that person…. [Emphasis Added].