The exclusion and payment prohibition continue to apply to an individual even if he/she changes from one health care profession to another while excluded. The prohibition on payment for items or services furnished by an excluded individual includes items and services beyond direct patient care. The prohibition applies to services performed by excluded individuals who work for or under an arrangement with a hospital, nursing home, home health agency or other health care provider entity regardless of whether such services are separately billable or are included in a bundled payment. Excluded persons are prohibited from providing transportation services that are paid for by a Federal health care program, such as those provided by ambulance drivers or ambulance company dispatchers.
Excluded persons are prohibited from furnishing administrative and management services that are payable by Medicare, Medicaid or other federal health care program. This prohibition applies even if the administrative and management services are not separately billable. An excluded individual may not serve in an executive or leadership role (e.g., chief executive officer, chief financial officer, general counsel, director of health information management, director of human resources, physician practice office manager, etc.) at a provider that furnishes items or services payable by Federal health care programs. Nor may an excluded individual provide other types of administrative and management services, such as health information technology services and support, strategic planning, billing and accounting, staff training, and human resources, unless wholly unrelated to federal health care programs. Finally, a business entity which furnishes health care services or items may not bill Medicare, Medicaid or other Federal health care program if an excluded individual, or a specified family member or household member, has an ownership interest of 5% or more in the entity.
Any items and services furnished at the medical direction or on the prescription of an excluded person are not payable when the person actually furnishing the items or services either knows or should know of the exclusion. This prohibition applies even when the federal payment itself is made to a provider that is not excluded. For example, laboratories, imaging centers, durable medical equipment suppliers and pharmacies will not be entitled to payment by Medicare, Medicaid or other federal health care program, and may even be liable to a civil monetary penalty of up to $10,000, if the order or prescription was written by an excluded physician.
To avoid liability under the Civil Monetary Penalty Law, health care providers need to check, on a monthly basis, OIG’s List of Excluded Individuals and Entities (LEIE), to ensure that the provider is not billing Medicare or Medicaid, directly or indirectly, for services or items provided by an excluded individual or entity. The provider is required to check his/her employees (both licensed and unlicensed), contractors and vendors. Because the provider can be liable if he or she “knew or should have known” of the exclusion, the failure to check OIG’s website, which contains public record information, will inevitably lead to a CMP.
A person or entity which violates the exclusion, either by providing services or items during the period to impose exclusion, or by employing or contracting with an excluded person or entity, may be subject to a civil monetary penalty of $10,000 for each claimed item or service and may be subject to an assessment of up to three times the amount claimed for each item or service. The assessment will be reduced if the provider self-discloses. Exclusion violations may lead to criminal prosecutions under the Health Care Fraud statutes or civil actions under the False Claims Act.
All exclusions implemented by OIG may be appealed to an HHS Administrative Law Judge, and any adverse decision may be appealed to the HHS Departmental Appeals Board. OIG’s determination of a permissive exclusion is not reviewable, although the length of the exclusion is. Judicial review in Federal court is also available after a final decision by the Departmental Appeals Board.
Mark Greenberg can help the health care provider limit the imposition and effect of any permissive exclusion proposed by OIG, and help the provider obtain reinstatement after the period of exclusion has ended. The provider must apply for reinstatement with OIG. Mark Greenberg can help the provider obtain reinstatement after the period of exclusion has ended.