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OIG Clarification on Medicare Exclusion Process

On May 8, 2013, the Office of Inspector General ("OIG") issued an Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs. Previously, the only official guidance from OIG on the scope and effect of its exclusion from participation was published in its 1999 Special Advisory Bulletin, which the Updated Bulletin replaces and supersedes. An OIG exclusion is a legal prohibition on payment by Federal health care programs, such as Medicare and Medicaid, for items or services furnished by (1) an excluded person or (2) at the medical direction or on the prescription of an excluded person. This prohibition extends beyond direct patient care and reaches administrative and management services payable by Federal health care programs.

In the Updated Bulletin, OIG provides guidance to the health care industry on the scope and frequency of screening employees to determine whether they are excluded persons, describes how exclusions can be violated, and discusses the administrative sanctions that it can pursue against those who have violated an exclusion, as well as other forms of criminal and civil liability that may result from a violation. If a health care provider contracts with a person it knows or should know is excluded by OIG, then it may be subject to civil money penalties if the excluded person provides services payable, directly or indirectly, by a Federal health care program. To ensure that providers do not arrange or contract with excluded persons, OIG recommends that they routinely check the List of Excluded Individuals and Entities ("LEIE"), which is available on OIG's website. The LEIE is updated monthly, and although there is no statutory or regulatory requirement to check the LEIE, OIG recommends that providers screen all employees and contractors each month to best avoid liability. According to OIG, providers should conduct the screening; however, they may rely on screening conducted by contractors, in which case providers should request and maintain screening documentation from the contractor. Regardless of the screening entity, providers may be held liable for exclusion violations.

For a detailed explanation of the scope and effect of OIG exclusions, see the entire Updated Bulletin or contact David Marshall.

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