The Office of Inspector General (OIG) for the Department of Health and Human Services (HHS) plays a critical role in protecting federal health care programs from fraud and abuse. A key tool in this effort is the authority to exclude individuals and entities from participating in these programs. This article delves into who can be excluded, the reasons for exclusion, and the implications for both providers and the integrity of federal healthcare.
The OIG maintains the List of Excluded Individuals and Entities (LEIE), a publicly available database of individuals and entities currently excluded from participation in all Federal health care programs, including Medicare and Medicaid. This exclusion authority is granted under Section 1128 of the Social Security Act, and Section 1156 extends this to Medicare and State health care programs. Hiring or contracting with an individual or entity on the LEIE can result in significant civil monetary penalties (CMPs) for healthcare organizations.
Exclusions fall into two primary categories: mandatory and permissive, each triggered by different circumstances and offenses.
Mandatory Exclusions: Crimes That Trigger Automatic Exclusion
The OIG is legally obligated to impose mandatory exclusions for convictions related to certain serious offenses. These mandatory exclusions are not discretionary and are triggered automatically upon conviction of the following:
- Medicare or Medicaid Fraud: This includes any criminal offense related to fraud against Medicare or Medicaid programs, reflecting the government’s commitment to protecting these vital programs from financial exploitation.
- Offenses Related to Healthcare Delivery: Crimes related to the delivery of items or services under Medicare, Medicaid, SCHIP (State Children’s Health Insurance Program), or other State health care programs also result in mandatory exclusion. This broad category ensures that individuals who abuse their positions within these systems are barred from further participation.
- Patient Abuse or Neglect: Conviction for patient abuse or neglect is a mandatory exclusion offense, underscoring the priority of patient safety and well-being within federal health care programs. Such convictions demonstrate a fundamental breach of trust and professional responsibility.
- Felony Convictions for Healthcare-Related Fraud, Theft, or Financial Misconduct: Beyond Medicare and Medicaid fraud, felony convictions for other types of health care-related fraud, theft, or financial misconduct also mandate exclusion. This provision covers a wide range of financial crimes within the healthcare sector.
- Felony Convictions Related to Controlled Substances: Felony convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances trigger mandatory exclusion. This reflects the serious public health concerns associated with illegal drug activities and their intersection with healthcare.
Permissive Exclusions: Discretionary Authority for a Range of Misconduct
In addition to mandatory exclusions, the OIG has discretionary authority to impose permissive exclusions for a broader range of infractions. Permissive exclusions allow the OIG to address conduct that, while perhaps not triggering automatic exclusion, still poses a risk to federal health care programs and beneficiaries. Grounds for permissive exclusion include, but are not limited to:
- Misdemeanor Convictions Related to Healthcare Fraud (Non-Medicare/Medicaid): While felony healthcare fraud triggers mandatory exclusion, misdemeanor convictions related to health care fraud outside of Medicare or State programs can lead to permissive exclusion.
- Fraud in Other Federal, State, or Local Programs: Fraudulent activities in any program funded by a Federal, State, or local government agency, even if not health care related, can be grounds for permissive exclusion, demonstrating a broader concern for integrity in government programs.
- Misdemeanor Convictions Related to Controlled Substances: Similar to felonies, misdemeanor convictions relating to unlawful handling of controlled substances can also result in permissive exclusion.
- License Suspension, Revocation, or Surrender: If a health care professional’s license to provide care is suspended, revoked, or surrendered due to concerns about professional competence, performance, or financial integrity, this can lead to permissive exclusion. This ensures that individuals deemed unfit to practice are also excluded from federal programs.
- Provision of Unnecessary or Substandard Services: Providers who furnish unnecessary or substandard services may be permissively excluded, protecting beneficiaries from poor quality care and program funds from being wasted.
- Submission of False or Fraudulent Claims: Submitting false or fraudulent claims to a Federal health care program, even if not resulting in a criminal conviction, is grounds for permissive exclusion.
- Engaging in Unlawful Kickback Arrangements: Participating in unlawful kickback schemes, which can corrupt medical decision-making, can lead to permissive exclusion.
- Defaulting on Health Education Loan or Scholarship Obligations: Defaulting on obligations related to health education loans or scholarships can also result in permissive exclusion, encouraging fiscal responsibility within the healthcare workforce.
- Controlling a Sanctioned Entity: Individuals who are owners, officers, or managing employees of an entity that has been sanctioned can also be permissively excluded, preventing individuals from circumventing sanctions by operating through different entities.
Consequences of Exclusion and Importance of LEIE Checks
The primary effect of exclusion is that no federal health care program payment will be made for any items or services furnished, ordered, or prescribed by an excluded individual or entity. This prohibition extends across Medicare, Medicaid, and all other federal programs providing health benefits.
To avoid CMP liability and ensure compliance, healthcare entities must routinely check the LEIE before hiring and periodically for current employees and contractors. This proactive measure is essential for maintaining program integrity and avoiding penalties.
It is important to note that receiving a Notice of Intent to Exclude (NOI) is not a final exclusion. The OIG carefully reviews all information submitted by the individual or entity in response to the NOI before making a final decision. Individuals and entities facing exclusion have the right to appeal OIG’s decision to an HHS Administrative Law Judge (ALJ), with further appeals possible to the HHS Departmental Appeals Board (DAB) and ultimately to Federal court.
In conclusion, understanding Who Can Be Excluded From Federal Health Care Programs is crucial for all participants in the healthcare industry. The OIG’s exclusion authority serves as a vital safeguard, protecting program beneficiaries and taxpayer dollars from fraud, abuse, and misconduct. Regular verification against the LEIE is not just a best practice, but a necessity for responsible and compliant participation in federal health care programs.
