MANAGING THROUGH AN EXCLUSION BY THE OIG

Posted by Joe Stefansky on June 1, 2021 in Exclusion Reinstatement,

AN OVERVIEW of THE OIG’S LIST OF EXCLUDED INDIVIDUALS AND ENTITIES

Since 1977, the federal government has maintained a list of individuals and entities that are excluded from participation in any federal health care program for a variety of reasons, including committing fraud, abuse or other offenses against patients and programs. This database, known as the List of Excluded Individuals/Entities (LEIE),  is managed by the Office of the Inspector General (OIG) at Health and Human Services (HHS) and is updated monthly. This is the definitive list of exclusions levied by the OIG and is the ultimate form of sanction by the OIG.

The LEIE was created to assure the integrity of federal healthcare programs such as Medicare and Medicaid. The purpose of the LEIE is two-fold: (a) to entrust the care of Medicare and Medicaid patients to high quality providers and suppliers and (b) to prevent any federal funds from flowing to individuals or entities that had breached that trust. To ensure that the intent of the LEIE is met, federal and state health care contractors are required to regularly review this list to avoid hiring or retaining individuals who had committed serious crimes against federal programs or against individuals who were enrolled in federal health care programs. Checking the LEIE can be done by using the OIG portal or by downloading the LEIE database to perform an OIG check or OIG search.

TYPES OF EXCLUSIONS

As set forth by the OIG, two types exclusions are imposed for a number of reasons:

Mandatory Exclusions

OIG is required by law to exclude from participation in all Federal health care programs individuals and entities convicted of the following types of criminal offenses:

  • Medicare or Medicaid fraud, as well as any other offenses related to the delivery of items or services under Medicare, Medicaid, SCHIP, or other State health care programs;
  • patient abuse or neglect;
  • felony convictions for other health care-related fraud, theft, or other financial misconduct; and
  • felony convictions relating to unlawful manufacture, distribution, prescription, or dispensing of controlled substances.

Permissive Exclusions

OIG has discretion to exclude individuals and entities on a number of other grounds including:

  • misdemeanor convictions related to health care fraud other than Medicare or a State health program;
  • misdemeanor convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances;
  • suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity;
  • provision of unnecessary or substandard services;
  • submission of false or fraudulent claims to a Federal health care program;
  • engaging in unlawful kickback arrangements;
  • defaulting on health education loan or scholarship obligations; and
  • controlling a sanctioned entity as an owner, officer, or managing employee.

THE IMPACT OF BEING EXCLUDED:

Those who are excluded can receive no payment from federal healthcare programs for any items or services they furnish, order, or prescribe. This prohibition extends beyond the excluded person or entity, to their employer who receives federal health care funds. It does not matter who submits the claims for the excluded individual’s services. Therefore, anyone who hires or retains an individual or entity on the LEIE may be subject to civil monetary penalties (CMP).

The exclusion follows the person so changing jobs in the healthcare industry will not allow an individual to avoid the effect of exclusion while working in the healthcare industry. They are prohibited from working for any organization that receives federal healthcare program reimbursement, directly or indirectly, in any capacity. Also, this prohibition does not apply to just direct care positions – an excluded individual is also prohibited from acting in an administrative, clerical or managerial role in an organization receiving federal health care payments during the period of exclusion.

MANAGING THROUGH AN EXCLUSION

For providers who are on the LEIE, it is critical to know how to be removed from the list after the period of exclusion has expired. Below are the stages of the process, from the OIG’s Notice of Exclusion through reinstatement.

  1. KNOW YOUR STATUS – CHECK THE LEIE REGULARLY

    The OIG does not issue warnings or notifications about excluded individuals and entities. It is in the best interests of the provider to check his own status. It is a requirement that health care employers search the LEIE regularly to confirm that their practitioners or potential new hires are not on it.

    To erase any doubt as well as avoid risky transactions if included in the LEIE, it should be standard operating procedure for health care employers to regularly screen their employees, providers, vendors and contractors against the federal and state exclusion lists.  This can be accomplished by running checks using the OIG’s Online Searchable Database or by engaging a third party such as Streamline Verify to screen these lists. Since the OIG updates the Exclusion List monthly, the OIG expects monthly OIG checks against the updated Exclusion List by entities who receive reimbursement, directly or indirectly, from federally funded healthcare programs.
  2. OIG NOTICE REQUIREMENTS – KNOW THE LAW

    If an individual and/or entity receives a Notice of Intent to Exclude from the OIG, keep in mind that according to the OIG, it does not necessarily mean they will be excluded. The OIG will carefully consider all information before making a decision. If a provider or entity receives an OIG Notice of Intent to Exclude or a Notice of Exclusion, seeking the advice of an attorney who has experience
    1. For mandatory exclusions, the notice requirements differ by the length of the exclusion period.:
      1. For proposed mandatory exclusions that are longer than the mandatory minimum five-year period, the OIG sends out a written Notice of Intent to Exclude (NOI) to the subject person or entity. The NOI includes the basis for the proposed exclusion and a statement about the potential effect of an exclusion.
        1. The recipient then has 30 days to submit information/evidence to contest that the exclusion is warranted and to raise any other related issues, such as mitigating circumstances.
        2. If an individual or entity receives a Notice of Intent to Exclude from the OIG, keep in mind, that according to the OIG, it does not necessarily mean they will be excluded. The OIG will carefully consider all information before making a decision.
      2. For mandatory exclusions that are for the minimum five-year period, the OIG may not send a NOI. For these exclusions, a Notice of Exclusion is the first notification sent.

        Exclusions are effective 20 days after the Notice of Exclusion is mailed, and notice to the public is provided on OIG’s website. The exclusion may be appealed to an administrative law judge, and any adverse decision may be appealed to the Departmental Appeals Board (DAB). Judicial review is also available after a final decision by the DAB.
    2. For permissive exclusions, notice requirements can differ by statutory basis for the exclusion:
      1. For most permissive exclusions, the OIG sends out a written Notice of Intent to Exclude (NOI) to the subject person or entity. The NOI includes the basis for the proposed exclusion and a statement about the potential effect of an exclusion.
        1. The recipient then has 30 days to submit information or evidence to contest that the exclusion is warranted and to raise any other related issues, such as mitigating circumstances.
        2. When a permissive exclusion is being considered, the NOI allows the individual or entity to request an opportunity to present oral argument to an OIG official before a decision about whether to exclude is reached. This is in addition to the right to submit documentary evidence and written argument.
      2. When a permissive exclusion is imposed under sections 1128(b)(12) or (b)(13) of Social Security Act, OIG is not required to send a NOI.  Instead, the individual or entity receives a Notice of Exclusion along with information about the effect of the exclusion and appeal.
        1. An exclusion under section 1128(b)(12) is effective immediately;
        2. An exclusion under section 1128(b)(13) is effective 20 days after the Notice of Exclusion is mailed.

          Permissive exclusions may be appealed to an administrative law judge, and any adverse decision may be appealed to the Departmental Appeals Board (DAB). Judicial review is also available after a final decision by the DAB.
  3. UNDERSTANDING PERIODS OF EXCLUSION
    1. Mandatory Exclusions:
      OIG is required by law to exclude from participation in all Federal health care programs individuals and entities convicted of the criminal offenses set by statute. The minimum exclusion periods are also set by federal law:
      1. An initial conviction requires exclusion for 5 years.
      2. Being convicted of a second mandatory offense can result in exclusion for 10 years.
      3. A third conviction will result in permanent exclusion from Medicare, Medicaid and federal healthcare programs.
    2. Permissive Exclusions:
      The OIG has significant discretion on grounds for permission exclusion and the duration of exclusion. A permissive exclusion can generally result in between 1 to 3 years on the OIG Exclusion List. However, for a case that falls under a permissive exclusion, the OIG may impose a different period depending on the severity of the matter.  
  4. DO NOT FORGET STATE EXCLUSION & MEDICAL SANCTION LISTS

    Removal from the OIG federal exclusion list may not trigger removal from state Medicaid exclusion lists.  Note that state medical licensing boards can issue a healthcare provider with a license number prior to the completion of the OIG reinstatement process but that does not clear a provider for participation in federal health care programs again. You must check state exclusion databases to verify your reinstated status.  Providers may resume participation in federal health care programs only after the OIG approval for reinstatement is received, the person is no longer listed in the LEIE and any state exclusion is lifted.  

    The road back from an OIG exclusion can be arduous and long but for many providers who are reinstated, the professional dislocation caused by exclusion can be put behind then with time and a proactive approach.

How to Get Off the OIG Exclusion List?

Being on the LEIE is not permanent. Upon expiration of the exclusion period, LEIE will no longer list the excluded individual or entity. However, reinstatement is not automatic; the individual or entity must apply for reinstatement and receive written notice from OIG that reinstatement has been granted.

The OIG provides a process whereby an excluded provider may be reinstated and can resume participation in a federal health care program.  Providers do not have to wait until the end of their exclusion period to being the reinstatement process – they can apply 90 days prior to the end of the period. However, earlier requests for reinstatement will not be considered.

To apply for reinstatement:

  1. Send a written request containing:
    1. Individual’s or entity’s full name (if excluded under a different name, also include that name)
    2. Date of birth for an individual
    3. Telephone number
    4. Email address
    5. Mailing address
  2. Fax or email the request to the OIG at (202) 691-2298 or sanction@oig.hhs.gov.
  3. If eligible, the OIG will send statement and authorization forms. Complete the form with proper notarization and return them to the OIG.

Once the statements and authorization forms have been assessed, the OIG will send a written notice of reinstatement or denial. This process can take 120 days or more. If you are denied however, you will need to wait a full year before initiating the process again.

Even when a provider’s term of exclusion has ended, it is still possible that he or she may still be on the OIG Federal exclusion list or even other State exclusion databases. You must check the LEIE to verify your status. While you are on the LEIE, you cannot participate in a federal healthcare program.

About Joe Stefansky

About Joe Stefansky

Joe Stefansky has a keen sense of business opportunities in complex problems, using technology to transform difficulty into efficiency. The CEO and founder of Streamline Verify specializes in solving compliance, legal and administrative issues through intuitively designed software that reduces costs and saves time.

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