The Basics of OIG Background Checks
The Office of the Inspector General maintains the List of Excluded Individuals and Entities (LEIE), keeping track of – as the name suggests – those individuals and entities who are excluded from working with federal healthcare programs. If you own or manage a healthcare-related company in the United States, you are therefore well advised to conduct OIG background checks for any potential new hire against the LEIE, lest you be liable for hiring someone on the exclusion list. Similarly, you will want to check the LEIE before employing new hires or contracting new workers, and periodically check the LEIE to determine the exclusion status of current employees and contractors and avoid CMP liability. Note that not only are you at risk of liability for employing (or contracting) anyone on the exclusion list who is directly involved in patient care, but also those excluded parties who are indirectly connected to patients, such as those involved in administrative or management services, are also a liability to the employer.
Who is on the OIG Exclusion List?
One may be excluded for any number of reasons, only some of which require a “mandatory exclusion.” The exclusions that are required by law include anyone who has been convicted of certain criminal offenses, such as Medicare or Medicaid fraud, other healthcare related fraud or financial misconduct; felony conviction, especially pertaining to illegal manufacture and/or distribution of controlled substances; and patient neglect or abuse.
The scope of the OIG’s exclusions goes beyond the above, as mandated by law, as the Office is authorized to use its discretion to bring about “permission exclusions,” decided on a case-by-case basis. Permission exclusions might exclude those individuals (or entities) who have been convicted, for example, of non-healthcare fraud; misdemeanor convictions pertaining to the illegal manufacture and/or distribution of controlled substances; suspended or revoked licenses for concerns of professional competence; unlawful kickback arrangements; defaulting on a health care education loan; and more.
These exclusions limit the individuals and entities who may be hired for a federal healthcare program, but the same individuals and entities may prove invaluable in the private sector – the LEIE is a standard of behavior and ethics that surpasses the bottom line of legal compliance. Indeed, exclusions by the federal government are legally authorized by sections 1128 and 1156 of the Social Security Act.
The difference between mandatory and permission exclusions pertains simply to whether the OIG is required to exclude the individuals or entities, or whether they have the discretion to decide. Once the exclusion is in effect, however, the given individual or entity is no longer permitted to participate in federal healthcare programs – for the duration of the exclusion. Those federal healthcare programs include Medicare, Medicaid, block grants for state social services, state health insurance programs for children, and the like.
Using the OIG Exclusion List
Practically speaking, when it comes time to conduct an OIG check of your employees and pre-hires, keep in mind the differences between LEIE, the Excluded Parties List System, and SAM.gov (System for Awards Management). LEIE is comprehensive and user-friendly, but the advantages of EPLS and the SAM.gov – System for Awards Management is that it compiles all exclusions of multiple federal agencies and allows you to search for them through one interface.
If and when you discover the employee you are screening in one federal exclusion database or another, make sure that his or her services are not being billed to Medicare, Medicaid or any other federal program.
Note that if you need or want to screen for federal exclusions manually, the OIG makes the resources to do so available. Specifically, download the LEIE database (hosted on the OIG website), and simply search for the names you wish to check. Another way of screening is via the web portal (basically, click and search).
Penalties for Non-Compliance
Before you are too quick to reject the exclusion standards, be aware that if you hire someone who is on an exclusion list, or if one of your employees is placed on the exclusion list – even if the reason for the exclusion is permissive, and not mandatory – you or your firm can be fined from $10,000 to $250,000 per incident. Note that the federal government does not look kindly on “I didn’t know,” as an excuse for non-compliance. Verify your employees’ status with regular (preferably monthly) checks as recommended by the CMS.
An important aside is that when you do return to the LEIE database to verify your employee’s status, be sure to update it manually. You access the LEIE via a downloaded version that is stored on your own computer, and you will need to update it to be sure your screening checks are accurate. Monthly updates are recommended – and you can stay current on LEIE updates and changes by signing up for OIG email notifications. If your company does not have the resources to update LEIE on a monthly basis, you may find Streamline Verify’s exclusion software particularly useful. Streamline Verify enables healthcare organizations to check the LEIE, SAM.gov, all existing state databases, plus countless others for both potential and existing employees quickly and easily.
Other resources and training programs and training programs are also available through the Office of the Inspector General to ensure that companies are in compliance with federal laws. Use them when it comes to your next OIG check.