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OIG Publishes Updated Special Advisory Bulletin on the Effect of Exclusion from Federal Healthcare Programs

Last week, The U.S. Department of Health & Human Services, Office of Inspector General (OIG) published an “Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs” (2013 Special Advisory Bulletin). As an update to the Bulletin also addressing the effect of exclusion issued in 1999, the 2013 Special Advisory Bulletin addresses frequently asked questions regarding the scope of exclusions and the Affordable Care Act’s (ACA) expansion of the OIG’s exclusion authority.

OIG exclusion prohibits payment from a federal health care program for items or services provided by an excluded person or at the medical direction or prescription of an excluded person.  The prohibited federal health care program payments includes all methods of federal health care program payment; itemized claims, fee schedules, capitated payments, prospected payment system or bundled payments, cost reports, or any other payment system including when the payment is made to person that is not excluded or a state agency.  Additionally, the payment prohibition is not just for patient care, it includes payments for administrative and management services, even if they are included as part of another payment and not separately billable. 

Health care providers are potentially subject to civil monetary penalty (CMP) liability for arranging or contracting for the provision of services payable directly or indirectly by a federal health care program with a person the provider knew or should have known was excluded.  CMP liability is potentially very substantial.  The OIG recommends that to avoid this risk, health care providers check the OIG’s excluded list of excluded individuals and entities (LEIE) before employing, contracting, or entering other arrangements with persons and then periodically check the LEIE to determine the exclusion status of current employees and contractors.  While the OIG does not specify what it means by periodic checks, because the LEIE is updated on a monthly basis, monthly checks are the best practice.  The LEIE can be accessed here: http://exclusions.oig.hhs.gov/