I recently attended an exclusion screening webinar from the Health Care Compliance Association (HCCA), “Everything You Always Wanted to Know About Exclusions But Were Afraid to Ask.” After listening to the 90-minute presentation with attorneys Mary C. Malone and W. Clay Landa from Hancock, Daniel, Johnson & Nagle, P.C., it was very clear that healthcare exclusion screening is an extremely complex and quite frankly intimidating area of compliance. While I won’t be covering the full scope of the webinar in this article, I thought I would share my top five takeaways from the session.

Employing Excluded Individuals or Entities Can Be Costly.

On June 30, 2015 the Office of Inspector General (OIG) announced the creation of a new litigation team dedicated to pursuing civil monetary penalties (CMPs) and exclusion cases. With the OIG increasing enforcement efforts regarding exclusions, healthcare organizations who employ excluded individuals or entities can be subject to hefty fines from the government. Unfortunately, the following case posted on the OIG’s website demonstrates that having just one excluded individual on staff can cost a healthcare organization more than six figures in fines.

California Skilled Nursing Facility Settles Case Involving Excluded Individual

On November 10, 2015, Windsor Health Care Golden Palms, LLC d/b/a Golden Hill Subacute and Rehabilitation Center (Golden Hill), California, entered into a $214,303.69 settlement agreement with OIG. The settlement agreement resolves allegations that Golden Hill employed an individual who was excluded from participation in any Federal [healthcare] programs.

Have a Documented Compliance Program.

With so much at stake, it’s critical for healthcare organizations to have a well-documented compliance program that includes a background screening and exclusion screening policy. By ensuring that exclusion screening is part of an organization’s compliance program, it’s easier to follow best practices and prevent excluded individuals and entities from engaging with the organization. As Landa noted during the presentation, however, a documented compliance program can also be beneficial should if an organization considers self-disclosing via the OIG’s Self-Disclosure Protocol. Specifically, a description of the screening process (including any policy or procedure that was in place) and any flaw or breakdown in that process that lead to the hiring or contracting with an excluded individual, is one of the required elements of a proper self-disclosure.

State Medicaid Exclusion Lists are Increasing.

According to W. Clay Landa, an ever-increasing number of states have initiated and maintained their own exclusion, termination, or sanctioned providers list. This is important because Section 6501 of the Affordable Care Act (ACA) requires the termination of Medicaid provider participation if that same provider is terminated from Medicare or another state plan. Therefore, if an individual is excluded in one state, they are excluded in all. As a best practice, Malone recommends healthcare organizations check the state exclusion lists as part of their exclusion screening program.

As of March 2015, the following list of 37 states and one U.S. territory maintain their own exclusion list:

Dedicate Resources to Conduct Exclusion Screening.

With the OIG recommending monthly exclusion screening in their latest Special Advisory Bulletin, healthcare organizations should dedicate enough resources to screen against the latest publicly available information. For organizations conducting exclusion screening in-house, Malone suggests dedicating an employee or department to perform the screening. Screenings should be done upon hiring or contracting and monthly thereafter for all employees, volunteers, contractors, and any affiliated but non-employed providers ordering or furnishing services. Malone also recommends screening the members of a governing board, including directors and trustees.

Depending on the size of your organization, it may be more efficient to hire the services of an exclusion screening firm like PreCheck, for example. When comparing the services of exclusion screening companies, make sure you are comparing apples to apples. Not all exclusion screening vendors provide the same type of report and if you are not careful in your selection process, your staff could need to conduct significant post-investigative work to determine whether the name on the exclusion screening report is in fact the person on your staff.

Reinstatements are Not Automatic.

Although the OIG provides a timeframe for exclusions, note that reinstatement is not automatic once the specified period of exclusion ends. In order for an excluded individual to be reinstated for participation in Medicare, Medicaid and all Federal healthcare programs, they must apply for reinstatement and must receive authorized notice from the OIG that reinstatement has been granted. In making the reinstatement, the OIG considers several different factors including the conduct of the individual occurring prior and after the exclusion, whether all fines have been paid, and whether the Centers for Medicare and Medicaid Services (CMS) has determined the individual complies with the conditions of participation, among others.

Healthcare exclusions can be a high area of risk for healthcare organizations. By developing a compliance program that follows exclusion screening best practices, however, healthcare employers can mitigate risk and protect the integrity of their programs.