On May 8, 2013, the Department of Health and Human Services Office of Inspector General (HHS-OIG) released a Special Advisory Opinion regarding Medicare Providers’ obligations to ensure that they do not employ or contract with excluded providers or entities in connection with the provision of Medicare services. The provision against employing or contracting with excluded persons or entities is very broad, and includes not just direct caregivers, but also personnel engaged in administrative and management services, including persons who provide information technology, billing, training, accounting and human resources.

The OIG emphasized that its ability to impose sanctions extends to a provider contracting with an excluded person or entity, including per diem or temporary staff obtained from a staffing company. As a consequence, the OIG recommended that providers either run exclusion checks on temporary staff, or require the contracted entity to provide proof of screening by the contracted entity.

The OIG updates the list of excluded individuals and entities (LEIE) on a monthly basis, and recommends that providers check all employees and contracted personnel or entities against the LEIE on a monthly basis.

The penalties for employing or contracting with an excluded person or entity are severe, and include a prohibition on payment for services rendered, as well as civil monetary penalties of up to $10,000 for each item or service provided by the excluded person, an assessment of three times the amount claimed for services by the excluded person or entity, and exclusion of the provider.

The LEIE can be accessed on the HHS-OIG’s website at https://oig.hhs.gov/exclusions.

Providers who discover that they have employed or contracted with an excluded person or entity and submitted prohibited claims may be able to obtain reduced penalties by making a self disclosure to the HHS-OIG. Nicholson & Eastin, LLP regularly assists providers with Medicare compliance, self disclosure and administrative defense of HHS-OIG enforcement actions.