Do You Employ Persons Excluded from Medicare and Medicaid Reimbursement?
By:
David S. Barmak, JD CEO
The Centers for Medicare and Medicaid Services (“CMS”) will not accept healthcare claims based on work done by “excluded persons”. In addition, no state Medicaid claims are allowed to be presented to CMS for payment based on work done by excluded persons.
Excluded persons are persons having committed a crime related to the provision of health care, (e.g.; criminal convictions related to healthcare programs as well as to controlled substances) or having engaged in conduct characterized as unacceptable in the provision of health care (e.g.; sexual assault or patient abuse).
Federal law prohibits any payment made by Medicare, Medicaid or any of the other federal health care programs for any item or service furnished by an excluded individual or entity, or at the medical direction or on the prescription of a physician or other authorized individual who is excluded when the person furnishing such item or service knew or had reason to know of the exclusion.
The focus is not on the relationship but on the payment. If the Office of the Inspector General excludes a person from Medicare, the state must exclude that person from that state’s Medicaid program.
Once exclusion of a health care employee occurs, health care providers may employ or contract with excluded persons, but may not allow excluded persons to provide or to direct the ordering or delivery of services or supplies, or to undertake certain administrative duties. This applies whether or not direct care activities are involved as long as any part of the task is reimbursed by federal program dollars. Providers that utilize staffing agencies must be sure that the agencies are screening potential candidates to ensure that they have not been excluded prior to being sent to providers for work. Providers must develop and enforce contractual agreements to ensure prescreening occurs by the staffing agencies.
Potential liability for employing or contracting with excluded individuals and/or entities includes for the excluded individual/entity submitting claims: fines for each item/service claimed or “caused to be” claimed; plus treble damages of the amount claimed for each item/service; plus extension of any existing exclusion period. Reinstatement is not automatic after exclusion and providers must apply for reinstatement. A violation also potentially amounts to a false claim under False Claims Act. This provides a separate basis for administrative sanctions or exclusion.
