The proper way to screen a healthcare employee or third party vendor includes an initial OIG background check of the List of Excluded Individuals and Entities (LEIE). This should be done prior to the hiring of or commencement of billing for the services or items purchased from a third party vendor.
The question is how often should a healthcare organization check the exclusion list after hire or contracting with a third party.
OIG Background Checks: How Often to Check OIG Exclusion List?
It is industry standard and best practice to conduct a pre-employment background check of the exclusion list.This also meets certain state statutory requirements regulating healthcare.
When an employer combines an background check of the exclusion list with state Medicaid exclusion lists (view full list as of 2-26-2015) as well as license verification, education verification, employment verification, a Social Security number validation, and appropriate criminal records history it can safely rely upon certain protections against negligent hire.
But after hire, there is a legal doctrine called negligent retention. Which is applied if an employer fails to conduct regular updates to certain public record that can change (such as license verification, criminal record verifications and exclusion background checks). This doctrine also applies to third party contractors and even referring physicians. The OIG maintains the LEIE and updates this list at least monthly. The exclusion list was designed to be the single place for an employer or healthcare organization to go to conduct OIG background checks.
The LEIE is supposed to hold all exclusions issued by the OIG and states. However, an audit in 2011 of 2008 OIG LEIE data uncovered that the OIG exclusion list was missing up to 61% of existing state Medicaid exclusions.
This is troubling for many reasons, not the least of which is that fact that under the Affordable Care Act Section 6501 now holds an employer liable for knowing if an individual or entity is excluded in any one state. If he/she or the entity is excluded in any one state, then he/she or the entity is considered excluded in ALL states.
So, if a healthcare employer is only conducting a pre-employment OIG background check, then it is exposing the company to possible risk of continuing to bill CMS for an existing employee or approved third party services or items in its bill to CMS that is excluded.
Inspector General Daniel Levinson of HHS has stated, in many publications, that it is his recommendation and best practice to search the OIG exclusion list monthly since they update the records monthly.
A proper employee and vendor OIG background check includes a pre-employment or prior to contracting OIG exclusion background check AND a monthly update against the exclusion and state Medicaid exclusion lists. Also the employer should check the GSA database called SAM.gov(formerly the Excluded Parties List System-EPLS). The GSA administers all procurement databases, including SAM. SAM now houses the old EPLS. So SAM is the GSA go to!
Remember, that the legal standard for a negligent hiring or negligent retention claim is what the employer "knew or should have known" about the exclusion status of an individual or entity. Since OIG exclusions at the federal and state Medicaid agency level are public record, then the employer does not have a defense that it did not or could not have known.
Start the conversation – What is your exclusion monitoring process? Comment below.
This post was orginally published December 3, 2012 and has been completely revamped and updated for accuracy and comprehensiveness.
Written by Michael Rosen, ESQ
ProviderTrust Co-Founder, firstname.lastname@example.org
Michael brings over 20 years of experience founding and leading risk mitigation businesses, receiving numerous accolades such as: Inc Magazine's Inc 500 Award and Nashville Chamber of Commerce Small Business of the Year
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