Short Staffing May Still be Hindering Health Care in Connecticut but OIG's Exclusion Authority Remains Alive and Well

Pullman & Comley - Connecticut Health Law
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Pullman & Comley - Connecticut Health Law

Can a 40-year-old fraud and abuse law that compared to many others is relatively straightforward still get providers into trouble?  Answer: You bet!  In fact, in the first quarter of 2022 alone, the U.S. Attorney for the District of Connecticut announced settlements with two separate group practices who were alleged to have improperly employed individuals who were excluded from the federal healthcare programs.

The settlements with Hamden-based Geriatric & Adult Psychiatry, LLC and Willimantic-based Windham Eye Group, P.C. were for $310,874 and $192,699, respectively, and both matters involved long-tenured employees – one a physician and the other a practice administrator – who had previously been convicted on health care fraud charges in states outside of Connecticut. Both practices were alleged to have billed and sought reimbursement from the federal health care programs during the time the excluded individuals were employed with a portion of such reimbursements used to pay the same individuals’ salary and benefits.

With the COVID-19 pandemic causing widespread staffing shortages throughout the healthcare industry, providers need to temper their eagerness to fill positions by keeping in mind that since Congress enacted the Civil Monetary Penalty (CMP) law in 1981, no federal health care program payment may be made for any items or services furnished by an excluded person or at the medical direction or on the prescription of an excluded person.  Additionally, as outlined in the OIG’s (Office of Inspector General) 2013 Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs, excluded persons are prohibited from furnishing administrative and management services that are payable by the federal health care programs, even if these services are not separately billable.

Accordingly, providers who employ or contract with excluded individuals or entities and receive Medicare, Medicaid and other federal program reimbursement must generally report and repay these overpayments within 60 days or risk False Claims Act penalties.  Additionally, if a provider knows or should know an individual is excluded, the OIG may impose CMPs of up to a maximum adjusted amount of $22,427 for each item or service furnished by the excluded person for which federal payment is sought, as well as impose assessments of up to three times the amount claimed for such items or services under 42 CFR §§ 1001.1901(b)(3) and 1003.102(a)(2)-(3).

The practical effect of these laws is that the government places an “affirmative duty" on health care providers to check to ensure that excluded individuals are not working in or for their facilities or they expose themselves to what can be crippling fines as well as potential exclusion of their own organizations.  The OIG maintains the List of Excluded Individuals and Entities (the “LEIE”) on its website at http://oig.hhs.gov.exclusions and reports are that the list has grown significantly in recent months as federal and state enforcement authorities catch up on investigations and administrative proceedings that were delayed by the pandemic.

Some best practices:

  • The LEIE should be checked before hiring employees or contracting with practitioners, vendors or suppliers and even when vetting volunteers. A recommended best practice is to check these same parties against the LEIE on a regular basis, such as monthly, thereafter and document such checks through screen shots or by other means.
  • Name changes among excluded individuals and entities are fairly common so cross checks using such information as social security and tax identification numbers is also recommended. 
  • Finally, employment agreements, credentialing packets and like materials should ask for disclosure of names by which an individual or entity has been previously known and require confirmation that they are not excluded and that they indemnify the organization for any misrepresentation.

Like other states, Connecticut has a myriad of laws that can apply to employment background checks.  However, when it comes to organizations that receive Medicare, Medicaid and other federal program reimbursement, adherence to the rules governing employment and contracting with individuals and entities excluded from these programs needs to be at the top of the list.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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