(May 30, 2019) In August, 2011, the State Department of Public Welfare issued a bulletin requiring providers to screen employees and contractors upon hire and monthly thereafter by the (Medicheck) Pennsylvania Medicaid Exclusion List (their corresponding State exclusion/preclusion list), the HHS/OIG List of Excluded Individuals and Entities (LEIE) and the Excluded Party List (EPLS, now the GSA/SAM). The requirement applies to providers in both fee-for-service and managed care delivery services. It is noted that the website mentions the State and LEIE list but fails to mention the GSA/SAM, however, the bulletin is more specific and the better source to follow.
I.What is a Medicaid Exclusion?
“Exclusions” are final administrative action by a State or Federal agency that bars an individual or entity from participating in one of its benefit programs. When a State forecloses participation in its Medicaid programs, that action is often referred to as a “Medicaid Exclusion.” Similarly, when the Department of Health and Human Services (HHS), Office of Inspector General (OIG) bars participation in Medicare program, that is commonly referred to as a “Medicare Exclusion.” However, currently Pennsylvania is actually referring to their list of Excluded Individuals as “Precluded Providers”.Their “preclusions” are posted on the DHS.PA database which is maintained on their website, and Medicare Exclusions are posted on the OIG’s “List of Excluded Individuals and Entities” (LEIE) which is maintained on its website.
II. Who Gets Excluded? Why are Exclusions Imposed?
Pennsylvania Medicaid can terminate a provider’s enrollment as well as their direct and indirect participation in the Medicare Advantage Program and seek overpayments or civil monetary penalties as specified in PA Code § 1101.77 if it concludes that a provider, an employee of the provider, or an agent of the provider has done any of the following:
- Failed to comply with this chapter or the appropriate separate chapters relating to each provider type.
- Committed a prohibited act as specified in this chapter or the appropriate separate chapter relating to each provider type or under Article XIV of the Public Welfare Code (62 P. S. § § 1401—1411).
- Failed to comply with the conditions of participation listed in Articles IV or XIV of the Public Welfare Code (62 P. S. § § 401—493 and 1401—1411).
- Not complied with the terms of the provider agreement.
- Been suspended or terminated from Medicare.
- Been convicted of a Medicare or Medicaid related criminal offense as certified by a Federal, State or local court.
- Been convicted of a criminal offense under State or Federal laws relating to the practice of the provider’s profession as certified by a court.
- Been subject to a disciplinary action taken or entered against the provider in the records of the State licensing or certifying agency.
- Had a controlled drug license withdrawn or failed to report to the Department changes in the Provider’s Drug Enforcement Agency Number.
- Rendered or ordered services or items which the Department’s medical professionals have determined to be harmful to the recipient, of inferior quality or medically unnecessary.
- Ordered services for recipients or billed the Department for rendering services to recipients at an unregistered shared health facility after the shared health facility and provider are notified by the Department that the shared health facility is not registered.
- Refused to permit duly authorized State or Federal officials or their agents to examine the provider’s medical, fiscal or other records as necessary to verify services or claims for payment under the program.
However, a provider can also be terminated (excluded) for other reasons as well that are not related to their professional work. They can also be terminated or excluded for any of the following criminal convictions or disciplinary actions:
- The Department will terminate a provider’s enrollment and participation for 5 years if the provider is convicted of a criminal act listed in Article XIV of the Public Welfare Code (62 P. S. § § 1401—1411), a Medicare/Medicaid related crime or a criminal offense under State or Federal law relating to the practice of the provider’s profession. If the Department has an additional basis for termination which is unrelated to, and in addition to, the criminal conviction, it may terminate the provider for a period in excess of 5 years.
- If the additional basis for the termination is a disciplinary action taken against the provider or entered in the records of the State licensing or certifying agency, the period of termination will be the duration of the disciplinary action plus 5 years for the criminal conviction.
- If the Department has a basis for termination which is related to the criminal conviction (with the exception of exclusions from Medicare) the minimum period of the termination will be the longer of 5 years or the period related to the other action.
Since terminations/exclusions are designed to protect patients and the programs that serve them, it is not surprising to see that that most are based on fraud, crime convictions, adverse license board actions or exclusions imposed by the OIG.
“Exclusions [are] one of the most important tools we have to protect beneficiaries and stem fraud and abuse [and]…ensure that Medicare, Medicaid and other federal health care programs are protected. [W]e need…to help make sure excluded individuals are not involved in any way in the care of… beneficiaries.” Inspector General June Gibbs Brown.
The effects of an exclusi
on can be daunting and ruin a provider’s career. When a provider receives a Medicaid Exclusions the following will happen:
(1) The Department will not pay for services or items rendered, prescribed or ordered on and after the effective date of a provider’s termination from the Medical Assistance Program.
- A provider is not paid for services or items rendered on and after the effective date of his termination from the program.
- A participating provider is not paid for services, including inpatient hospital care and nursing home care, or items prescribed or ordered by a provider who has been terminated from the program.
- A participating provider is paid for services or items prescribed or ordered by a provider who voluntarily withdraws from the program.
(2) A provider whose enrollment in the program has been terminated may not, during the period of termination:
- Own, render, order or arrange for a service for a recipient.
- Receive direct or indirect payments from the Department in the form of salary, equity, dividends, shared fees, contracts, kickbacks or rebates from or through a participating provider or related entity.
- If a provider appeals the Department’s action of terminating the enrollment and participation of or suspending payments to the provider:
- The Department will pay the provider for compensable service rendered on and after the effective date specified in the notice if the appeal of the provider is upheld.
- The Department will not pay the provider for services rendered on or after the effective date specified in the notice if the appeal of the provider is denied.
States also must terminate the participation of any provider that has been listed as an “excluded individual” by the OIG LEIE Database. The requirement, contained in Section 6501 of the Affordable Care Act, is intended to strengthen Medicaid program integrity by stopping providers excluded in one State from moving to another and providing services there. Thus, stated simply, a Medicaid Exclusion in any state makes an individual radioactive when it comes to providing services in Pennsylvania or in any other State benefit program.
IV. Provider Exclusion Screening Requirements:
Pennsylvania Medicaid Exclusions are only effective if the payment prohibition is enforced and Pennsylvania seeks to achieve this goal largely by imposing extensive “exclusion screening” obligations on its Medicaid providers. These exclusion screening requirements were outlined in a state wide letter sent by CMS to all State Medicaid Directors (SMDL #09-001) (Exhibit 1) asking States to advise providers of their obligation to:
A. Screen all Employees and Contractors
Within the letter sent by CMS, Medicaid providers were informed that they are obligated to screen all employees and contractors against the Office of the Inspector General’s Federal List of Excluded Individuals/Entities (LEIE) upon enrollment and reenrollment.
While the primary part of the Medicaid Manual does not refer to screening upon hire, there are a large number of programs that operate under the umbrella of the Medicaid Program with manuals of their own that supplement the main Provider Enrollment Manual. The manuals of at least 20 of these “programs within the program” have an appendix that states that requires providers screen upon hiring and contracting, and least monthly thereafter, to ensure compliance with Federal regulations at 42 CFR 1001.1901(b) and State Medicaid Director Letter #09-001 from the Centers for Medicare & Medicaid Services (CMS).
B. Continuously Conduct Screens
Additionally, the 2009 CMS Letter asked states to require providers to:
- Require providers to comply with exclusion screening obligations as a condition of enrollment;
- Screen all employees and contractors against the Office of the Inspector General’s Federal List of Excluded Individuals/Entities (LEIE) monthly to capture any exclusions and reinstatements that have occurred since the last search;
- Screen the State list routinely when the provider searches the LEIE. Pennsylvania maintains its own State Excluded Provider List; and
- Immediately report to the State any exclusion information discovered
V. Best Practices for Complying with the Pennsylvania Medicaid Exclusion Screening Requirements:
Compliance with exclusion screening requirements is of critical. Providers that fail to ensure the exclusion status of their owners, managers, employees and contractors risk overpayment liability,the imposition of civil money penalties, and even possible criminal consequences. Only proper exclusion screening can help providers mitigate or avoid these risks, and this section will suggest some practices which providers should consider including in their compliance plans.
A. Screen all Employees, Contractors, and Vendors.
Pennsylvania Medicaid refuses to pay for services furnished directly or indirectly by an excluded entity. The same rule applies to Medicare, and the payment prohibition is broadly interpreted by federal authorities to include administrators, IT support personnel – even unpaid volunteers – if any of the services they provide contribute to any reimbursements that are received. A basic rule to follow is if the individual has any access to your patients, patient facilities, patient records, or financials, then they NEED to be screened.
B.Owner, Officer, Manager and Director Screening.
Owners, Officers, Managers, Directors, and even shareholders MUST be screened. We really recommend screening any individual that has access to your patients, patient records, patient financials, and patient facilities.
C. Special Rules for Billers and Coders.
Billers and third-party billing companies receive “special attention” when it comes to exclusion screening. It recognizes that providers may have to delegate their screening obligation to the billing contractor (particularly if it is a large one) and provides guidelines to be followed, however, it makes clear that the provide remains legally responsible for any overpayment liability. The OIG guidelines are found below, and providers should consider adopting some or all of them:
- Require the biller to have (and produce) a policy of not employing excluded persons
- Require the biller to screen its employees upon hire and monthly thereafter and maintain documentation of its screening
- Require the biller to provide training to its employees in connection with the applicable requirements and preparation of the claims they are submitting
D. Screening Should be Done on Hire or Contract Initiation, and Monthly Thereafter.
As previously discussed on pages 2 and 3, providers must screen upon hire and monthly thereafter. This is supported by 42 CFR 1001.1901(b) and State Medicaid Director Letter #09-001 from the Centers for Medicare & Medicaid Services (CMS).
E. Providers Should Hire a Vendor to Fulfill their Exclusion Screening Requirements.
Some providers are able to perform the “basic” screening obligation of checking the Pennsylvania Medicaid Exclusion List and the LEIE upon hire and monthly thereafter; but providers that attempt to screen all 40+ State Exclusion Lists are almost certainly going to find the task to be insurmountable. The difficulty stems from several factors: there is no uniformity in in the list formats (they could be in WORD, Excel or PDF); Pennsylvania list is currently provided online and is extremely difficult to search. Each list also contains different fields on information; States have different reasons and standards for including people on their list; and some States may have little to identify the person or entity beyond a name and city. In short, as with many other necessary services, providers need specialized assistance to meet a regulatory obligation.
There are a number of reputable exclusion screening vendors, but providers should be aware that vendors, and the services they provide, can vary significantly. Some vendors, for example, assist in investigating whether potential matches are actual matches whereas others may not; there can be differences in the sophistication of their software and the ability to identify “potential matches” when names are similar but not a “perfect match;” and the ease of access can differ.
VI. Considerations Impacted by PA Medicaid Managed Care
Pennsylvania has both fee-for-service and managed care providers, though in some counties Managed Care is mandatory. While the guidance by PA State Medicaid states that its screening requirements apply to providers in both delivery systems, providers must still apply to any managed care providers in the areas they work as they will have their own provider manual and their own provider application.
- The impact may manifest itself in various ways. For instance, as part of the Keystone First Provider application process, Keystone not only requests information on provider sanctions prior to making its credentialing and re-credentialing decisions, but it independently checks databases such as the LEIE, the EPLS, licensing and disciplinary boards.
- Similarly, as part of a providers agreement with United Health’s Managed Care Contractor, providers specially agree to: “Never employ or contract with individuals who are excluded from participation in any federal health care program or with entities that employ or contract with such individuals.”
VII. Closing Comments:
The goal of this article was to help providers gain a better understanding of Pennsylvania Medicaid Exclusions. Exclusions are imposed on people and entities that pose risks to the Program and its beneficiaries, and that is why Medicheck will not pay for any item or service furnished by them, whether directly or indirectly. The article is also intended to help providers gain an understanding of their exclusion screening obligations and how they can fulfill them.
When deciding on the type of Exclusion Screening Program to implement, Providers should be aware of the requirements in the enrollment and re-enrollment process. Though the screening universe is somewhat smaller that the basic requirement, it still includes all of ownership and management, and since it is part of the disclosure process changes in status could be viewed as reportable adverse actions. Providers should also be aware that there are many managed care providers in the PA Medicaid program, and that each will have its own provider manual and, perhaps, different screening rules.
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This document is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.