The focus of this article is to help providers identify which States have a separate Medicaid exclusion list, how they are different from the federal exclusion lists, and the effects on screening.
I. Medicaid Exclusion
Exclusion Screening, LLC conducts monthly checks of our clients’ employees, contractors, and vendors against the OIG-LEIE, GSA-SAM, and all available State Exclusion Lists. Most providers understand that they have an obligation to check their employees, contractors, and vendors against the OIG-LEIE prior to hiring and monthly thereafter. Fewer providers are aware of their obligation to screen their individual state exclusion list if their state maintains such a list.
CMS directed State Medicaid Directors to remind all providers that they have an obligation to search their state list whenever they search the LEIE.1 In addition, many states require providers when they enroll or re-enroll in the Medicaid program to certify that no employee or contractor is excluded from participation in any state. This requirement echoes the Affordable Care Act (ACA) Section 6501, which states that if a provider is excluded in one state, he or she is excluded in all fifty states.2
II. SAFER
Exclusion Screening, LLC’s proprietary database, SAFER (State and Federal Exclusion Registry), imports the most recent exclusion data from each state list constantly. We are also in regular contact with state Medicaid and Program Integrity Offices about their lists.
The Center for Medicare and Medicaid Services (CMS) retains overall responsibility for the Medicaid program, but States have final authority on who can provide services and who can receive them. States can, for example, exclude providers for “any reason or period [of time] authorized by State law, 3 or for any reason that the Office of Inspector General (OIG) could impose an exclusion under federal law.4 Since Medicaid, like Medicare, will not pay for items or services provided by an excluded party,5 when a State excludes or terminates a provider based on federal law, they are required to notify the OIG and their sister States so that they can add them to their respective exclusion lists.6 Although it is not required, most States maintain their Medicaid Exclusion Lists that include the sanctions they impose.
III. Which States Maintain a Separate Medicaid Exclusion List?
Forty-three States and the District of Columbia maintain Medicaid Exclusion Lists though the names of the sanctions, and lists themselves can vary. For example, common names for State sanction lists include Excluded Provider List; Sanctioned Provider Report or List; and Terminated Provider List. These states are in Red on the map and readers can access the State Medicaid Exclusion Lists through the links below.
For informational purposes, links to the Medicaid websites for the States are also found below.
The States that Currently Maintain a Separate Medicaid Exclusion List:
States with separate state Medicaid Exclusion Lists.
The seven states that don’t: are New Mexico, Virginia, Oklahoma, Rhode Island, South Dakota, Utah, and Wisconsin.
IV. Why Do States Maintain a Separate Medicaid Exclusion List?
States are only required to notify the OIG when they exclude or terminate a party based on Federal law.
They aren’t required (or supposed) to notify it for actions based on State law because if the sanction failed to meet the criteria for a federal exclusion, it would not be posted on the LEIE. Without a separate State sanction list, providers would have no way of knowing if a person or entity had been excluded or terminated. Also, even if the OIG disagrees with a State action based on federal grounds, by maintaining their own list, the State exclusion will stand even if a federal exclusion is not imposed.
In addition to being the only way to publish State sanctions, State Lists the fastest and most efficient way of publishing and imposing sanctions based on federal law. After a State notifies the OIG, it can still take several months for the OIG to process the State sanction and to determine if they will also impose an exclusion. During this lag time, the State will be able to enforce the payment prohibition even those federal payments made still be made to the party they sanctioned!
States also may choose to maintain their own list to have a central registry for State sanctions; one that includes non-healthcare actions in addition to exclusions or terminations. For example, federal exclusions can be imposed for the failure to repay federal loans, and it would be reasonable for a State to have a similar exclusion basis. Similarly, a State might also want to exclude a party for failing to pay State taxes, or for failing to provide a variety of other reasons, that would not be valid bases for federal exclusions.
V. Why Don’t all States Maintain a Separate Medicaid Exclusion List?
States aren’t required to maintain their own separate exclusion list. States can, instead, treat the OIG’s List of Excluded Individuals and Entities as their “own” list, and seven states have elected to do this.
Providers should be aware, however, that the States without separate sanction lists focused on healthcare, may have other sanction lists that they are required to screen in addition to the LEIE. The State agencies responsible for contracting may, for example, have a separate debarment list; the agency responsible for providing services to those in need of care may maintain a list of persons who may not participate, the State Department of Health might have a list, and so on.
VI. How are the States’ Medicaid Exclusion Lists Different from the OIG’s Exclusion List?
The principal difference is that State lists don’t exclusively contain healthcare sanctions. They are often used as a centralized list for several sanctions, each of which may have a different impact. State Medicaid Exclusion lists are also not uniformly maintained or updated or even found in the same location State by State.
VII. Does Each State Medicaid Exclusion List Have the Same Data? Are they in the Same Format? Is Verification the Same?
NO, NO, and NO. Some State Medicaid Exclusion Lists are in Excel format, others in WORD, and yet others are in PDF! They also vary widely in the data they contain and in the way the data is presented. For instance, some State lists have little more than a name, exclusion date, and address. Verification of a State exclusion is also governed on a State-by-State basis.
VIII. How Can Providers Meet Their State Screening Obligations?
State Exclusion is extremely difficult, if not virtually impossible, for providers to screen. There is no uniform format, the data itself may be sparse, and verification is often time-consuming and difficult. With its proprietary State and Federal Exclusion Registry (SAFER), Exclusion Screening, LLC imports the most recent exclusion data from each state list constantly, and once a provider sends us its list to screen, we do all the work, and providers can sit back and wait for their report!
For additional information visit “OIG Exclusion and State Exclusion Lists: Which Exclusion Lists Need to Be Screened? What Is the Difference Between Them?”
IX. A Simple and Affordable Solution
Without a doubt, state and federal exclusion screening requirements are incredibly burdensome for most providers. If screening your employees against each federal and state list that your state requires is not cost effective for your office to do in-house, contact Exclusion Screening, LLC today at 1-800-294-0952 or fill out our online service form found below. We would be happy to discuss your specific state obligations, provide a cost assessment, and help you create your employee and vendor list.x
Paul Weidenfeld is a former federal healthcare fraud prosecutor and Department of Justice National Health Care Fraud Coordinator. His principal area of practice is healthcare fraud and abuse and the Federal False Claims Act, and he has represented providers and individuals in healthcare matters since leaving government in 2006. Mr. Weidenfeld also has an extensive litigation background that includes numerous trials and appeals and appearances before the United States Supreme Court, the Federal 5th Circuit Court of Appeals, and the Louisiana Supreme Court.
[1] 42 CFR § 1002.3(b).
[2] 42 CFR § 1002.1(a)(4). The OIG has been delegated the authority to impose exclusions and civil money penalties under section 1128A of the Social Security Act. 81 FR 88356, Dec. 7, 2016. See also, 1003.150.
[3] See Letter from Centers for Medicare and Medicaid Services (CMS) to State Medicaid Directors 5 (Jan. 16, 2009).
[4] See 42 U.S.C. § 1396a(a)(39) (2012), available at http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf (codifying the termination requirements of ACA § 6501); see also Letter from Centers for Medicare and Medicaid Services (CMS), CPI-CMS Informational Bulletin, Affordable Care Act Program Integrity Provisions – Guidance to States — Section 6501 – Termination of Provider Participation under Medicaid if Terminated under Medicare or other State Plan (Jan. 20, 2012), available at http://downloads.cms.gov/cmsgov/archived-downloads/CMCSBulletins/downloads/6501-Term.pdf.
[5] See Ohio Admin. Code § 5160-1-17.8(c)(ii); Ohio Medicaid Provider Exclusion and Suspension List, Ohio Dep’t of Medicaid, http://medicaid.ohio.gov/PROVIDERS/EnrollmentandSupport/ProviderExclusionandSuspensionList.aspx (last accessed Jan. 22, 2015).
[6] Newsletter to All Providers, from the New Jersey Dep’t of Human Servs., et al., Excluded, Unlicensed or Uncertified Individuals or Entities (Oct. 2010).