What to Know About the New CMS Preclusion List

By: Cason Liles

New CMS Preclusion List(February 12, 2019) Beginning April 1, 2019, CMS’s new Preclusion List will go into effect subsequently barring many healthcare professionals from receiving payment for Medicare Advantage (MA) items and services or Part D drugs furnished or prescribed to Medicare beneficiaries. But what is the Preclusion List? Who is on it? Why was created? Don’t worry, we’re going to break down everything you need to know about this new CMS action and how it can affect your organization.

 I. What is the Preclusion List?  

The Preclusion List is a list generated by CMS that contains the names of prescribers, individuals, and or entities that are unable to receive payment for Medicare Advantage (MA) items and service and or Part D drugs prescribed or provided to Medicare beneficiaries.

 II. How Does Someone End up on The Preclusion List?  

CMS has given two ways for which someone can end up on the Preclusion List. The first one way is if you:

“Are currently revoked from Medicare, are under an active reenrollment bar, and CMS has determined that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program”

 However, even if you are revoked from Medicare, you still may find yourself on the Preclusion List. CMS is also precluding anyone that has:

“… Engaged in behavior for which CMS could have revoked the prescriber, individual or entity to the extent applicable if they had been enrolled in Medicare, and CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program. Such conduct includes, but are not limited to, felony convictions AND Office of Inspector General (OIG) exclusions.”


 III. Why was the Preclusion List Created?  

In April of 2018, within the Federal Register Rules and Regulations update, the Department of Health and Human Services released information on policy changes to Medicare programs. In which, they discussed the Preclusion List and their reasoning for establishing the new rule. It seems that CMS has given a few reasons for putting this new rule into effect:
  • “To focus on preventing payment for Part D drugs prescribed by demonstrably problematic prescribers”
  • “Reduce the burden on Part D prescribers and Medicare Advantage providers without compromising our program integrity efforts.” And to
  • “To replace the Medicare Advantage (MA) and prescriber enrollment requirements.”
By doing this, CMS believes that it will save $34.4 million dollars in 2019. These savings would be derived from the removal of the requirements for Part D prescribers and Medicare Advantage providers and suppliers to enroll in Medicare prior to providing health care services and items.

 IV. How do I Know if I am Precluded?  

Unlike the Office of Inspector General’s (OIG) monthly exclusion list, the Preclusion list will not be shared publicly. Precluded providers however will receive notice in a variety of ways. First, CMS will issue an initial email notification to the precluded providers using their email addressed which they provided to either the Provider Enrollment, Chain and Ownership System (PECOS), the National Provider Plan and Enumeration System (NPPES), or from the Medicare enrollment system of record. The Medicare Administrative Contractor (MAC) will also follow up by sending a written notice through the mail to the precluded provider before they are added to the Preclusion List. Within this letter you will also be informed on why exactly you are precluded, the date that your preclusion will go into effect, and your applicable appeal rights.

 V. Are Dentists at Risk of Being Precluded?  

YES.
If a dentist has been revoked from Medicare, is under an active re-enrollment bar, and CMS has found that the actions that led to their original revocation is a risk to the integrity of the Medicare program or has engaged in behavior for which CMS could have excluded them from participating in Medicare if they had enrolled.
 
 VI. When will the Preclusion List go into Effect?  

The first list of providers that were to be precluded were published and were sent notice on January 1, 2019. However, beginning April 1, 2019 Part D sponsors will become required to reject any prescriptions for Medicare Part D drugs that are prescribed by an individual or entity that is on the Preclusion List. Medicare Advantage (MA) plans will also become required to deny payments for any healthcare service or item that was provided by and individual or entity that is on the Preclusion List.

 VII. Is This the Same as the OIG’s Exclusion List?  

The OIG Exclusion List is NOT the same as this new CMS List. That being said, there is some overlap. If you have been excluded, you can still find yourself on the Preclusion List if you fall into the either of the two criteria listed above under the “How Does Someone End up on The Preclusion List? ” section. As you can see in the diagram below, there is some overlap, but not much.

New CMS Preclusion List


 VIII. How can I Screen for Precluded Individuals or Entities?  
Unfortunately, access to the Preclusion List is Extremely Restricted. However, under certain circumstances, we here at Exclusion Screening, LLC can provide guidance and help. Contact us info@exclusionscreening.com or give us a call at (800)-294-0952 for a free consultation and quote.

2015 Mid-Year Exclusion Enforcement Action Review

OIG Exclusion EnforcementOIG has been busy cracking down on providers who employ or contract with excluded persons or contractors.  In fact, by the end of July OIG settled 27 exclusion violation cases through investigations or self-disclosures.  By way of reminder, there were 60 enforcement actions related to OIG exclusion violations in 2014.  Following is our 2015 mid-year review of OIG’s enforcement against those who employ or contract with excluded providers.

Civil Monetary Penalties 

 

 

 

 

In six months, OIG recouped $3.79 million from providers who knew or should have known that an employee was excluded from participation in the federal health care programs.  A third of the settlements in the past six months resulted in payments between $100,000 and $250,000 per provider.  The Civil Monetary Penalties (CMPs) returned in each enforcement action range from $10,000 to $431,000 and an overwhelming majority of the cases only involve one excluded individual.  In fact, only 4 of the 27 enforcement actions this year involved more than one excluded provider.  This goes to show that the penalty a provider may face for employing or contracting an excluded person varies widely depending on exactly how many items or services that person provided.

Industry Breakdown

One trend that remains steady is that nursing homes continue to be the industry hit the hardest with enforcement actions.  Following behind nursing homes were hospitals and home health agencies with four enforcement actions each so far this year.  We expect that nursing homes and home health agencies will remain hot beds for OIG exclusion enforcement action as the year progresses.

State Breakdown

One area where 2015 enforcement actions depart from 2014 is the states in which OIG has imposed CMP liability. Texas and California were still hit hard, but Minnesota actually surpassed California with three enforcement actions in the first half of 2015.  Virginia has also been under OIG’s microscope, with three enforcement action settlements this year, making quite the jump from just one in 2014.  We have also seen enforcement action in states that did not have any issues in 2014 like Alabama, Illinois, Indiana, Maryland, and Washington.

Takeaway

While we try to draw comparisons to shed light on OIG’s exclusion enforcement action focus, the fact of the matter is that OIG exclusion enforcement is here to stay.  Nursing homes continue to be a target and the cost of employing just one excluded individual is hefty.  The risks associated with failing to properly screen your employees and contractors is far too high and drastically outweighs the cost of properly screening against all available State and Federal lists monthly.  Contact Exclusion Screening, LLCSM today for a free consultation at 1-800-294-0952 or fill out our online service form.

Also read more on OIG Exclusion

2015 OIG Work Plan: Prevention of Grant Awards to Excluded Persons and Entities

oig Exclusion Work Plan
By Paul Weidenfeld

I. Concerns of the 2015 OIG Exclusion Work Plan

The Office of Inspector General (OIG) expressed concern regarding exclusion and suspension enforcement in its 2015 OIG Work Plan. The OIG announced that its Office of Audit Services will study whether the operating divisions within its own agency have been taking adequate precautions to ensure that individuals and entities that have been suspended or debarred are not being awarded Federal grants or contracts.[1]  Noting that “Federal agencies are required to make awards only to responsible sources,” the 2015 OIG Work Plan states that precluding firms or individuals that have been excluded or suspended from receiving contracts or assistance is one of the ways of achieving that objective. The Work Plan suggests it is following up on a Government Accountability Office (GAO) Report that “found that some agency programs need greater attention, and government wide oversight could be improved.”

II. OIG Agency Accountability 

We must note, however, that the study seems only to include suspensions and debarments (which are temporary exclusions or exclusions for a fixed period of time) reported in the System for Award Management (SAM), the exclusion database maintained by the General Services Administration (GSA). While this might signify that OIG is satisfied with agency enforcement of its own administrative sanctions, the important takeaway is that OIG is holding its own agency to a standard that includes screening the SAM in addition to the LEIE.

 III. Conclusion

The inclusion of this study in the work plan has several important messages.  First, providers are reminded that screening of the LEIE alone is clearly not enough. Secondly, indirect payments in the form of contracts cannot be ignored in one’s screening protocol. Finally, enforcement of the payment prohibition to excluded persons and entities remains a high enforcement priority for the OIG.

Read more on OIG Exclusion

OIG Exclusion 
Paul Weidenfeld, Co-Founder and CEO of Exclusion Screening, LLC, is the author of this article. He is a longtime health care lawyer whose practice has focused on False Claims Act cases and health care fraud matters generally. Contact Paul should you have any  questions at: pweidenfeld@exclusionscreening.com or 1-800-294-0952.

 

[1] OAS; W-00-15-59024 which is expected to be issued in FY 2015.