Home Health & Hospice Week

Feds can reach back 10 years for exclusion grounds.

Now is the time to make sure you’re on the OIG’s good side, since a new rule expanding the watchdog agency’s Medicare and Medicaid exclusion authority took effect some weeks ago.

The HHS Office of Inspector General issued a final rule Jan. 11 expanding its authority to penalize offending providers. Providers that commit fraud and abuse can be banned from Medicare and Medicaid, meaning that they would no longer receive reimbursement from the federal health programs.

Taking effect on Feb. 13, the final rule published in the Jan. 12 Federal Register states that the OIG will have 10 years to investigate and carry out exclusions, and that the OIG has the authority to exclude an entity based on convictions related to:

obstructing audits; failure to provide federal payment info; and the creation of false statements or misrepresentation of facts in federal healthcare program applications.

Under the final rule, providers who share ownership — directly or indirectly — with people who have been convicted of criminal offenses will be excluded from Medicare/Medicaid.

Keep in mind that criminal or civil legal proceedings are not required for the OIG to exclude an agency or individual under the rule. “Although the majority of exclusion are derivative of other actions (such as convictions or licensure actions), exclusions can be pursued affirmatively and initiated by the OIG, often by the OIG’s recently established (2015) administrative litigation team,” note attorneys Judith Waltz and Jill Wright with Foley Lardner in analysis of the rule.

End in sight: “The OIG scrapped its proposal to implement its position that there is no time limitation to exclusions” under this rule, Waltz and Wright say. “Many commenters objected to the OIG’s interpretation that no statute of limitations exists for such exclusions.”

“It’s a step in the right direction,” says Sheree Kanner, former CMS attorney and current healthcare attorney at Hogan Lovells in Washington D.C.

“It gives providers and suppliers a helpful point of finality when they discover potential misconduct, rather than leaving the possibility of exclusion on the table even after resolving potential liability under the False Claims Act or other fraud and abuse laws.”

The final rule is a push to get providers to realize that the risks are high for committing fraud and abuse. “The OIG has extremely broad exclusion authority over a wide variety of activities — improper and medically unnecessary billing, providing and receiving kickbacks, and more,” says Elizabeth B. Carder-Thompson, healthcare regulatory attorney at Reed Smith in Washington, D.C. Actions as simple as upcoding and downcoding, or waiving copays or deductibles, can be considered kickbacks or inducements.

Also keep in mind that before hiring any staff, you should consult the OIG Exclusion list. If your candidate is listed, you will be held responsible. Find the list online at https://oig.hhs.gov/faqs/exclusions-faq.asp.

What do providers need to do to stay on the OIG’s good side and comply with the final rule? “As always, the best preparation is to have strong policies and procedures and an active compliance program,” especially when it comes to audits, advises Carder-Thompson.

What to do first: Managers should start by forming “a team of staff members dedicated to handling … compliance activities,” Vera Watkins, Perioperative Nurse at Retina Specialty Institute and Certified Health Auditor, told attendees at the American Academy of Ophthalmology 2016 annual meeting in Chicago.

The compliance team should create formal Standards of Conduct, provide training and education on proper coding procedures and handling of PHI, form auditing and monitoring guidelines, create corrective action plans, and institute disciplinary guidelines for staff who commit fraud and abuse, Watkins recommended. Compliance teams should also conduct internal audits and disclose any issues they find. Although there is no guarantee that you'll get amnesty for self-disclosing, the benefits of doing so outweigh the risks.

Note: See the rule at www.gpo.gov/fdsys/pkg/FR-2017-01-12/pdf/2016-31390.pdf.