HOW TO PROTECT YOUR ORGANIZATION WITH SANCTION SCREENING WEBINAR QUESTION AND ANSWER SESSION Q: Is it necessary to search SAM and LEIE or only LEIE? A: Yes. As you are aware of, OIG LEIE must be screened to avoid hiring or contracting with excluded parties. Billing for items or services rendered or prescribed by an excluded party can lead to denial of claims and potential civil monetary penalties. CMS states that to obtain and maintain active enrollment status, providers may not employ or contract with individuals or entities that are excluded from participation in any federal health care program or debarred by the GSA from any other executive branch program or activity. Please refer to 42 C.F.R. 424.516. However, CMS does not stipulate how often the screenings must be conducted. However, CMS does not stipulate how often the screenings must be conducted. Therefore, to ease the burden of GSA screenings consider screening at time of hire and quarterly thereafter or on a rolling schedule. Q: What causes the OIG website to check exclusions to be down and unavailable for days upon days? This happens often and I want to know what to expect. A: It is possible that the OIG LEIE is down for maintenance, upgrades, or there is a high volume of traffic on the site. Unfortunately, I cannot say for certain. When this occurs again, contact the OIG Exclusion Program, by email at sanction@oig.hhs.gov or by telephone at (202) 691-2311. They can also screen the name on your behalf if you need a time sensitive answer on screening results. If the LEIE site is unavailable often and it is impacting your screening process, consider utilizing a vendor. There are vendors, including Compliance Resource Center, that maintain searchable databases of federal and state exclusion data. Compliance Resource Center s proprietary tool S 3 is at times down for routine maintenance; however, in consideration for our clients, maintenance is scheduled during periods of low activity, such early AM hours or on weekends. Q: Given limited resources and funding How would you suggest conducting MONTHLY excluded checks for agencies with large work forces?(over 3000). Time and cost are the two biggest factors to consider when reviewing your sanction screening process. Screening 3,000 names monthly can seem overwhelming; however, an automated tool will add efficiencies to your process. Vendors, including Compliance Resource Center, offer automated tools to facilitate screening federal and state databases. First, look for a tool that allows for 3,000 names to be uploaded and avoid entering each name manually. Second, the tool should include both federal and state databases, especially if you operate in a state that maintains a Medicaid exclusion list. If your Compliance Resource Center, LLC 2013 1
organization has dedicated staff with time to regularly conduct screenings and the knowledge to handle verification of the results, then using an automated tool will certainly add efficiencies to your process and reduce time spent conducting single name searches on multiple exclusion lists. If your staff has limited time to routinely screen the workforce then another option is to outsource sanction screenings to a qualified vendor. Vendors offer different sanction screening options. At a minimum the vendor should screen all names provided to them against all applicable databases, verify and resolve any matches and provide certified report of the results. Also, look for vendors that offer the service at a flat rate versus pay per name. Pay per name fluctuates your costs month to month. Q: Do you recommend searching all state databases or just your state? If your state doesn't have a state database to check, are you required to check other states in which you do not operate? A: It is not necessary to screen all state Medicaid exclusion lists. If you operate in a state with a Medicaid exclusion list then it should be screened. It is a good practice to screen new hires who formerly worked in a state that has a Medicaid exclusion list. Q: Can I get an email copy of your PPT presentation please? A: The Monday following the webinar an email was sent to all attendees with a copy of the presentation, along with the sanction screening policy template and a recent publication on the migration of the GSA s Excluded Parties List System to the System for Award Management. If you did not receive the email please contact Jillian Bower at jbower@complianceresource.com Q: Will the monthly OIG LEIE emails suffice for the "monthly checks"? If so, will they also meet the requirement for documentation? A: Conducting a sanction check and documenting the efforts is more than checking OIG s monthly list of updates. All names need to be checked against the LEIE on a monthly basis. Documentation of when the sanction check was conducted, the name and additional identifiers used to screen the LEIE must be documented. In OIG s Updated Advisory Bulletin, the agency provides an example of documentation as a printed screen shot showing the results of the name search. Additionally, during new hire checks the OIG suggests screening maiden names and if a maiden is searched it must also be documented. Q: Is there a chart that identifies 1) all of the associations and 2) who is associated with? For instance, SAM, LEIE, OIG, GSA. Also, what is MED and can it be used instead of LEIE or SAM? A: The chart below lists the government agency and the exclusion and debarment database it maintains. Compliance Resource Center, LLC 2013 2
Government Agency Department of Health and Human Services Office of Inspector General General Services Administration Department of Treasury Office of Foreign Assets Control Food and Drug Administration U.S. Department of Justice Drug Enforcement Agency Office of Diversion Control Exclusion and Debarment Database List of Excluded Individuals and Entities (LEIE) System for Award Management (SAM) FKA Excluded Parties List System (EPLS) Specially Designated Nationals (SDN) List AKA Terrorist Watch List Debarment List Criminal Cases Against Doctors and Administrative Actions Against Doctors Medicare Excluded Database (MED) is a system used by payers to deny claims submitted from excluded providers. MED is not accessible to the public and is not designed to function as a screening tool for providers. It includes personally identifiable information and is only available to those with Individuals Authorized Access to the CMS Computer Services. Q: Relating to OIG self disclosure protocol are insurance carriers required to report all parties they identify to OIG? Does it apply to only LEIE excluded parties who submitted a claim? How often (when identified)? The OIG is only concerned about the LEIE and has no interest in or intentions to act upon hits in any other sanction file such at GSA or NPDB. The OIG's concern is only for sanction individuals included in any claims submitted to a federally financed health care program (e.g. Medicare, Medicaid, Child and Maternal Health programs). Q: Have CMP been applied to insurance carriers? Only to the excluded provider? CMP is applied only to false or fraudulent claims submitted to Medicare and Medicaid. The Civil Monetary Penalty Legislation (CMPL) is an administrative authority that parallels the Civil False Claims Act. The only difference is that the threshold for the Administrative process is lower than the Federal Court process. Is it necessary to screen all parties that you as a health care entity contract with or only those parties that are billing for patient care? The key to the answer is this: The CMS/OIG focus are on claims submitted for payment by Medicare/Medicaid. If the excluded party is not directly or indirectly included in an claim, then there is little enforcement interest and limited liability. If you are also asking about a contractor being used and you want to know how deeply you go into their staffing for any obligations for screening, that is a Compliance Resource Center, LLC 2013 3
different issue. For that, you screen only those that are in direct contact with the hospital but require as a condition of contract that they affirm they have an internal sanction screening program in place and they are carrying out that responsibility. To reiterate: Physicians that are not on the payroll; however, they have written an order, these physicians do not need screening. If your hospital employs or grants staff privileges to a physician then it has the obligations to ensure they are properly credentialed and are not on the LEIE. The OIG expects you will have all the necessary demographic information to make a proper determination as to whether they are not qualified to cause claims to be submitted to federally-financed health care programs (i.e. Medicare and Medicaid). Neither the OIG nor CMS has gone beyond that. They do not require or expect that hospitals to screen an unknown physician from out of their area referring once or occasional patient for care. Without specific knowledge of the physician beyond their name, screening in advance would delay treatment and that is not permitted. It also would place a large burden on the hospital to investigate and reach out to find necessary information to confirm whether or not a potential hit based upon a name alone. There are also complications about the hospital tracking down a physician in another state to gather identifiable information. However, should you screen a referring physician and find a potential hit, you create an additional burden to confirm it. If confirmed, the best practice is not back out the claim arising from the referral and eat the loss. In addition, there would be the question of what you do with the physician. Do you report the doctor to the OIG as a whistleblower and get involved in their work. Do you call the doctor to say that they cannot send patients to the hospital because they are excluded? This may rise to an accusation and a big argument, and/or drawn out explanations of a potential error or that they have corrected the issue, etc. The best practice is to NOT go beyond that called for by the OIG, CMS, or the State. The burden of sanction screening is great enough and creating an added burden on oneself is not a best practice. I will be happy to go in greater detail in person, if you need. Q: What are your thoughts on HC organizations conducting screening against the OFAC list? The Compliance Resource Center (CRC) includes the option, without additional charge, to screen against the Department of Treasury Office of Foreign Asset Controls (OFAC) Specially Designated Nationals List (Terrorist Watch List). It is not mandated or specifically encouraged by either OIG or CMS. The decision to do this is governed by local considerations. For those clients of CRC, it is an easier decision, because they can easily opt for it as part of the larger sanction screening. The difficulties of screening against the OFAC is that a majority of names included in OFAC are transliterated, meaning the letters are translated from a different alphabet or language form into the closes corresponding letter or sound in English. This easily results in many false hits. I have a lot more information on the subject and would be happy to discuss it in greater detail, if you like. Compliance Resource Center, LLC 2013 4
Q: If we have emailed the OIG Exclusion Staff on a name that there was no SSN or DOB available online, and the OIG responded that they did not have any other information available, is there any other action we have to take? The real burden is on you to contact the person that you suspect may be on the Exclusion list for additional demographic information. However, let me note that the Compliance Resource Center (CRC) maintains on line additional information resources to help resolve "potential hits", such as the NPI and UPIN database. Q: I check all employees each month but do I need to check all agencies that our company works with also, such as Hospitals, Board of Directors. Is this something that I should be doing? The key to answering this question is that the CMS and OIG focus their concerns upon claims and cost reports that may include costs from a sanctioned person or entity. For example, it is quite likely that members of the Board would not meet that definition. Therefore, it would not make much sense to screen them monthly. The same would hold true for volunteers, but having noted that I would say the best practice would be to screen them upon engagement and annually thereafter. As for hospitals, they could not be operating if they were on the exclusion list, so by definition they are okay. Follow-Up Q: Just to be clear... I only need to screen people that we would pay or who we would provide a service too... correct? The answer is that the government is concerned about any individual or entity that is included, directly or indirectly, in a claim or cost report for payment by federally funded health care programs (i.e. Medicare/Medicaid). Q: Please speak to the snowbird patient with the out of state doctor who presents for outpatient lab work. Why is that not considered fraudulent billing? The key to this answer is knowledge. If your hospital employs or grants staff privileges to a physician then it has the obligations to ensure they are properly credentialed and are not on the LEIE. The OIG expects you will have all the necessary demographic information to make a proper determination as to whether they are not qualified to cause claims to be submitted to federally financed health care programs (i.e. Medicare and Medicaid). Neither the OIG or CMS has gone beyond that. They do not require or expect that hospitals to screen an unknown physician from out of their area referring once or occasional patient for care. Without specific knowledge of the physician beyond their name, screening in advance would delay treatment and that is not permitted. It also would place a large burden on the hospital to investigate and reach out to find necessary information to confirm whether or not a potential hit based upon a name alone. There are also complications about the hospital tracking down a physician in another state to gather identifiable information. However, should you screen a referring physician and find a potential hit, you create an addition burden to confirm it. If confirmed, the best practice is Compliance Resource Center, LLC 2013 5
not to back out the claim arising from the referral and eat the loss. In addition, there would be the question of what you do with the physician. Do you report the doctor to the OIG as a whistleblower and get involved in their work. Do you call the doctor to say that they cannot send patients to the hospital because they are excluded? This may rise to an accusation and a big argument, and/or drawn out explanations of a potential error or that they have corrected the issue, etc. The best practice is to NOT go beyond what is called for by the OIG, CMS, or the State. The burden of sanction screening is great enough and creating an added burden on oneself is not a best practice. Q: In a large city you have multiple physicians who don't have privileges at your hospital but routinely order out-patient tests. Would this be considered a relationship and you have to screen? If the physicians are not employees or have not been granted staff privileges, they do not meet the definition of those that must be screened. I would not go beyond what is called for by the OIG and CMS. That is burdensome enough. However you might consider (carefully) screening physicians who frequently refer patients to your facilities. There are some additional considerations before deciding to do this. (1) You may have some difficulty making positive ID on a raw hit because you don't have all the information you need to confirm identity. (2) This may result in your contacting the physician to request additional data (not likely to be well received). (3) The refusal to give you needed additional information creates another problem for you as what other steps you have to take as reasonable due diligence. (4) If you confirm the individual is on the LEIE, you will have to pay back any claims related to their referral as a safety measure for the hospital. (5) If they are confirmed on the LEIE, you will have to decide how to handle the physician, such as notifying them in writing that they should not refer any more patients to the hospital; OR perhaps that you report them to the OIG. All in all, I would avoid screening referring physicians of this type wherever possible. You may be opening the door to more problems than needed by. You don't want to create legal entanglements with these physicians or get a reputation for being hostile to physicians who do not have staff privileges at your hospital. Keep in mind that even if a physician is on the LEIE, you don't know the whole story. They may be appealing the listing or they may be in the process of being deleted from the listing with bureaucratic delays Q: Can the third party payers audit us and penalize us for not doing this? This is not the state Medicaid but Medicare D plans. For Medicare Managed Care Plans, it is a condition of enrollment/participation that they meet define sanction screening guidelines. Compliance Resource Center, LLC 2013 6
Q: Do volunteers or research coordinators who are not employed by the hospital have to be screened? If they are not included, directly or indirectly, in claims or cost reports submitted for payment to Medicare or Medicaid, the answer is no. However, it is a best practice to screen these people at the time they are affiliated with the hospital. It is always good to know if someone is in your work environment who has a record of past transgressions. This practice is more for avoiding potential tort liability or private litigation for having someone commit a tort or do something creating a liability who you should have know had a history of bad conduct or other wrongdoing. Compliance Resource Center, LLC 2013 7