In a previous article where I discussed the purpose of a compliance program I mentioned that recent enforcement/ prosecution trends indicate that the government is not necessarily seeking prison time for convictions. The trend is to exclude providers from participation in the Federal health care programs and require repayment of Civil Monetary Penalties under the False Claims Act. All this to say the government will kick you out of the program and provide you a structured repayment program that (like a mortgage) may take many years to repay.
Once a provider is excluded from participation with a Federal health care program it is then unlawful for the provider to directly or indirectly order or prescribe a medical or other item or service during a period in which the person is, in the case where the person knows or should know that a claim for such medical or other item or service will be made under such a program.
Additionally, it is unlawful to knowingly make or cause to be made any false statement, omission, or misrepresentation of a material fact in any application, bid, or contract to participate or enroll as a provider of services or a supplier under a Federal health care program. ACA section 10606(b) states, “With respect to violations of this section (Healthcare Fraud), a person need not have actual knowledge of this section or specific intent to commit a violation of this section.’’
Wait, it gets better. This section applies not only to practitioners, but any employee who in your organization who may be excluded from participation with a Federal health care program. Licensed practitioners would likely know there are excluded and may move to another state from which they are excluded to avoid detection. This suggests that dentists and dental organizations need to check their incoming associates even though the state Medicaid program will ensure the associate is not excluded. The onus is on the billing provider to ensure the treating provider is not excluded (initially or at any time during the course of their employment) while claims are submitted and the treating provider benefits from the claim.
What’s more is that billing providers need to ensure that their employees (licensed or not) are not excluded from benefiting (directly or indirectly) from payment from a Federal health care program. What this means is billing providers need to check ALL employees (initially and periodically) to ensure they do no appear on an exclusion list. There are two federal lists. Some states have their own lists.
It is not okay to assume that you, your associates or employees are not on an exclusion list. You have to check. Remember my mantra, “If it is not written, it did not happen.” It will do you no good to conduct exclusion checks if you do not document the checks. You need to show what names you checked (exact spelling). It is essential you check married names, maiden names and known aliases of employees.
There is no set rule as to how often providers need to conduct exclusion checks. However, most organizations check either monthly or quarterly. The sooner you catch a newly excluded employee the less money your organization would have to repay to the government for submitting claims that involved excluded persons. Once the excluded person in your organization is identified and confirmed you have 60 days to identify claims associated with the excluded employee and then repay the government for those ‘false’ claims without incurring liability. After the 60 day mark you may be on the hook for repayment of up to three times the about of every claim submitted and penalties up to $11,000 per claim. This makes a great case for conducting monthly exclusion checks to limit your risk and control your liability.
People can be excluded for certain criminal convictions, convictions/judgments specifically related to healthcare fraud, and even non-payment of student loans. As I mentioned non-licensed employees may never know that their name appears on an exclusion list. If you submit claims to a Federal health care program you must conduct exclusion checks to protect your organization.
What happens to an employee or contractor who is on an exclusion list? Well, you may have to suspend or terminate the employee or contractor until they clear their name (and you can verify the y did so). This pertains to every employee from the CEO to sterilization technicians, even consultants you who help you grow your practice. Check them all. Check them often. Make sure you can prove it!
Of the hundreds of dental providers I have worked with in the last three years I have only come across two who conduct and properly document exclusion checks, which is separate from a criminal background check. This could suggest that a lot of dentists could be sitting on a lot of surprises within their organizations.
Remember, the government does not need to prove you knew an excluded person worked for your organization while you submitted claims for payment from a Federal health care program. I know it really sucks, but it is on you to do the legwork and be ‘in-the-know’ about you, your associates and staff’s status on all exclusion lists. As I mentioned there are multiple lists to check and many states have their own (Texas has four). Sometimes the state lists coincide with the federal list. However, it is unwise to assume this is always the case.
There are a handful of companies who can help you with conducting exclusion checks including Dental Compliance Specialists. Unless you wish to handle this task yourself find someone you trust to hand this important responsibility off to, so you can focus on the tasks that help your provide for your patients.