Category: Office of Inspector General

The Medicare Exclusion Database (MED) and You

We are often asked if we have the Medicare Exclusion Database (MED) in our system. We do not collect the MED directly from CMS, but we do have this data in our system. The reason for this is because we collect our data from the primary source, as the Office of Inspector General is the primary source, we do not see a need to collect this data from the CMS as well.

We are precise in our collection. We believe in quality over quantity here at Typhoon Data. We don’t see a need in collecting “Everything”. Instead, we collect the pertinent, actionable, and primary source records that can help you and your clients get a full and complete picture on your health care providers. We take pride in our knowledge of these sources.

Last week, we got official and final confirmation that collecting the MED is not necessary.

Exact verbiage from CMS in regards to the MED:

“The Medicare Exclusion Database (MED) is a national database populated with information from the Office of the Inspector General.”

Reviewing Sanctions – What does the word “sanction” really mean?

sanc·tion
ˈsaNG(k)SH(ə)n/
noun
a threatened penalty for disobeying a law or rule.
“a range of sanctions aimed at deterring insider abuse”

Sanction is a term that is often used when referring to databases like ours. I’m often asked “do you have a sanction database?” or “is this a sanction check?”

We do have sanctions in our dataset. For example, Office of Foreign Assets Control (OFAC) has many lists of sanctioned individuals.

However, it’s a common misconception that an entire dataset like ours is a Sanction Database or Sanction search. Sanctions usually refer to Financial Sanctions. Financial Sanctions are restrictive measures imposed on individuals or entities in an effort to curtail their activities and to exert pressure and influence on them.

Our focus at Typhoon Data is to assemble a data set of all Federal and State Exclusions and Board Disciplinary Actions. Many organizations publish critical information for our customers, and we gather all of it, including Opt out affidavits, abuse registries, and imposter lists.

Federal and State Exclusions are Individuals and Entities that are excluded from participation in Medicare, Medicaid and other federal and state healthcare programs.

Termination occurs when the Medicare program, a State Medicaid program, or CHIP has taken an action to revoke a provider’s billing privileges, a provider has exhausted all applicable appeal rights or the timeline for appeal has expired, and there is no expectation on the part of a provider or supplier or the Medicare program, State Medicaid program, or CHIP that the revocation is temporary.

Disciplinary Actions (aka Board Actions) is the language used to describe the types of actions that occur at a board level. These can be minor, like a fine or civil penalty. Or they can be major, like a revocation or suspension of a medical license.

The difference between these? Though these both are targeted to the medical world, Disciplinary Actions cannot occur unless you are licensed, or attempting to become licensed. However, anyone can become excluded. Many times, a severe enough action will result in an exclusion, however this is not always the case.

Our dataset has much more than just these sources. We have a myriad of sources that are going to help give you the complete picture on your provider. We include Medicare Opt-Out’s, Abuse Registries, License Conditions, Imposter Alerts, Federal and State Actions, Press Releases, etc. Often times all of these different types of data fall into one category. Sanctions.

It would appear that the term “sanction” has been adopted to include any or all of the possible actions taken by the Federal government, state governments, or boards. As has been noted the terminology used by the many reporting entities varies greatly including;
Exclusion
Termination
Board Action
Medicare Opt-Out
Abuse Registries
License Condition
Imposter List
Federal and State Action
Press Release

That’s why, when asked if we have a sanction dataset, I’m always careful to ask follow-up questions about what specific sources the customer might want or need. If my customer is unsure of what exactly they need, we try to always stay up to date on the compliance regulations so we can offer them exactly what they need to meet the standards.

Let’s Talk about Primary Source Data

What is a Primary Source?

A Primary Source is the original source repository or the source that legally issue licenses, discipline, education, training, or examination. A couple of examples of this in our industry are:

California Board of Registered Nursing
Office of Inspector General, U.S. Department of Health and Human Services (OIG)
Pharmacy Technician Certification Board (PTCB)
Centers for Medicare and Medicaid Services (CMS)

What is a Primary Source Data?

Primary Source Data is the license, certification, or disciplinary data directly from the original source. This means the data we collect is directly from the primary source. This data includes exclusion information, opt-out affidavits, license issuance, and disciplinary records. Another caveat to primary source data is we do not change, adjust, or modify the record found at the primary source.

Why is Primary Source Data Important?

Primary source data is important to your company as a way to confirm that your employee can be authorized to work for your facility.

The OIG has the authority to exclude individuals and entities from participation in federal healthcare programs. Any organization or individual who hires excluded parties may be subject to civil monetary penalties (CMP). To avoid these penalties, the LEIE recommends (as a part of the Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs) that you check their database upon hire, and on an ongoing monthly basis.

Primary Source data is not only important to us, it’s important to accrediting bodies (i.e. The Joint Commission, URAC) and exclusion bodies (i.e. OIG, GSA).

How does the OIG determine who to Exclude

The OIG (Office of Inspector General) has updated their “Criteria for implementing section 1128(b)(7) exclusion authority.”

Here is a link to the OIG write up about the new standards. https://oig.hhs.gov/exclusions/files/1128b7exclusion-criteria.pdf

 

The OIG has a mission “to protect the integrity of Department of Health & Human Services (HHS) programs as well as the health and welfare of program beneficiaries.”  To fulfil this mission the OIG creates resources to help the health care industry comply with the Nation’s Fraud laws. They also work to educate the public, to protect them from fraud, and to have the public report suspicious activities. The Office of Counsel to the Inspector General (OCIG) is responsible for imposing program exclusions and civil monetary penalties (CMP) on health care providers. The excluded health care providers are included on a list known as the List of Excluded Individuals/Entities (LEIE). This article will summarize the current method the OIG uses in determining the action taken against an individual or entity.  

 

Risk Spectrum

The OIG will be using a scale to determine the action taken, ranging from Exclusion to imposing Integrity Obligations to Release. There are a number of factors included in the risk assessment, which then determine the course of action the OIG will take. The categories included in this evaluation are; The Nature and Circumstance of the Conduct, Conduct During the Investigation, Significant Ameliorative Efforts, and History of Compliance.

 

Factors applied to determine the action taken

These Factors have an impact on the risk assessment, they indicate a higher risk, a lower risk, or can be neutral in determining what action will be taken by the OIG. Here is a quick summary  

  1. Nature and Circumstance of Conduct
    1. If the conduct had an adverse impact on Individuals
    2. Financial loss- the greater the amount of loss or intended loss to the Federal healthcare programs the greater the risk assessment.
    3. Conduct that occurs as part of a pattern, or over a period of time, or is continual or repeated indicates a higher risk
    4. Conduct that is currently ongoing or was continued until the Government began an investigation leads to a higher risk
    5. A lack of criminal sanctions has no impact on the level of risk
    6. Leadership Role- if the individual organized, led or planned the unlawful activity
    7. History of Prior Fraudulent Conduct, including prior judgements or convictions, refusal to enter into a Corporate Integrity Agreement (CIA), having a prior CIA, and failing to cooperate with OIG while under a CIA all indicate higher risk levels
  2. Conduct during Investigation
    1. Overall response to the investigation
      1. Did the individual obstruct or impede the investigation or attempt to do so?
      2. Was anything done to conceal the conduct from the government
      3. The inability for a person to engage in the conduct again for whatever reason has no effect on the risk assessment
      4. While a prompt response to the subpoena has no effect, failure to comply within a reasonable time frame would result in a higher risk assessment.
    2. Internal Investigation
      1. If an internal investigation began prior to the individual or entity learning about the Government’s investigation, and any information gained as a result is shared with the government, risk will be lower.
      2. If the person self-disclosed the conduct prior to the Government’s investigation, this would also result in a lower risk assessment.
    3. Cooperation
      1. If the person cooperates with the Government the risk assessment is lower.
      2. If through the person’s cooperation a criminal, civil, or administrative action is taken against an individual or entity, then risk assessment is lower.
    4. Resolution
      1. Adverse Licensure action increases the risk
      2. A criminal resolution including either a conviction, a Deferred Prosecution Agreement, or a Non-Prosecution Agreement. Any of these actions will increase risk which varies depending on the type of criminal action taken
  3. Significant Ameliorative Efforts
    1. Significant changes in the entity
      1. The entity taking appropriate action against the individual lowers risk.
      2. If the entity has dedicated more resources to insure compliance this will also lower the risk.
      3. If after the conduct has stopped, the entity has been sold to a non-affiliated, independent third party that has a history of compliant participation in Federal healthcare programs, the risk will be lower
      4. If there has been additional training, or a mentor assigned or other mitigating steps have been taken that will also lower the risk assessment.
  4. History of Compliance
    1. If the person has a history of appropriate timely self-disclosure made in good faith the risk will be lower
    2. Having a compliance program in place has no impact on risk level, but not having a compliance program in place that incorporates the U.S. Sentencing Commission Guidelines Manual’s seven elements of an effective compliance program will increase the risk.

 

Summary

This new criteria helps clarify the process for how a health care provider can find themselves excluded by the OIG. If an individual or entity is on the LEIE, then “no payment will be made by any Federal health care program (ie; medicare or medicaid) for items or services furnished, ordered, or prescribed by the excluded individual in any capacity.” The OIG can impose penalties on entities and individuals who bill the Federal government for services while excluded by the OIG. These Civil Monetary Penalties (CMP) can be up to $10,000.00 per occurrence plus treble damages.

At Typhoon Data one of our services is to verify that providers are not on the LEIE. We offer a variety of services to help maintain compliance.

 

If you would like to discuss our solutions, feel free to contact me, David Rees at (800) 780-5901 Ext 705 or email drees@typhoondata.com.