Editor’s note: This article was submitted by the Texas Office of Inspector General as part of an educational campaign for physicians and other health care professionals. Physicians should consult with their own retained counsel.
One way the Texas Health and Human Services (HHS) Office of Inspector General (OIG) protects the health and welfare of people receiving Medicaid is by preventing certain people or businesses from participating as service providers. Medicaid providers are responsible for making sure they don’t employ or contract with someone listed on the state or federal OIG exclusion lists. The requirements apply to both health care practitioners (e.g., nurses, medical assistants, and other direct care providers) and other employees, such as clerical staff.
What leads to exclusion?
Federal and state OIGs may prohibit people or businesses from participating as Medicaid providers for several reasons, including Medicaid fraud convictions, patient abuse, Medicare program exclusion, or licensing issues.
In 2021, 201 entities – including 28 physicians across a variety of specialties – were excluded from participation in Texas HHS programs. The exclusion terms for physicians ranged from six years to indefinitely. Physician exclusions typically arise at the OIG as a result of a notification from the Texas Office of Attorney General Medicaid Fraud Control Unit of a state or federal criminal conviction, or a notice from the Centers for Medicare & Medicaid Services that a provider is listed on a particular federal database.
The consequences of exclusion
When a person or entity is excluded from Medicaid or other HHS programs, they may not request or receive payment for providing goods or services performed under Medicaid or any other HHS program. Excluded physicians may not assess care or prescribe services to HHS program recipients. A physician employing an excluded person may not bill Medicaid or any other HHS program for the excluded employee’s services. Submitting claims for payment involving an excluded employee’s services could result in: recoupment of paid claims or an amount corresponding to a portion of salary and benefits related to the ineligible employee; program termination; program exclusion; or monetary penalties.
An employer’s responsibility
The OIG settled a case in December with a physician practice in South Texas that employed an individual who was excluded from Medicaid participation. The practice had checked the exclusions list at the time of hire, but the individual had been added to the exclusions list two months later. The practice worked collaboratively with the OIG to resolve this issue, and the agency agreed to a settlement of $1,095.
Many exclusion cases come to the OIG through a referral, but the agency also initiates exclusion reviews. A 2020 initiative identified two clinics and a nursing home that were later given the opportunity to self-identify the errors and length of time excluded individuals were employed. The violations among the three providers were settled for $163,532.
Physicians are required to screen all employees for exclusion from Medicaid on a monthly basis. Under the OIG’s rules, a practice may be subject to administrative sanctions for failing to document that its employees or contractors are not excluded, or for failing to notify the OIG after identifying an excluded employee.
The Texas Exclusions List is updated daily. You can access the state list via the Texas OIG website. The federal list and an instructional video for using it are available at exclusions.oig.hhs.gov.
NOTICE: This information is provided as general information and is not intended to provide advice on any specific legal matter. This information should NOT be considered legal advice and receipt of it does not create an attorney-client relationship. This is not a substitute for the advice of an attorney. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought.
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