As evidenced by an uptick in reported civil money penalty (CMP) settlements, ranging from $10,000 to $353,248.82, the Office of Inspector General (OIG) is holding nursing home providers’ feet to the fire for employing individuals excluded from federal health programs, including Medicare and Medicaid.
By July of this year, reported settlements for alleged incidents of employment of excluded individuals—who were listed as nurses in a number of the cases—topped the numbers reported all of last year.
In July alone, there were three cases of alleged false and fraudulent claims, primarily involving the employment of individuals that facility staff knew or should have known were excluded from participation in federal health care programs.

What Does Excluded Mean?

An excluded individual is someone whom OIG has deemed disbarred or otherwise ineligible from participation in all federal health care programs. Activities that exclude an individual or entity from participation include criminal offenses, such as Medicare or Medicaid fraud; patient abuse or neglect; and felony convictions for health care–related fraud, theft, or other financial misconduct, as well as the unlawful manufacturing, distributing, prescribing, or dispensing of controlled substances.

Federal law prohibits skilled nursing facilities that participate in federal health care programs from receiving payment for services provided by disbarred people.

These services include both patient care and non-resident services such as administrative, clerical, and other types. When facility staff either self-report or are found to have billed for services during the time that
a disbarred individual provided services, CMPs are likely to be assessed against the facility.

While the mandate to monitor the OIG exclusion list has been around for a long time, nursing home staff can easily skip this important step in the hiring process. OIG has sought to make compliance as simple as possible by posting a searchable list of excluded entities and individuals at
The requirement is to check individuals being considered for employment, but staff should be aware that it also includes contractors and vendors.

The Patient Protection and Affordable Care Act mandates that once an individual is excluded in one state, he or she is to be excluded in all states. It is advisable to check not only the national database but also the state-specific database if one is available.

When using temporary employment agencies, verify that the agency has a system in place whereby potential contract staff are screened against OIG’s list of excluded individuals before being sent to the facility for work activities.

Conducting a pre-employment check may not be enough. The OIG exclusion list is updated monthly. Since there is a lag time between when individuals are deemed disbarred and when they appear on the exclusion list, it is a good idea to check the list monthly against all employees, contractors, and vendors working in the building. This may sound like a Herculean task, so consider hiring a third-party vendor to cross-check facility-engaged workers against the OIG list.

Self-Reporting A Must

In one case listed on the OIG enforcement page, a disbarred individual self-reported the violation by her employer, resulting in an expanded OIG investigation for additional violations, which were found. This resulted in increased CMPs assessed against the provider.

Nursing home staff have a duty to self-report violations to OIG. Self-reporting violations can reduce the CMPs, which, at a minimum, can be 1.5 times the single damages, but OIG reserves the right to increase damages if it deems them appropriate.

According to OIG’s Provider Self-Disclosure Protocol bulletin, when reporting to OIG, providers must include:
■ The identity of the excluded individual and any provider identification number;
■ The job duties performed by that individual;
■ The dates of the individual’s employment or contractual relationship;
■ A description of any background checks that the disclosing party completed before and/or during the individual’s employment or contract;
■ A description of the disclosing party’s screening process (including any policy or procedure that was in place) and any flaw or breakdown in that process that led to the hiring or contracting with the excluded individual;
■ A description of how the conduct was discovered; and
■ A description of any corrective action (including a copy of any revised policy or procedure) implemented to prevent future hiring of excluded individuals.

Corporate Compliance Follow-Up

In addition, before disclosing the employment of an excluded individual, a disclosing party must screen all current employees and contractors against the List of Excluded Individuals and Entities. Once this has been done, the disclosing party should disclose all excluded persons in one submission.

As part of an active corporate compliance program, staff should establish policies and procedures outlining how they will ensure that no excluded individuals or entities are involved in facility operations.

When violations occur, determine the process that will be followed for self-reporting incidents to OIG.
The corporate compliance officer and facility council should be involved in the review of information and protocols before, during, and after reportable incidents or when OIG investigations are conducted.

Judi Kulus, NHA, RN, MAT, C-NE, RAC-MT, is vice president of curriculum development for the American Association of Nurse Assessment Coordination. She can be reached at (800) 768-1880.