Ex­clu­sion ef­forts

OIG pushes for monthly black­list cross-check

Modern Healthcare - - THE WEEK IN HEALTHCARE - Joe Carl­son

Amid loom­ing short­ages in health­care work­ers, one branch of the fed­eral govern­ment is ramp­ing up ag­gres­sive ef­forts to keep some of them far away from pa­tients. HHS’ Of­fice of the In­spec­tor Gen­eral adds about 300 new names ev­ery month to its List of Ex­cluded In­di­vid­u­als and En­ti­ties (LEIE) that are banned from work­ing for Medi­care and Med­i­caid. The growth of the health­care black­list is ex­pected to ac­cel­er­ate in tan­dem with the widen­ing crack­down on health­care crooks, fraud­sters and clin­i­cians who don’t re­pay govern­ment-backed stu­dent loans.

All told, 51,729 peo­ple were banned from car­ing for govern­ment-in­sur­ance pa­tients, as of the re­lease of the lat­est ex­clu­sion list May 14. That same day, a national fraud crack­down in eight cities rounded up an­other 89 peo­ple ac­cused of crimes that could end with their ex­clu­sions.

“Th­ese num­bers are pretty sig­nif­i­cant, and they are go­ing to keep driv­ing up. I like to see it,” said Lynn Gor­don, a Chicago part­ner in the health­care prac­tice at Un­garetti & Har­ris. “Most health­care in this coun­try is pretty com­pli­ant. We have qual­ity providers and they truly care about de­liv­ery. But if you have even a very nom­i­nal per­cent­age who don’t, the abuses can be ter­ri­ble.”

More than 5,500 doc­tors and nurses joined the list af­ter con­vic­tions for pa­tient abuse or ne­glect, while an­other 14,200 peo­ple were ex­cluded af­ter their lo­cal li­cens­ing boards dis­barred them for un­stated rea­sons. Most ex­clu­sions last five years, but some are longer and a few are life­time bans.

Con­rad Mur­ray, the per­sonal physi­cian who at­tended to pop star Michael Jack­son in his fi­nal hours, is on the list. So is nurse and con­victed se­rial killer Charles Cullen. Bal­ti­more-area car­di­ol­o­gist Mark Midei was added af­ter his li­cens­ing board con­cluded he had per­formed scores of un­needed surg­eries. For­mer Syn­thes North Amer­ica Pres­i­dent Michael Hug­gins was ex­cluded af­ter a con­vic­tion for fail­ing to stop a “rogue clin­i­cal trial” of a bone ce­ment on un­sus­pect­ing pa­tients in 2003-04.

Af­ter years of murky stan­dards, HHS’ in­spec­tor gen­eral an­nounced this month that ev­ery health­care em­ployer in the na­tion that cares for Medi­care pa­tients should per­form monthly checks of their en­tire pay­roll ros­ters—in­clud­ing tem­po­rary nurses, doc­tors and sub­con­trac­tors—to see if they’re em­ploy­ing peo­ple they shouldn’t.

As a com­pli­ance di­rec­tor in South Florida, Ken Resmini is on the front lines of this bat­tle. He said the new stan­dards are go­ing to make it ex­pen­sive or ex­ces­sively time-con­sum­ing for larger em­ploy­ers to com­ply with the new screen­ing re­quire­ments.

Resmini is the chief com­pli­ance and in­ter­nal au­dit of­fi­cer of the pub­licly sup­ported Me­mo­rial Health­care Sys­tem in south­ern Broward County, an area awash with ex­cluded providers by virtue of its be­ing one of the hottest hot spots in the na­tion for health­care fraud and the ac­com­pa­ny­ing flood of ex­clu­sions.

“Vir­tu­ally ev­ery type of health­care fraud in the in­dus­try starts here and em­anates out to the rest of the coun­try,” Resmini said.

Me­mo­rial im­ple­mented monthly checks of all em­ploy­ees against the ex­clu­sion list last year, he said, at the same time that the sys­tem hired an out­side con­trac­tor to do the work at a cost of about $1,500 a month.

In the past, when the sys­tem checked its em­ploy­ees against the list only once a year, the process lasted sev­eral weeks and con­sumed sev­eral hun­dred hours of em­ployee time, which is why he out­sourced the job. Yet then, as now, the checks don’t tend to turn up many peo­ple try­ing to sneak back into the sys­tem.

“We find very, very few peo­ple sanc­tioned,” he said. “But we have seen an in­crease in ac­tion be­ing taken by the fed­eral govern­ment. They are ei­ther find­ing more peo­ple who are sanc­tioned work­ing in the busi­ness, or they are just pub­li­ciz­ing it more.”

A Mod­ern Health­care anal­y­sis of two fed­eral data­bases—the OIG’s LEIE and the CMS’ National Prac­ti­tioner Data Bank (NPDB) Pub­lic Use File—found that the most com­mon rea­son for some­one to be barred from car­ing for govern­ment pa­tients is when a lo­cal or state li­cens­ing au­thor­ity strips them of a li­cense.

NPDB data—which in­cludes more pre­cise rea­sons for ex­clu­sions but omits names— show that one of the most com­mon rea­sons for get­ting barred is fail­ure to re­pay HHS-backed stu­dent loans: 5,417 peo­ple are cur­rently kicked out of Medi­care for that.

The num­ber of an­nual ex­clu­sions re­lated to stu­dent loans has grown steadily in the past decade, peak­ing at 517 in 2011 be­fore de­clin­ing again. “That is tied to the econ­omy, and I would ex­pect that to con­tinue to rise,” Un­garetti’s Gor­don said.

Those same NPDB data show that peo­ple who do nurs­ing-re­lated work were by far the most com­mon tar­get for ex­clu­sions: at least 27,000 ex­clu­sions and grow­ing quickly each month.

Physi­cians came in sec­ond with 6,900 ex­clu­sions, fol­lowed by nearly 3,000 chi­ro­prac­tors, about 2,200 den­tists and about 2,000 phar­ma­cists. One nurs­ing home ad­min­is­tra­tor was ex­cluded.

The lit­er­a­ture on prob­lem­atic clin­i­cians sug­gests some will try to get back into health­care by work­ing for tem­po­rary-place­ment agen­cies. But the in­spec­tor gen­eral’s of­fice’s rules and con­comi­tant in­crease in en­force­ment are mak­ing that tougher, ob­servers say.

Gail Harvey, a vice pres­i­dent with physi­cian-staffing firm LocumTe­nens.com CVO, said she’s not aware of any provider em­ployed by her com­pany ever be­ing dis­cov­ered as ex­cluded. In fact, she said she’s never heard of any­one be­ing re­jected for em­ploy­ment be­cause of an LEIE screen­ing.

“They know not to ap­ply,” Harvey said, adding that ap­pli­cants have to fill out de­tailed ques­tion­naires that ask about ex­clu­sions be­fore the screen­ings take place.

How­ever, Harvey said, many peo­ple who are banned from Medi­care may not re­al­ize that they’re not au­to­mat­i­cally re­in­stated af­ter the ex­clu­sion ex­pires—they have to reap­ply to the in­spec­tor gen­eral’s of­fice and be ac­cepted back into fed­eral health­care pro­grams.

“Just be­cause that five or 10 years are ex­pired, you are still not el­i­gi­ble un­til you reap­ply,” she said. “What I have seen in the past is that there is some mis­un­der­stand­ing be­tween the govern­ment and the provider.”

Com­pli­ance at­tor­ney Michael Clark of Duane Mor­ris has seen that hap­pen first­hand. He had a Texas physi­cian-client about a decade ago whose past ex­clu­sion was ex­pired, but he had not been reac­cepted to Medi­care be­cause he didn’t know about the rule.

“I told my client, you are go­ing to be fired. He didn’t want to be­lieve it,” Clark said. “Well, of course, the guy was fired.”

The case posed a ma­jor fi­nan­cial prob­lem for the hos­pi­tal as well, be­cause un­der the ex­clu­sion rules, a hos­pi­tal has to give back any money that was paid for ser­vices ren­dered to Medi­care pa­tients by ex­cluded in­di­vid­u­als. For a hos­pi­tal-em­ployed physi­cian work­ing over mul­ti­ple years, that fig­ure adds up quickly—it topped the “mul­ti­ple mil­lions” in this case.

That par­tic­u­lar case was re­solved through a self-dis­clo­sure to the govern­ment by the hos­pi­tal that avoided any re­pay­ment be­cause of un­cer­tainty about the orig­i­nal con­vic­tion. Since then, it’s be­come even eas­ier for the govern­ment to ex­clude peo­ple for acts that weren’t even con­sid­ered fraud­u­lent un­til re­cently.

“I don’t have a prob­lem ex­clud­ing felons. But when you get down to mis­de­meanors and things like that, it is a lit­tle more prob­lem­atic,” Clark said. “Th­ese are not all nec­es­sar­ily black-and-white cases. They can be­come pretty gran­u­lar on in­ter­pre­ta­tions of cod­ing and re­quire­ments.”


Con­rad Mur­ray, the per­sonal physi­cian who at­tended to pop star Michael Jack­son in his fi­nal hours, is on HHS’ list of those ex­cluded from work­ing for Medi­care and Med­i­caid.

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