Today the U.S. Department of Health and Human Services Office of Inspector General (“OIG”) published an updated Special Advisory Bulletin (“Bulletin”) that provides guidance to the health care industry on the scope and effect of OIG exclusion and best practices for screening employees and contractors to determine whether they are excluded persons.

The Bulletin follows the OIG’s Special Advisory Bulletin published in 1999 on the effect of exclusion from participation in federal health care programs (“1999 Bulletin”).  The Bulletin answers questions received by the OIG since the 1999 Bulletin, including through self-disclosures and past advisory opinions.  The Bulletin also incorporates statutory amendments that have strengthened and expanded the OIG’s exclusion authority (e.g., HIPAA, the Balanced Budget Act of 1997, and ACA).

The Bulletin offers the following guidance on the scope and frequency of screening employees and contractors:

When to Screen

The Bulletin reinforces the OIG’s guidance that providers should check the OIG’s list of excluded individuals and entities monthly in order to minimize potential overpayment and civil monetary penalty (“CMP”) liability for employing or contracting with an excluded person. 

Who to Screen

The OIG recommends that to determine which individuals and entities to screen, providers should review each job category or contractual relationship to determine whether the item(s) or service(s) being provided are directly or indirectly, in whole or in part, payable by a federal health care program. If the item(s) or services(s) are payable by a federal health care program, the OIG recommends that providers screen all persons that perform in that job category or under that contract.

According to the OIG, providers should follow the same analysis with regard to employees, contractors, subcontractors, and employees of contractors. For example, the OIG specifically recommends that providers screen nurses provided by staffing agencies, physician groups that contract with hospitals to provide emergency department coverage, and billing or coding contractors.  However, the OIG notes that if providers choose to rely on screenings conducted by contractors, as opposed to conducting their own screening, providers should validate the contractors’ screenings (e.g., request and maintain screening documentation).

How to Report Employment/Contract with an Excluded Person

The Bulletin directs providers that identify potential CMP liability on the basis of the employment of, contracting with, or arranging with an excluded person to use the OIG’s Provider Self-Disclosure Protocol to disclose and resolve the potential liability.