OIG exclusion list screening for offshore billing staff: what the rules say and what they leave open

When OIG excludes a person, no Medicare, Medicaid or other federal health care program payment may be made for items or services that person furnishes, or that are furnished at the person’s medical direction or on the person’s prescription. OIG’s special advisory bulletin on the effect of exclusion says the bar goes beyond direct patient care: an excluded person may not furnish administrative and management services that a federal program pays for, and the bulletin lists billing and accounting among its examples, unless the work is wholly unrelated to federal programs.

The penalty falls on the party that engages the excluded person. A person that arranges or contracts, by employment or otherwise, with someone it knows or should know is excluded can face a civil money penalty for items or services a federal program pays for, directly or indirectly. The statute sets up to $20,000 per item or service, and HHS’s inflation-adjusted table lists $25,595, with an assessment of up to three times the amount claimed and possible exclusion (42 USC 1320a-7a(a)(6); 45 CFR 102.3). The 2013 bulletin gives an older, lower figure. OIG says the test is whether the excluded person takes any part in furnishing items or services a federal program pays for, whether as an employee, a contractor or a volunteer.

• OIG names billing or coding contractors among the contractors it recommends screening, and says the same analysis applies to a contractor’s subcontractors and employees.
• A provider may rely on a contractor’s screening, but OIG recommends validating that the contractor is doing it, and says the provider stays subject to overpayment liability and may carry penalty liability if it does not make sure an appropriate screening was performed.
• OIG’s guidance for third-party billing companies says a billing company should not employ or contract with people who have been sanctioned or excluded, and that its policies should prohibit it.

None of the statutes, regulations or OIG documents read for this guide limits these rules by where the work is done, and none addresses staff located outside the United States. The LEIE’s online verification asks for a Social Security number. No OIG document read says how to verify a possible match for a person who has none; OIG says its exclusions staff can answer questions about persons on the list. These are open questions for counsel and for the vendor, not answers.