Exclusion efforts

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.”

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