Requirement to Identify Individuals or Entities Excluded from Participation in Federal Health Care Programs
In accordance with Section 1128 of the Social Security Act (42 U.S.C. Section 1320a-7), the United States Health and Human Services Office of Inspector General (HHS-OIG) excludes individuals and entities who have engaged in certain activities or have been convicted of certain crimes from participation in any federal health care program (i.e., Medicare, Medicaid and the State Children’s Health Insurance Program).
The Texas Health and Human Services Commission Office of Inspector General (HHSC-OIG) similarly excludes such individuals and entities from participation in federal and state health care programs in accordance with Title 1, Texas Administrative Code, Chapter 371, relating to Medicaid and Other Health and Human Services Fraud and Abuse Program Integrity.
HHS-OIG and HHSC-OIG maintain separate lists of excluded individuals and entities (LEIEs).
Federal regulations at 42 Code of Federal Regulations (CFR) Section 1001.1901(b) generally prohibit states from paying for any item or service furnished, ordered or prescribed by an excluded individual or entity. As explained in State Medicaid Director Letter #09-001 from the Centers for Medicare & Medicaid Services (CMS), dated January 16, 2009, this payment prohibition applies to any item or service reimbursable under a Medicaid program that is furnished by an excluded individual or entity, including:
- all methods of reimbursement, whether payment results from itemized claims, cost reports, fee schedules or a prospective payment system;
- payment for administrative and management services not directly related to patient care, but that are a necessary component of providing items and services to Medicaid recipients, when those payments are reported on a cost report or are otherwise payable by the Medicaid program; and
- payment to cover an excluded individual’s salary, expenses or fringe benefits, regardless of whether they provide direct patient care, when those payments are reported on a cost report or are otherwise payable by the Medicaid program.
In addition, 42 CFR Section 1003.102(a)(2), allows the HHS-OIG to impose a penalty and assessment against a Medicaid provider that presents a claim for an item or service that the provider knew, or should have known, was furnished by an excluded individual who is employed by or contracting with the provider.
To ensure compliance with applicable federal and state requirements, a provider must develop and implement written policies and procedures that require the provider to:
- review or contract with an entity to perform review of the LEIEs at the following websites before hiring or contracting with an individual or entity at least once a month while the provider employs or contracts with the individual or entity, regardless of whether the provider has a written agreement with the individual or entity, to determine if the individual has been excluded:
- immediately report to HHSC-OIG the identity of an excluded individual or entity that the provider employed or contracted with and any amount paid to that individual or entity, by accessing the HHSC-OIG self-disclosure protocol. (Directions for self-reporting are found in Section III of the protocol);
- document the following information to demonstrate compliance with the requirements to review the LEIE and report an excluded individual or entity:
- the date of an LEIE review;
- printed name and signature of the person conducting the review;
- first and last name and date of birth of the individual or entity that was subject of the review;
- whether the individual or entity was excluded; and
- date an excluded individual was reported to HHSC-OIG;
- maintain the documentation that demonstrates compliance with the reviewing and reporting requirements, and copies of reports submitted to HHSC-OIG, for six years after the end of the federal fiscal year in which the documentation or report was created;
- refrain from employing or contracting with an excluded individual or entity to provide any items or services that may be paid for directly or indirectly through the provider’s contract with the Texas Health and Human Services Commission (HHSC); and
- refrain from paying for any item or service furnished, ordered or prescribed by an excluded individual or entity.
HHSC encourages providers to consult with their legal representatives, corporate offices or member associations for guidance in developing their written policies and procedures. If needed, additional guidance may be found at:
- CMS Letter to State Medicaid Directors dated January 16, 2009, SMDL #09-001;
- HHS-OIG Exclusion; and
- HHS-OIG Special Advisory Bulletin.
Retired Information Letters
This appendix supersedes any previous Information Letter (IL) or similar guidance published by HHSC. Providers should remove the retired ILs from their records to ensure they reference only the most current information.
If there are questions about the appendix or any of the ILs that were retired, send an email to firstname.lastname@example.org.