Employees with baggage
Q. My company has the opportunity to hire a really dynamic employee, but she may have been in trouble with Medicare in the past. Can we hire her if her job does not involve patient care or billing Medicare?
A. No part of an excluded provider's salary, benefits, or other forms of remuneration can be derived from a federal source. A provider who employs an excluded provider cannot submit claims for payment derived from federal funds for work performed by the excluded individual, including "administrative and management" functions. The OIG has indicated that they will give "administrative and management" functions an extremely broad interpretation, including working "in any other capacity." This is a very vague definition, but the OIG seems to like it that way. It is best to err on the side of caution.
If you do not bill Medicare/Medicaid for any goods or services, you may employ an excluded provider. You will need to be able to prove that all of the excluded provider's compensation is derived from private funds or commercial payors and that the work does not involve federal beneficiaries. Be careful though, many commercial payors require that their providers certify that they do not employ excluded providers.
It is best to check to see if any potential hire is an excluded provider. You need to check the excluded provider list before you make an offer of employment, and before you enter into any contractual relationships. You should also perform the search at each annual employee review, and before each contract renewal. You should also check for felony convictions, even if they are outside of the healthcare context. The list of excluded individals/entities can be accessed at www.oig.hhs.gov/fraud/exclusions.html.
Richard Tuten is an attorney with the Health Law Center, firstname.lastname@example.org.