Exclusion List/License Checks
Case
A certified nursing assistant had been working at the same facility for several decades. Ten years ago, the New Jersey Department of Health told the nursing assistant her certification was revoked. According to the department, her certification was taken away because of an allegation of resident abuse.
In response, the nursing assistant hired an attorney and went to state court. Fortunately, she was successful in defending herself and convinced the Department of Health to reinstate her certification.
Fast-forward to present-day and a problem remains for the nursing assistant. CMS has told the nursing assistant grave news: her name is on the Office of Inspector General’s exclusion list. Her lawyer had failed to tell the federal government his client’s license was reinstated. Thus, her name on was left on the federal exclusion list.
At this point, the nursing assistant is subject various legal consequences. Under the False Claims Act, she could be charged with fraudulent billing of Medicare and Medicaid services. Unlicensed nurses are also subject to assault and battery charges when making contact with their residents.
Fortunately for the nurse, she was able to meet with the board who oversees the exclusion list. The board inquired as to whether she received the exclusionary list letter detailing that her license was revoked. She said no, citing that her mail would often be stolen. Overall, however, the board was impressed with the nursing assistant’s demonstrated commitment and service to her patients for many decades. As such, the board reinstated her license.
With her license reinstated, our nursing assistant was able to avoid potential fraud as well as assault and battery charges. Her employer faced potentially crippling fines by employing someone listed on the OIG exclusion list. Though legal consequences were avoided in this case, employers must take very precaution necessary to ensure their employees are properly licensed and off the exclusionary list.
Best Practices
Employers should be keenly aware of the status of all employee licenses. To this end, the List of Excluded Individuals/Entities (LEIE) should be consistently checked before hires are made and during an employee’s tenure. However, checks of the LEIE alone will not protect an employer from false claims suits.
Say you check the LEIE before a hire is made. You verify the employee is not on the LEIE. However, a couple days after the hire, the same employee is placed on the LEIE for a past fraud conviction involving their previous employer. A month later, the employer discovers the employee has been placed on the LEIE. The employee has treated over 100 patients by this time while charging $100,000 from Medicare/Medicaid. Despite the monthly checks of the LEIE, a false claim has occurred regardless.
Care facilities should have clear and concise policies to certify the credentials of applicants. Not only should the LEIE be checked, but clear evidence of certification should be presented before hiring an applicant. Registered nurses, licensed professional nurses, and nurse aides should present a valid license issued by the state before their first day of employment. Not everyone can be as lucky as our nursing assistant friend.
Sources:
https://oig.hhs.gov/exclusions/effects_of_exclusion.asp
https://oig.hhs.gov/exclusions/background.asp
