The Office of the Inspector General, (“OIG”) was established by the United States Department of Health and Human Services to identify and eliminate fraud, waste, and abuse in the Medicare program. In furtherance of their objective, the OIG has been granted authority to exclude certain individuals or entities from participation, who have engaged in fraud or abuse and who impose civil money penalties for misconduct related to the health care programs. The OIG has provided a set of statutes that home health care agencies are obligated to follow with respects to the employee hiring process.

Individuals or entities that have been mandated to be excluded from such programs have been convicted of program related crimes, patient abuse, felony relating to health care fraud or felonies relating to controlled substances. In addition, certain individuals may, but are not required to be excluded from the program for their commission of several other various violations, licenses, revocations, or suspensions. Nevertheless, whether such individual fits within the mandatory exclusion or permissive exclusion, if they have been excluded, then submitting a claim with respect to such individual would be a violation of the statute.

In order to determine whether an individual or entity is excluded, the OIG has established a search on their website that may be checked to determine eligibility. Employing an excluded individual would potentially subject your company to a civil money penalty. However, in order for such penalty to be accessible, the OIG would have to demonstrate that the home health care agency “knew or should have known” the individual was excluded from participation. It is the obligation of the home health care agency to make inquiry of their potential employee’s eligibility as would be reasonable and prudent under the circumstances. If an agency learns of an excluded individual or entity in participation, the employment relationship with the individual or entity should be immediately terminated.

The OIG has become much more active recently as the competition in the Chicagoland area has intensified within the home health care industry. Accordingly, home health care agencies should be careful to insure that they are acting within compliance of all applicable regulations. The Exclusion Program is easy to follow and therefore, it is critical that each agency verify that they are in compliance.