Health Care Providers Should Screen Unpaid Volunteers

One of the most often asked questions is whether it is necessary to sanction screen unpaid volunteers, in that they are not included in claims submitted for payment.  My answer is that it is a best practice to do so, whether or not, they are directly involved in patient care, even though they may not be included in a claim submitted to a federally financed health care program (i.e. Medicare/Medicaid).

There are those that argue that by definition, anyone excluded is prohibited from any federal health care program payment for any item or service furnished.  The Department of Health and Human Services Office of Inspector General (OIG) goes on to state that any party providing an item or services that is directly or indirectly paid by a federal health care program should be screened against the List of Excluded Individuals and Entities (LEIE).  Most cases of sanctioned individuals being engaged and used by health care providers involve a single excluded party with the average penalty of around $300,000.  It is normally based upon the individual’s compensation or amounts where they were included in claims.  The penalties for violation has vary depending on a number of factors, including whether the case was voluntarily disclosed, length of time the person was participating in the program, and amount of claims that included the person.

Inasmuch as a volunteer does not fall directly under that definition, many believe they need not be sanction screened.  The argument goes that inasmuch as volunteers are not included in such requests for payment, it is not necessary to include them in sanction screening.  In their recent Special Advisory Bulletin, the OIG sought to clarify sanction screening against the List of Excluded Individuals and Entities (LEIE) in terms of scope and frequency.  The purpose of screening is to determine if they are excluded from participation in federal health care programs.  The OIG noted that sanction screening requirements apply even if the excluded person changes from one health care profession to another while excluded, regardless of whether the person is an employee, a contractor, or a volunteer or has any other relationship with the provider.  Additionally, they stated that prohibitions under exclusion go beyond direct patient care and emphasized that excluded persons are prohibited from furnishing administrative and management services payable by federal health care programs.  Such services include serving as an executive or in a leadership role (e.g., CEO, CFO, general counsel, physician practice office manager, etc.) for a provider that furnishes items and services payable by federal health care programs.  OIG also explains that the scope of prohibited administrative and management services extends to health information technology service support, strategic planning, billing and accounting, staff training, and human resources, unless any of these roles are wholly unrelated to federal health care programs.

Certainly, the OIG is addressing those individuals volunteering in any capacity directly related to patient care.  One of the points they were making is that individuals who worked in health care in one capacity, such as a licensed care giver, have a tendency to continue working in the same sector but in a different capacity.  It has been my personal opinion going back to my days as the Inspector General that it is best practice to screen volunteers, even if they are not paid or included in any claims or costs submitted for payment by Medicare and Medicaid.

Sanction screening should take place, regardless of whether a volunteer’s duties and responsibilities extend directly or indirectly to patient care.  Depending on the nature of the infractions that gave rise to the sanction, an excluded individual’s continued involvement directly or indirectly in providing care may represent a patient or program threat.  Furthermore, if for any reason an incident occurs involving such a person and it can be shown that the individual was sanctioned for similar behavior in the past, regardless of what capacity; then there may be cause of action for negligent hiring and damages for that negligence.  There also is the potential for the volunteer with a history for damaging the reputation of the entity as result of media coverage of an unwanted event.  With all this noted, in my opinion there is only one course for organizations that have volunteers, screen them against the LEIE.

For all the reasons noted here, the best practice is to screen everyone engaged by the organization, paid or not.  This includes volunteers and board members.

About the Author

Richard P. Kusserow established Strategic Management Services, LLC, after retiring from being the DHHS Inspector General, and has assisted over 3,000 health care organizations and entities in developing, implementing and assessing compliance programs.