I don’t like the General Services Administration (GSA) debarment list. It provides mostly useless information with very little return on time and effort. In my opinion, health care entities screening against it is a waste of tens of millions of health care dollars that could be better spent on providing patient care. My reasons are as follows:
- The GSA debarment list was never intended to be used by health care providers and plans. The Excluded Parties List System (EPLS) is now part of System for Award Management (SAM) and is designed solely for use by Federal government agencies procurement process. Just go to their web-site and see that. With rare exceptions health care providers and plans are not Federal agencies or part of any Federal procurement process. GSA debarment list is designed to prevent Federal government agencies soliciting offers from, award contracts, grants, or financial or non-financial assistance and benefits to those on the list.
- GSA sanction screening has never been user friendly. It also generates many “false hits” that result in considerable work to make determination as to whether the entity in question is identifiable to the one on which the hospital is checking.
- GSA does not offer any useful assistance in trying to verify a potential “hit.” Unlike the OIG LEIE that has verification tools available to assist with possible hits, the EPLS often lacks solid identifiable information to permit easy verification that the party listed. This problem is further complicated by the large number of entities with similar sounding names.
- The GSA is complicating an already difficult sanction screening process. The new operational bugs that recently surfaced with the GSA SAM database included some security breaches for users, along with data discrepancies. These new problems resulted from GSA consolidating a number the federal procurement processes related to government contracting. Their new system consolidates several databases into one online system. They include the Central Contractor Registration/Federal Agency Registration (CCR/FedReg), Online Representations and Certifications Application (ORCA), and the EPLS. Future phases of SAM will include additional databases for use during government procurement processes.
- There is no provision or guidance for health care providers or plans to consider administrative debarments discretionary. GSA lists two types of debarments, mandatory and administrative. Federal agencies have the discretion of contracting with those on administrative debarment. There is no guidance by CMS or any other federal agency as to whether that discretion applies to health care entities.
- The overwhelming majority of entities on the EPLS are not relevant to health care entities. It makes some sense to conduct sanction screening health care related contractors or vendors, but most hospitals have thousands of other types providing everything imaginable for running any business, such as printing paper, toilet paper, computer supplies, delivery services, ground keeping services, trash hauling contractors, accounting and legal services, on and on. All one has to do is to look at the accounts payable and see that the list can be never ending. Yet, there is no guidance as to where to draw the line for sanction screening.
- There are no specific CMS regulations requiring providers to screen against the GSA debarment list. However, the Medicare Enrollment Application for Institutional Providers requires applicant hospitals to have a compliance plan that states that the hospital checks all managing employees against the exclusion/debarment lists of both the OIG and GSA. Also, under 42 CFR § 424.516(a)(3)(ii) providers may not contract with any individuals or entities that are debarred by the GSA as a condition to maintaining active enrollment status. CMS also requires managed care plans to screen against the GSA EPLS prior to the hiring or contracting of any new employee, temporary employee, volunteer, consultant, governing body member, or First Tier, Downstream or Related Entity (FDR), and on a monthly basis thereafter. Additionally, debarred providers who apply for Medicare shall be denied and debarred providers enrolled with Medicare shall have their Medicare billing privileges revoked.
- Although “hits” as result of sanction screening against the EPLS are not uncommon, legitimate ones are very uncommon.
- The cost versus benefit equation of sanction screening against the EPLS is poor. It particularly makes little sense to run IBM, Staples, a courier service, computer repair services, etc. through the EPLS.
- The OIG has added their LEIE data to the SAM creating a redundancy. As such, the only likely confirmed hits would be on these parties. They would have already surfaced from the screening against the LEIE. However, there are lag times from when an OIG sanction appears on the SAM and when it is removed. What this means is that it is possible that exclusion may have been rescinded by the OIG but GSA may still carry it on their debarment list. This lag time can be considerable.
- Unlike screening against the LEIE, OIG only suggests the GSA data as a useful resource. They do not see failure to screen as creating a liability or potential fraud. CMS is alone in believing a health care organization should terminate a contract with the debarred party, regardless of the vagueness of what that party might be or the nature of the debarments.
- It is not clear how an entity would deal with a finding of a debarred party. It is not either an OIG or DOJ issue and they would not be involved. I would question the legal basis or reasonableness for cancelling valid contract just because CMS thinks it is should be done.
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In a future blog article, I will offer some suggestions to mitigate the GSA sanction screening burdens.