Don’t rush your compliance plan
Battle against fraud requires attention to details
By Fay A. Rozovsky, JD, MPH
President, The Rozovsky Group Inc.
Richmond, VA
After many delays, the Office of Inspector General (OIG) of the federal Department of Health and Human Services is promising to release model compliance plan (CP) guidelines for hospitals any day now. These are the second set in what is becoming known as the compliance guidelines trilogy. The third set will focus on managed care.
In some ways, the compliance plan will be anticlimactic. After reviewing the guidelines for clinical laboratories released in March of last year, many hospitals jumped on the compliance bandwagon without waiting for federal mandates. They felt it was better to forge ahead rather than wait for what might or might not be subtle changes in the hospital compliance plan. Informing this perspective was the sobering admonition that the OIG has "zero tolerance" for fraud and abuse.
Numerous experts nationwide are rushing to market ideas and programs for hospital-based CPs. To a large extent, those systems focus on billing and accounting practices, because those areas constitute much of the OIG’s intention to avert allegations of fraud and abuse. Often missing, however, are practical measures for a successful launch. Those missing pieces could prove pivotal in accomplishing the eleven steps found in the model clinical laboratory compliance plan, and will likely apply to the hospital-based compliance plan as well.
Compliance goes beyond billing issues
The following five major factors facilitate development of an effective approach to CPs for hospitals:
• Broadening the plan beyond fraud and abuse is essential.
Fraud and abuse are the tip of the iceberg. While their features are well understood, beneath the surface lurk dangers that can give rise to serious problems, among which are transactional and quality of care factors and regulatory considerations.
An expansive program that goes well beyond fraud and abuse legislation and regulations is warranted. There are two reasons for this approach:
1. The common denominator leading to fraud and abuse allegations is clinical care. Upcoding, downcoding, overutilization, underutilization, and the non-provision of services are all linked to care, and errors and omissions in these areas give rise to allegations of fraud and abuse.
2. A federal Fraud and Abuse Control Program was established as a result of the Health Insurance Portability and Accountability Act. The program is designed to enable increased collaboration among 14 federal regulatory agencies and their state counterparts. Information about a clinical issue, for example, such as an alleged Emergency Medical Treatment and Active Labor Act (EMTALA) violation, may be shared among several federal agencies. If characterized as a fraud and abuse issue, what was seemingly an EMTALA problem may be grow into something far bigger and more sinister.
By taking a broader view that compliance goes well beyond matters of billing and accounting the program may capture clinical issues that could trigger a variety of regulatory investigations, probes, and inquiries. Compliance functions best as part of a larger perspective penetrating throughout the hospital organization, right down to everyone whose responsibility it is to facilitate quality care.
• Encompass everyone in the CP.
It is sometimes argued that because the model CP focuses on employees, there is no need to include others in its broad sweep. However, this is short-sighted. Contemporary health care is awash with outsourcing, contracting, subcontracting, and supplemental staffing. Omitting the myriad of contractors and volunteers from the CP creates needless risk exposure. Don’t assume such individuals know the content of the hospital’s plan.
Make inclusion your goal
Consistency is essential to assure compliance throughout the hospital organization. As such, inclusion rather than exclusion should be your goal. Put that goal into operation through thoughtfully drafted contracts that mandate adherence to your CP. At the same time, contracts should provide for quality monitoring to ensure compliance is being achieved.
• Make sure education is a continuing process.
The model compliance guidelines for clinical laboratories emphasize the importance of educating staff about the CP. Directives on adherence to the plan, corporate values, ethical principles, and the mission of the organization should be included in your educational materials.
Some practical considerations stand out:
Staff turnover rates are typically high. Offer a compliance training program frequently.
Don’t furnish too much information in one session. Attempting to introduce corporate compliance in your new hire orientation may result in the message being lost in the midst of information overload.
Reinforce the message as part of inservice education. Few staffers may attend a voluntary program, resulting in the message reaching very few.
Make certain contractors and their employees receive the same level of training.
Take these simple steps to guard against ineffectual education:
Make training sessions mandatory.
Divide the CP into segments for new hires, and do the same for new board members.
Create a video library with a self-test for those who cannot take part in live sessions.
Use interactive computer programs for inservice education. Role playing, case studies, and thematic programs such as a Compliance Week can all be used as a platform for achieving necessary education.
The key is that education in compliance should be viewed as an ongoing, continuous process.
• Assess corporate compliance competency.
Education is useless without measuring whether participants understand how to fulfill the CP. Just as hospitals utilize clinical competency testing for provision of patient services, the same approach can be used with respect to compliance. Case studies and multiple-choice questions can be used.
If a large number of personnel misunderstand how to conduct themselves within the scope of the CP, that may be a risk indicator about a deficiency in training. This should at least warrant careful review of your educational programs. If it is an isolated problem, it may simply necessitate additional training and competency evaluations for those involved. Evaluation is essential, however, to make certain that staff and contractors alike understand how to apply the CP.
•Address the confidentiality risk exposures of CPs.
The model proposed for clinical laboratories places great emphasis on mechanisms for employees to report known or suspected noncompliance. Hot lines are suggested for anonymous reporting.
Data considered peer review-protected or quality improvement-privileged may not enjoy similar protection in a fraud or abuse investigation. Complaints, concerns, or suggestions of impropriety involving fraud and abuse in billing practices that arise in certain settings may not be deemed confidential.
Examine every step of investigation
Plan carefully how you will maintain the confidentiality of information received on a hotline or by anonymous tips, and extend that planning to the investigatory stage, during which the compliance officer (CO) and others are trying to gather salient facts. If outside consultants are used for this purpose and they have access to the confidential data, consider carefully how they are brought into the process. The same is true for the documentation and the paper trail that substantiate the investigation.
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