Where to go from here: Adopting the OIG's plan
Now that the dust has settled on the HHS Office of the Inspector General's compliance program guidance for hospitals, released last Wednesday, experts are cautiously optimistic that the plan will help hospitals avoid audits and reduce their liability if an audit does occur.
"One of the things I like about it, and that everybody should like about it is the fact that it's very clear about what policies they expect hospitals to have," says F. Lisa Murtha, JD, senior manager and director of the control and compliance practice at Deloitte & Touche, Philadelphia and consulting editor of Compliance Hotline. "Specifically, they've outlined the issues that they're looking into like upcoding, unbund-ling, DRG creep, and all the rest. This is the first time that they've given that kind of specific guidance." (See related story on risk areas, page 3.)
Given that the OIG has acknowledged that not all hospitals have the resources to implement a full-blown, sophisticated compliance program right away, those with limited resources are faced now with the question of what to focus on first. Three areas are paramount.
#1 The most important thing is to have a plan in place capable of ensuring that all billings submitted to federal programs are appropriate, at least "to the maximum extent possible," says Larry Goldberg, JD, chief of the civil recoveries branch of the OIG.
To achieve that goal, start by developing written standards of conduct designed to give employees guidance about what the organization's expectations are, Murtha recommends. She notes that a number of organizations, including the American Hospital Association (312-422-3000) and the National Health Lawyer's Association (202-833-1100), sell standard code of conduct documents for a nominal fee (some cost less than $300). "That's a fairly inexpensive thing for a hospital organization to do, and can make a pretty strong impact."
Goldberg agrees: "It's absolutely essential, because if there are no written policies and procedures, people aren't going to know what the rules are or the appropriate course of action."
#2 The second essential element is to establish training and education programs capable of communicating the organization's policies to employees.
"If organizations are going to spend any dollars on compliance, they ought to spend the lion's share on training," Murtha says. "Training gives you the biggest bang for your buck because it educates your people to do things in a way that's consistent with the law and with the organization's own regulations." Murtha adds that standardized training materials can be purchased cheaply from a number of health care organizations.
#3 The third crucial element, Murtha says, is to implement a hotline that protects the anonymity of complainants. "You can always create a new line with the telephone company," she says. "That's easy. Then apply some human resources to man the hotline and investigate matters. That can be done by the internal audit department, if one exists, or by in-house counsel." The key, Murtha says, is that investigations should be done consistently, thoroughly, and immediately, and that appropriate remedies are applied. "Almost anybody can do this, but it has to be done," she says.
Goldberg says that for smaller hospitals that lack sufficient resources, it could be appropriate simply to post the OIG's own hotline number (800-HHS-TIPS). "That way the employee has a way to get to somebody to let them know about a particular problem," he says. "But certainly for larger hospitals, there should be some internal process in place."
The Washington, DC-based AHA is pleased that the guidance also clarifies the OIG's 60-day reporting requirement, which now states that hospitals should report violations within 60 days of conducting a reasonable inquiry into whether wrongdoing actually occurred. In addition, the AHA hails the plan for showing "an understanding that there's great diversity among hospitals, and that one size doesn't fit all," says Mary Greeley, JD, the AHA's Washington counsel. AHA stresses that the plan isn't mandatory and that hospitals will need time to adapt its recommendations to their own programs.
Greeley also is encouraged now that the OIG has clearly stated that having a compliance program in place that adheres to the agency's guidelines will serve as a mitigating factor in an investigation. "Our position was, if hospitals are going to do this and incur an additional expense for doing it, there should be a quid pro quo of some sort, a recognition that they will be viewed as acting in good faith," Greeley says.
Goldberg acknowledges that "with respect to any potential investigations by the OIG, the existence of an effective compliance program would have a mitigating impact on any potential sanctions that were imposed, whether it be civil monetary penalties or exclusions from Medicare, Medicaid, and other federal health care programs."
But simply having a compliance program in place doesn't let you completely off the hook, Goldberg cautions. "If you have a bunch of aggravating circumstances, such as a continuous pattern of misconduct, then having a compliance program in place is nice, but it won't necessarily mitigate away potential sanctions."
Even so, you can reduce your potential
liability from treble to double damages by reporting False Claims Act violations within 30 days of conducting a reasonable inquiry. "A lot of it boils down to how cooperative your organization is with the government," Murtha says. "Common sense will tell you, you're just going to get a much better deal from the government that way."
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