Compliance program is a necessity, not a luxury
By Elizabeth Hogue, JD
Health Care Attorney
Elizabeth Hogue Chartered
Burtonsville, MD
Home health agency managers may have heard or read about the need for an internal Medicare/Medicaid fraud and abuse compliance program in their organizations.
The Office of Inspector General of the Department of Health and Human Services recently issued guidelines for home health agency compliance programs. The document, titled OIG's Compliance Program Guidance for Home Health Agencies, was posted Aug. 4, on the agency's Web site: http://www.hhs.gov/progorg/oig.
Last month, the Health Care Financing Administration (HCFA) in Baltimore disclosed that compliance programs are likely going to be made part of the forthcoming revised Medicare Conditions of Participation, due out later this year. In short, it is urgent that home care agencies develop and implement compliance programs.
What don't you understand?
However, despite a wealth of information available on compliance programs, many providers remain uncertain about their value. Here are some of the more frequently asked questions and misconceptions about compliance programs.
Q: Why should every agency have a Medicare/ Medicaid fraud and abuse compliance program?
A: The Federal Sentencing Guidelines make it clear that establishment and implementation of compliance programs is considered to be a mitigating factor in a case against an agency. That is, if accusations of criminal conduct are made, the punishment received may be substantially less severe as a result of a properly implemented compliance plan.
Providers with compliance plans are more likely to avoid actual, though unintentional acts of fraud and abuse since plans routinely establish an obligation on the part of each employee to prevent fraud and abuse and provide for training of all employees on such issues.
Compliance plans should included mechanisms that help you prevent qui tam, or so-called "whistle-blower" lawsuits by individuals who believe they've identified instances of fraud and abuse. Because "whistle-blowers" receive a share of monies recovered as a result of their efforts, there are significant incentives for individuals to bring these legal actions. Some "whistle-blowers" have received millions of dollars.
Q: We have read that providers must conduct an internal audit before implementing compliance plans. However, audits can take many months to complete and can be very expensive, can't they?
A: While beginning the compliance process with an extensive internal audit is certainly one useful way to proceed, it is not the only viable way to work toward compliance. It is equally valid to begin with a compliance plan that is customized for the organization and includes training for all employees about fraud and abuse. Then all staff can subsequently participate in internal audit activities.
Q: We have all sorts of policies and procedures in our agency. Why do we need something else called a compliance plan?
A: Compliance plans are specific types of documents that are brand new to many providers. Plans routinely include policies and procedures not included in anything developed by providers. In addition, providers may not gain the benefits of the Federal Sentencing Guidelines described above if there is no formal compliance plan document.
Q: We just spent a lot of money to become accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) in Oakbrook Terrace, IL. Doesn't that certification mean we are in compliance?
A: Organizations may be JCAHO accredited but fail to meet applicable standards for appropriate compliance activities. A compliance program appropriately addresses potential fraud and abuse issues and includes mechanisms for compliance, such as a specific process for identification and correction of potential fraud problems that are not addressed during the JCAHO certification process.
Q: Are compliance plans required?
A: Not currently. But it seems likely that compliance plans will be required in the near future. According to recent reports, HCFA says that home health agencies desiring to be Medicare providers will be required to have a fraud and abuse compliance program. Apparently, the mandatory requirement will be made part of the home health agency Medicare Conditions of Participation later this year. Compliance plans are also "good business" in terms of prevention and correction of fraud and abuse internally before government enforcers or whistle-blowers get involved.
Now is the time for providers to recognize the need for compliance programs and to act.
Editor's note: for a copy of How to Develop a Fraud and Abuse Compliance Plan, send a check for $55 payable to Elizabeth E. Hogue, 15118 Liberty Grove Drive, Burtonsville, MD 20866. For more information about compliance programs, contact Hogue at (301) 421-0143.
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