Compliance program could placate authorities
Good plan requires compliance chief
If a hospice finds itself the target of an investigation, one administrative element investigators look for is a compliance program, a set of written policies that spell out the company’s system for spotting incorrect claims and corrective procedures.
"One of the first things the U.S. Attorney’s office will ask is whether there is a compliance program in place," says David Queen, JD, a Baltimore-based attorney who handles fraud cases for home health and hospice providers. "If there is, the provider is in a position to argue that they were following regulations in good faith."
This is not to say that a compliance program will prevent investigators from conducting an aggressive examination of a hospice’s Medicare billing practices. It does show, however, that the hospice has policies that are intended to eliminate false claims.
In the eyes of the federal government, a compliance program has numerous benefits — not the least being the ability to identify weaknesses in internal systems and management.
Those who have effective compliance programs in place will have, in the opinion of federal officials, safeguards that will identify and prevent illegal or unethical behavior; a view of expected employee and contractor behavior relating to fraud and abuse; and a document that demonstrates to the government and public that the hospice is committed to honest provider and corporate conduct.
No compliance guides
To date, the Department of Health and Human Services’ Office of Inspector General (OIG) does not have a compliance program guideline for hospices. It is currently developing a guideline that will help hospices implement compliance programs of their own.
In March, OIG completed the comment period, which will be used to help develop the compliance program guideline. In the Jan. 13 Federal Register, OIG identified seven elements that have been discussed in the development of past compliance programs for other segments of health care, such as home health:
1. Written policies and procedures.
2. Designation of a compliance officer.
3. Development and implementation of effective training and education programs.
4. Development and maintenance of effective lines of communication.
5. Enforcement of standards through well-publicized disciplinary guidelines.
6. The use of audits and other evaluation techniques to monitor compliance.
7. The development of procedures to respond to detected offenses and initiate corrective action.
With those elements in mind, hospices can begin roughing out a compliance plan of their own. They can also look at already-established guidelines for their closely related colleagues in home health. In fact, the elements above are listed as the minimum elements of a compliance program for home health and other provider types.
Written policies and procedures should be developed under the direction and supervision of a compliance officer and compliance committee. At a minimum, these policies and procedures should be provided to all individuals who are affected by the particular policy at issue, including contractors and vendors.
Elements within policies and procedures should include, but are not limited to, standards of conduct; risk areas; claim development submission process; and physician certification.
The Arlington, VA-based National Hospice Organization (NHO) has asked the OIG to provide specific language and reference to statutory requirements in its guidelines to aid hospice providers develop written eligibility policies.
"While we expect that you would include the issue of eligibility, we would urge OIG to describe the requirements with specific reference to statutory and regulatory standard regarding terminal illness certification," NHO president Karen A. Davie wrote in response to OIG’s request for comments.
The compliance officer serves as the focal point for compliance activities. This may be an employee’s sole responsibility or it may be added to the job description of an existing position. According to the OIG, designating a compliance officer with the appropriate authority is critical to the success of the compliance program.
Compliance officer background
The compliance officer should be a high-level official in the organization with direct access to the president and chief executive officer, its governing body, senior management, and legal counsel. The compliance officer should have the authority to review all documents and other information that relate to compliance activities, such as billing records, patient charts, and arrangements with contractors.
Queen says providers often make the mistake of placing people with accounting backgrounds as the head of compliance programs. While accounting skills are valuable, they represent a small portion of overall job responsibilities. Instead, Queen says compliance chiefs should have a human relations background with management skills.
"You need someone who is able to interact with both employees and upper management," Queen says.
Because many hospices are small operations, the prospect of creating one full-time equivalent position dedicated solely to monitoring its compliance program is dim. But the OIG will allow part-time compliance chiefs, Queen says.
Whether full-time or part-time, the primary responsibilities of the compliance officer should:
• Monitor the implementation of the compliance program.
• Certify that employees have received, read, and understand the standards of conduct.
• Develop the education and training programs to ensure staff is knowledgeable of not only organizational policies, but state and federal standards as well.
Investigate and act on matters related to compliance, such as suspected violations.
A compliance committee should be established to advise the compliance officer and assist in the implementation of the compliance program. The committee should be made up of employees in various positions within the hospice.
Training sessions spearheaded by the compliance officer must highlight the hospice’s compliance program, summarizing fraud and abuse laws, federal health care program requirements, claim development and submission processes, and patient rights. Training should not be limited to just hospice employees, but should include physicians contractors and other agents.
Based on the home health compliance program guidelines, the OIG is likely to recommend that hospices require a minimum number of educational hours per year as a condition of employment. It may also recommend that an employee’s failure to attend training should lead to disciplinary action, including termination.
Keep communication open
There should be an open line of communication between employees and the compliance officer. The OIG may suggest that written confidentiality and non-retaliation policies be developed to encourage employees to report potential fraud. The process of communication needs to be clear among employees to prevent confusion when reporting potential fraud. These lines of communication can take several forms, such as a hotline, e-mail, a written memo, and a suggestion box, to name a few.
An effective compliance program will include clear disciplinary guidelines for officers, managers, and employees who violate policies and standards of conduct. The OIG says compliance programs for all health care settings need to set forth the degrees of disciplinary action and ensure that workers are aware of the consequences of illegal or unethical behavior.
There should be an ongoing evaluation process to ensure compliance. OIG suggests performing regular audits by internal or external examiners who have an expertise in state and federal health care program requirements. According to past guidelines, OIG has recommended that the minimum scope of audits include laws governing kickback arrangements, physician self-referral, claim development and submission, reimbursement, cost reporting, and marketing.
There may be more
Procedures for investigating suspected abuse should take into account the possibility that a single incident may be indicative of a systematic problem. Procedures may include bringing in outside counsel, auditors, or other health care experts to assist in the investigation. The compliance officer is also responsible for reporting misconduct to the proper authorities along with evidence uncovered during the internal investigation. The reporting of misconduct will be considered a mitigating factor in OIG’s determination of administrative sanctions.
The OIG in past guidelines has recommended that providers report the existence of misconduct within 60 days. The NHO is concerned the requirement is "too prescriptive for a voluntary program."
Davie also expressed concern that the stressful atmosphere created by impending death might cause patients and families to make unwarranted accusations and that investigators would interpret the emotional response as credible evidence of wrongdoing. The NHO is asking OIG to take into account the unique atmosphere in hospices when directing providers to report suspicions of abuse.
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