OIG gives physician groups a reprieve by modifying final compliance plan
Guidance builds in more flexibility for practices
Officially, they were polite and "pleased" by the news, but off the record, executives at physician-related societies and organizations let out a collective whoop of satisfaction in late September after the Office of Inspector General (OIG) released its final compliance guidance for solo practitioners and small group practices.
They were elated because the changes incorporated by the OIG contained most of the alterations physician lobbying groups had been asking for.
In an understated official statement, the Medical Group Management Association (MGMA) of Englewood, CO, for instance, said it was "pleased that the final compliance guidance reflects several suggestions that [were] made in formal comments, as well as during . . . discussions with the OIG regarding the draft guidance."
As with previous guides, the OIG outlines the seven standard components of a full-scale compliance program. While the agency underscored that that guidance, like its guidelines for other providers, is voluntary, the fraud police backed off its "suggestion" in earlier provider compliance guidelines that all seven of those components be implemented by physician practices.
Bottom line: Letting physicians off the hook when it comes to adhering to all seven points gives practices more flexibility — and less built-in costs when implementing and managing their internal compliance programs.
"The intent of the guidance is to provide a road map to develop a voluntary compliance program that best fits the needs of that individual practice," said Inspector General June Gibbs Brown.
"The guidance itself provides great flexibility as to how a physician practice could implement compliance efforts in a manner that fits with the practice’s existing operations and resources, " Brown continued. "Our goal in issuing this final guidance was to show physician practices that compliance can become a part of the practice culture without the practice having to expend substantial monetary or time resources."
In another key point providers had been seeking, the OIG included a statement in the materials accompanying the guidance that "physicians are not subject to civil, administrative, or criminal penalties for innocent errors, or even negligence."
It stated that "the government’s primary enforcement tool, the civil False Claims Act, covers only offenses that are committed with actual knowledge of the falsity of the claim, reckless disregard or deliberate ignorance of the truth, or falsity of a claim. The False Claims Act does not cover mistakes, errors, or negligence."
As Brown pointed out, "The OIG is very mindful of the difference between innocent errors [erroneous claims] and reckless or intentional conduct [fraudulent claims]."
In a major victory for physicians, unlike other provider guidelines already issued by the OIG, the final physician guidance does not suggest that physician practices implement all seven standard components of a full-scale compliance program.
Noting that it would be great if a practice did build a solid compliance program based on those seven components, the OIG also acknowledged that "full implementation of all components may not be feasible for smaller physician practices."
A step-by-step approach
Instead of having to adhere to the so-called seven pillars of compliance, the guidance emphasizes what it calls "a step-by-step approach" for smaller practices to follow in developing and implementing a voluntary compliance program.
The first step the OIG suggests is for physician practices to identify risk areas which, based their history with billing problems and other compliance issues, might benefit from closer scrutiny and corrective/educational measures.
The next steps are to:
1. conduct internal monitoring and auditing through the periodic audits;
2. implement compliance and practice standards through the development of written standards and procedures;
3. designate a compliance officer or contact(s) to monitor compliance efforts and enforce practice standards;
4. conduct appropriate training and education on practice standards and procedures;
5. respond appropriately to detected violations through the investigation of allegations, and the disclosure of incidents to appropriate government entities;
6. develop open lines of communication — such as community bulletin boards and discussions at staff meetings — regarding erroneous or fraudulent conduct issues, as well as compliance issues;
7. enforce disciplinary standards through well-publicized guidelines.
Risky business
The final guidance also identifies four specific areas it feels present higher than normal risk when it comes to compliance for physician practices:
• proper coding and billing;
• ensuring that services are reasonable and necessary;
• proper documentation;
• avoiding improper inducements, kickbacks, and self-referrals.
While it might sound like a broken record, those are also the areas you can expect government auditors and inspectors to take an extra hard look at when reviewing your claims.
To increase flexibility and lower costs, the OIG also is encouraging physician practices to participate in the compliance programs of other providers, such as hospitals or venues where they practice.
Larger practices are being asked to use both this guidance and previously-issued guidelines, like the Third-Party Medical Billing Company Compliance Program Guidance or the Clinical Laboratory Compliance Program Guidance, to create a compliance program that meets their special needs.
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