Just Because It Isn’t Raining Doesn’t Mean You Shouldn’t Have An UmbrellaBy Seasons | April 21, 2021
Compliance isn’t Reactive!
As savvy healthcare professionals know, effective compliance isn’t somebody else’s problem. Knowing the basic terminology, areas of focus, and where these federal rules apply is a solid start. But having a general understanding is just the beginning.
Compliance Programs are Required, and They Minimize Risk.
The Affordable Care Act (ACA) requires healthcare providers who participate in Medicare, Medicaid, or CHIP programs to have an established compliance program. However, even if these weren’t requirements of the ACA, they would still have tangible benefits for a provider:
- Compliance programs can mitigate fines and penalties: The US Sentencing Commission Guidelines Manual specifically identifies “the existence of an effective compliance and ethics program” as one of two factors that could mitigate the punishment of an organization. For the healthcare industry, this means that a compliance program could reduce fines for violations of fraud, waste, and abuse laws like the False Claims Act – provided that the compliance program is actually robust and effective and not just a document pulled out of the drawer for review a few times a decade.
- Self-reporting can also reduce penalties: Compliance programs are intended to identify potential fraud, waste, and abuse. When those issues are identified, providers have an obligation to self-report the issue to the government and repay any amounts to which the provider was not entitled. This is not only mandated by law, but also helps mitigate any potential fines/punishment associated with the conduct that was fraudulent, wasteful, or abusive of the federal healthcare programs. Essentially, you get credit for having the integrity to come forward and admit a mistake.
- Qui tam? Not quite: Qui tam cases (sometimes referred to as ‘whistleblower cases’) are often brought by current or former employees who may believe their organization is not taking compliance seriously and has committed some form of fraud, waste, or abuse. When interviewed, qui tam relators/whistleblowers commonly indicate they may not have brought their lawsuit if their organization had promptly and thoroughly investigated their concern, remediated any issues found, prohibited any retaliation, and communicated those steps to the whistleblower to the extent possible. An effective compliance plan mandates these investigations and subsequent steps, which can reduce the incidence of qui tam cases.
5 Best Practices For Your Program
There are no shortage of tools to help you understand what your compliance program needs to get going. The important thing to remember is that the most impactful compliance programs are ongoing, living programs. They require oversight, monitoring, and should be woven into the cadence of your practice. Compliance isn’t a binder that gets used when a surveyor walks in, it’s a way of running your business every day.
- Establish a program that meets all seven elements of an effective program as defined by the USSCG (see page 505)
- Ensure your board and executives understand their responsibilities with regard to the compliance program, and what oversight they should be providing.
- Stay up-to-date on The Department of Health and Human Services Office of the Inspector General’s (HHS OIG) compliance resources, paying close attention to guidelines specific to your area of practice (SNF, hospice, hospital, pharma manufacturers, etc.)
- Corporate Integrity Agreements (CIA’s) can help you read the tea leaves for what the government expects. While not the most riveting of page-turners, these agreements between the government and providers lay out what the provider must do to ensure its compliance program effectively prevents or detects future violations. CIA’s are for programs who have violated or have been accused of violating a healthcare integrity law.
- Stay abreast of OIG special fraud alerts. These identify areas of particular concern to the OIG. The OIG has helpful newsletters and aggregators you can sign up to receive right to your inbox.
It doesn’t rain every single day, but that doesn’t mean we will never get wet. Knowing that your program might be compliant today doesn’t necessarily indicate that ongoing vigilance isn’t needed. Developing regular accepted methods of ensuring you’re being a wise steward of federal healthcare dollars with every patient is key to the viability of your critical work serving patients.
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