Transcript Mandatory Compliance Plans: Are You Ready?

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Mandatory Compliance Plans:
Are You Ready?
2011 Medical Practice Strategies Conference
Montgomery County Medical Society
Bill Mathias
Kristin Carter
Ober | Kaler
Ober | Kaler
410-347-7667
[email protected]
410-347-7309
[email protected]
www.ober.com
Agenda
• Government Enforcement Environment
• Why Develop a Compliance Plan?
• Elements of an Effective Compliance Plan
• Risk Areas for Physician Practices
• New Compliance Obligations
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Medicare and Medicaid
Regulations Remain Incredibly
Complex
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“There can be no doubt but that the statutes and
provisions in question, involving the financing of
Medicare and Medicaid, are among the most
completely impenetrable texts within human
experience. Indeed, one approaches them at the
level of specificity herein demanded with dread, for
not only are they dense reading of the most tortuous
kind, but Congress also revisits the area frequently,
generously cutting and pruning in the process and
making any solid grasp of matters addressed merely
a passing phase.”
—
Chief Judge Ervin
United States Court of Appeals for the
fourth Circuit in Rehabilitation
Association of Virginia v. Kozlowski, 42
F. 3d 1444, 1450 (4th Circuit 1994)
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Fighting Fraud is a Good
Investment
• Government continues to view Fraud, Waste,
and Abuse as a significant source of revenue
• The return-on-investment (ROI) for Health Care
Fraud and Abuse Control (HCFAC) program
– Since 1997, $4.9 returned for every $1.0
expended.
– 3-year average (2008-2010), $6.8 returned for
every $1.0 expended
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Have You Seen the OIG’s
Website Lately?
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Aggressive Enforcement
• From new joint DOJ/OIG website
www.stopmedicarefraud.gov
– “A joint effort by HHS and the Department of
Justice recovered a record $4 billion from
fraudsters in FY2010.”
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Why Develop a Compliance
Plan?
• Federal Sentencing Guidelines
– Must be an effective program to prevent and
detect violations of the law.
• OIG Compliance Guidance
– Individual and Small Group Physician
Practices, 65 Fed. Reg. 59,434 (Oct. 5, 2000)
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Why Develop a Compliance
Plan?
• Health Care Reform
– Compliance plans to become mandatory as a
condition of participation in Medicare and
Medicaid
– . . . but only after CMS promulgates
implementing regulations to establish the core
elements for mandatory compliance programs
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Need a Plan??
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Compliance
Standards
and
Procedures
Elements
of an
Effective
Compliance
Plan
Monitoring
and
Auditing
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Compliance
Standards
and
Procedures
Elements
of an
Effective
Compliance
Plan
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Compliance Standards and
Procedures
• Establish compliance standards and
procedures that are reasonably capable of
reducing the prospect of erroneous claims
and fraudulent activity, while identifying
any aberrant billing practices.
• Effective compliance standards will identify
the organization’s risk areas and establish
internal controls to contain those risks.
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Compliance
Standards
and
Procedures
Elements
of an
Effective
Compliance
Plan
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Oversight Responsibilities
• The organization must designate one or more
high-level individuals to oversee compliance
activities. Responsibilities may include oversight
of all compliance activities or be limited to
implementation of specific compliance functions.
• The organization must use due care not to put
individuals who have demonstrated a propensity
for violating the law into positions of substantial
discretionary authority.
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Compliance
Standards
and
Procedures
Elements
of an
Effective
Compliance
Plan
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Education and Training
• The organization must communicate its
standards and procedures to all employees,
professional staff, and physicians in a
meaningful and effective manner by
implementing an effective training program that
explains the requirements of the compliance
program and applicable laws.
• Compliance training may involve in-person
training sessions, newsletters, other written
materials, and/or bulletin boards.
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Compliance
Standards
and
Procedures
Elements
of an
Effective
Compliance
Plan
Monitoring
and
Auditing
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Monitoring and Auditing
• The organization must evaluate the
effectiveness of its compliance program on an
ongoing basis by monitoring compliance with its
standards and procedures and by reviewing its
standards and procedures to ensure they are
current and complete.
• A review of pending claims not yet submitted can
establish a benchmark that will be used in
ongoing reviews to chart the success of the
organization’s compliance efforts. (Counsel often
recommend this be conducted under attorneyclient privilege).
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Compliance
Standards
and
Procedures
Elements
of an
Effective
Compliance
Plan
Open Lines of
Communication
Monitoring
and
Auditing
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Open Lines of Communication
• The organization must put in place an
accessible system for reporting inappropriate
activities and for communicating compliance
questions and concerns.
• Standards and procedures must emphasize that
failure to report erroneous or fraudulent conduct
is a violation of the compliance program.
• Standards and procedures also must stress that
no retaliation may be taken against individuals
who in good faith report what reasonably
appears to be misconduct or a violation of the
compliance program.
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Compliance
Standards
and
Procedures
Elements
of an
Effective
Compliance
Plan
Open Lines of
Communication
Monitoring
and
Auditing
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Enforcement and Discipline
• The organization must enforce its
compliance standards through consistent
and appropriate disciplinary action.
• Disciplinary procedures should include, as
appropriate, discipline of individuals who
should have detected an offense but failed
to do so.
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Compliance
Standards
and
Procedures
Elements
of an
Effective
Compliance
Plan
Open Lines of
Communication
Monitoring
and
Auditing
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Response and Prevention
• If an compliance violation is detected, the
organization should take all reasonable
steps to respond appropriately to the
violation
– Take corrective action to rectify any harm
resulting from the current offense
– Prevent similar offenses from occurring in the
future.
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“Health Care in the New Millennium”
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Risk Areas for Physician Practices
• OIG Compliance Guidance for Physicians
– Accurate Coding & Billing
• Billing for non-covered services, unbundling, failure to
properly use coding modifiers, upcoding
– Reasonable & Necessary Services
• Medical record & orders should support appropriateness of
service
– Physician Documentation
– Improper Inducements, Kickback and Self-Referrals
• Financial arrangements with referrals sources, joint ventures,
leases, gifts/gratuities
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Risk Areas for Physician Practices
• OIG Work Plan FY 2012
– Compliance with Medicare Assignment Rules
– Physician-Owned Distributorships
– “Incident-To” Services
– Evaluation & Management Service Coding
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New Compliance Obligations
Did You Know??
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60-Day Repayment
Requirement
• §6402 of PPACA requires reporting and
repayment of overpayments within 60 days of
identification (or due date of next cost report, if
applicable)
– Applies to Medicare and other federal health care
programs
– What’s “identification”?
• Failure to repay within 60-days may be a false
claim
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60-Day Repayment
Requirement
• Regulatory guidance will be forthcoming... (or so
we’ve heard)
• Absent guidance, providers must struggle to come
up with practical approaches to complying with
the 60-day requirement
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Monthly Exclusion Checking
• What is exclusion checking?
• Growing number of State Medicaid Programs
are requiring monthly screening of current
employees and contractors.
• State Medicaid Director Letter instructed states
to “require providers to search the HHS-OIG
website monthly to capture exclusions and
reinstatements that have occurred since the last
search.”
• HHS-OIG CIAs still only require annual
screening
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Monthly Exclusion Checking
• Need to have a policy
– Before hiring and at least annually
• Need to check the websites
– http://exclusions.oig.hhs.gov/search.html
– http://epls.arnet.gov
• Check everyone, including physicians
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Conclusion – What’s Next?
• Increasingly aggressive federal/state
enforcement
– Alphabet soup of government contractors
looking for fraud, waste and abuse
• Whistleblowers driving government
priorities
• Increasing importance of comprehensive
and aggressive compliance efforts
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“Be careful out there”
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Questions?
Bill Mathias
Kristin Carter
Ober | Kaler
Ober | Kaler
410-347-7667
[email protected]
410-347-7309
[email protected]