Transcript Title

Corporate Compliance Revisited:
OIG’s New Supplemental Guidance for
Nursing Facilities
Presented by:
Terrill Johnson Harris
Allyson Jones Labban
Smith Moore Leatherwood LLP
300 North Greene Street, Suite 1400
Greensboro, NC 27401
Telephone: (336) 378-5200
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Background
• Compliance Program Guidance for Nursing Facilities
published in 2000
– Established fundamentals of an effective
compliance program
– OIG believes that compliance programs help SNFs:
•provide quality care
•avoid submitting false or inaccurate claims
•avoid other illegal practices.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Background
• OIG motivated to issue Supplemental Guidance by
significant changes in:
– delivery of care
– reimbursement
– enforcement environment
– level of concern regarding quality of care
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Background
• On September 30, OIG published the Supplemental
Program Guidance for Nursing Facilities
– Based on:
•Regulations
•CMS transmittals and program memoranda
•Anti-Kickback and Stark statutes
•OIG Advisory Opinions and special bulletins
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Background
• The OIG recognizes that:
– the guidance is not “one size fits all”
– nursing facilities have different levels of resources
• The OIG encourages each facility to adapt the
guidance to fit its structure, operations, resources, and
the needs of its residents.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Background
• Think of the Supplemental Guidance as a roadmap to
compliance; your route depends on the areas of risk
most relevant to your facility and the resources at your
disposal.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Benefits of a Compliance Program
• Decreases likelihood of unlawful and unethical behavior
• Identifies and permits correction of problems at an early
stage
• Encourages employees to report problems, which allows
for corrective action
• Minimizes financial loss
• Improves quality of care
• Enhances reputation
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Fraud and Abuse Risk Areas
• Quality of Care
• Submission of Accurate Claims
• The Federal Anti-Kickback Statute
• Other Risk Areas
– Physician Self-Referrals
– Medicare Part D
• HIPAA Privacy and Security Rules
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Consolidated Billing
• Pay attention to which services are excluded from
consolidated billing.
– Examples: physician professional fees, certain
ambulance services
• Be aware of which services are always subject to
consolidated billing.
– Examples: PT, OT, and ST services furnished to
SNF residents
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care
• OIG notes that by 2030, elderly population projected
to grow to 71 million.
• Aging of America is one of the major public health
challenges of the 21st century.
• Rise in population will create greater strain on an
already-burdened system and will likely spur CMS to
more aggressive survey actions.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care
• Failure of care on a systematic/widespread basis may
result in SNF being found liable for submitting false
claims under the False Claims Act and Civil Monetary
Penalties Law.
– Theory: Care was so bad that it is simply not
compensable
– Be aware of potential malpractice considerations
(i.e., denial of payment = government statement
that care was shoddy)
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Staffing
• Federal law requires sufficient staffing to obtain or
maintain the highest possible physical, mental, and
psychosocial well-being of residents.
– Staffing numbers and competency are critical
pieces of the puzzle.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Staffing
• SNFs are strongly encouraged to regularly evaluate
staffing patterns and staff competency. Factors to
examine:
– Resident case mix and staff-to-resident ratios
– Staff skill levels and turnover
– Disciplinary records, payroll, timesheets
– Adverse event reporting
– Interviews with staff, residents, and families.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Resident Care Plans
• A comprehensive, interdisciplinary care plan is
essential to reducing risk.
– Interdisciplinary team — development of the care
plan should include complete and thorough clinical
assessments and open lines of communication.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Resident Care Plans
• Every member of the facility has a role to play:
– Residents and their families should be involved.
– Nursing staff should ensure that physicians are
supervising the residents’ care.
– Each discipline should work together so that the
end result is a complete picture of the resident’s
status.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Medication Management
• Implement medication management processes that:
– advance patient safety
– minimize adverse drug reactions
– enable prompt discovery/remedy of any issues
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Medication Management
• One key for medication management is consulting
pharmacist:
– Specializing in medication needs of
geriatric/institutionalized populations
– Must review each resident’s drug regimen at least
monthly
– Must establish a system of records to ensure that
records are in order and all controlled substances are
accounted for and maintained
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Medication Management
• SNFs may provide for medication management services
through contractual agreement with a pharmacist or by
direct employment.
• Again, focus on the team approach—too much for one
person to juggle.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Psychotropic Meds
• Facilities cannot use any medication as a means of
chemical restraint for purposes of discipline or
convenience.
• Facilities cannot administer any drug to a resident that is
not required to treat the resident’s medical symptoms.
• Residents’ drug regimens must be free from unnecessary
drugs.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Psychotropic Meds
• Possible compliance measures:
– Educate providers regarding appropriate monitoring
and documentation practices
– Conduct regular drug regimen audits
– Review resident care plans to ensure that they
incorporate an assessment of the resident’s medical,
nursing, and psychosocial needs
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Resident Safety
• SNFs are required to develop and implement policies
and procedures to prohibit mistreatment, neglect, and
abuse.
• Effective P&P address prevention, detection, and
response to mistreatment, abuse, and neglect.
• Policies and procedures are just one component of an
effective compliance program.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Resident Safety
• Compliance program considerations:
– Implementing practices in addition to P&P
– Broad definitions (staff-on-resident abuse, residenton-resident abuse, abuse from unknown sources)
– Confidential, 24/7 reporting
– Staff and family education (consider posters,
brochures, and online resources)
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Quality of Care: Resident Safety
• Resident on resident abuse
– Increasing concern noted by OIG
– Facilities must:
•Screen
•Monitor
•Educate
•Intervene
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Staff Screening
• SNFs cannot hire staff members who have been found
guilty of abusing, neglecting, or mistreating residents, or
who have a negative finding entered into a state nurse
aide registry.
• Effective recruitment, screening, and training are
essential.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Staff Screening
• Sources to evaluate:
– Criminal records (check state law regarding State vs.
Federal record checks)
– Educational history
– Licensure and certification
– Training
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Submission of Accurate Claims
• A false or fraudulent claim is one where:
– Items were not provided or not provided as claimed
– Services were not medically necessary
– Failure of care
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Submission of Accurate Claims
• Common pitfalls:
– Duplicate billing
– Insufficient documentation
– False or fraudulent cost reports
– Improper RUG classifications (upcoding)
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Submission of Accurate Claims
• Compliance considerations:
– Train responsible staff to ensure the person
gathering and analyzing data is knowledgeable about
the purpose and utility of the data.
– Train staff to ensure appropriate evaluation of
resident case mix data.
– Regularly audit and review.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Therapy Services
• Common risk areas:
– Improper use of therapy services to inflate the
severity of RUG classifications
– Overutilization of therapy services billed on a fee-forservice basis to Part B under consolidated billing
– Stinting on therapy services provided to patients
covered by a Part A PPS payment
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Therapy Services
• Compliance considerations:
– Develop polices and procedures regarding therapy services
– Develop a process to measure/evaluate whether residents are
receiving medically appropriate services
– Require therapy contractors to provide complete
documentation of each resident’s services
– Regularly reconcile MD orders with services provided
– Interview residents/family members regarding services
received
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Restorative and Personal Care Services
• Compliance considerations to ensure that services such as
turning/positioning, range of motion, and incontinence are care
provided:
– Interview residents/family members
– Review medical record documentation
– Consult with attending physicians, medical director, and
pharmacist
– Observe the residents
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Excluded Individuals and Entities
• A SNF cannot hire or contract with a person or entity
excluded from the Medicare program.
• OIG strongly advises SNFs to screen all prospective
owners, officers, directors, employees, contractors, and
agents prior to engaging their services.
• OIG’s searchable database of excluded individuals is
available at:
http://www.oig.hhs.gov/fraud/exclusions/exclusions_list.asp
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Kickback Law
• Anti-Kickback law prohibits offering or paying anything of
value in return for patient referrals.
• Also prohibits offering or paying anything of value in
return for purchasing, leasing, ordering, or arranging for
or recommending the purchase, lease, or order of any item
or service reimbursable by federal health care programs.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Kickback: Free Goods/Services
• Arrangements identified as areas of concern by OIG:
– Pharmaceutical consultant services, medication
management, or supplies offered by a pharmacy
– Infection control, chart review, or other services offered by
laboratories and suppliers
– Gifts of equipment, computers, or software applications
– DME or supplies offered by DME suppliers
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Kickback: Free Goods/Services
• Arrangements identified as areas of concern by OIG:
– Administrative services provided by laboratory
phlebotomists
– Hospice nurses providing care to non-hospice patients
– RNs provided by a hospital
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Kickback: Hospice
• Hospice arrangements are of particular concern:
– Be leery of offers of free nursing services, additional room
and board payments, or inflated payments—signs of
improper arrangements to induce referrals.
– Hospice staff should never provide services to non-hospice
patients.
– Patients should be given a choice of hospice providers.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Kickback: Service Contracts
• Providing or accepting goods or services at below market value
rates presents a heightened risk of fraud and abuse.
• Periodically review contractor and staff contracts to ensure:
– There is a legitimate need for the goods/services
– The services or supplies are actually provided and
adequately documented
– Compensation is FMV resulting from an arms-length
transaction
– Arrangement is not related to volume or value of federal
healthcare program business
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Kickback: Service Contracts
• Implement polices that ensure prescribing decisions are
based on the best interest of the patient.
• Physician contracts should also be reviewed periodically,
just like any other service contract.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Kickback: Discounts
• Discount must be:
1) in the form of a reduction
2) in the price of a good or service
3) as a result of an arms-length transaction
• Discounts should be properly disclosed and accurately
reflected on cost reports.
• Discounts cannot be tied or linked to referrals for other
federal healthcare program business.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Kickback: Swapping
• Discounts from providers or suppliers are prone to
“swapping problems”.
• Price offer cannot be linked directly or indirectly to
referrals.
• Avoid accepting low price on an item or service covered
under Part A in exchange for referral of business that the
supplier or provider can bill directly to a federal health
care program.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Kickback: Reserved Bed Payments
• Reserved bed payments are permitted under certain
terms. It is imperative to avoid:
– Payments that result in “double-dipping”
– Sham payments (beds are already occupied, etc.)
– Excessive payments that exceed the actual cost of
holding a bed
• Reserved bed arrangements should only secure needed
beds, not future referrals.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Physician Self-Referrals
• Nursing homes should be aware of Stark law, which prohibits
entities that furnish certain services from billing Medicare if
referral comes from a physician with whom the entity has a
prohibited financial relationship.
• Nursing home services not included but lab, PT and OT are.
• Pay close attention to relationships with physicians (treating and
owners, medical directors, consultants).
• Avoid issues by having written agreements with FMV compensation
and track non-monetary compensation provided annually to
referring physicians.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Supplementation (Cost Sharing)
• A SNF may not charge a Medicare or Medicaid
beneficiary or third party any amount over and above
what is required to be paid under Medicare/Medicaid.
– Cannot condition acceptance of a new resident on
receiving a payment from the hospital or resident
– Cannot accept extra payments or free services from
hospital or other source, even though reimbursement
considered inadequate
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Medicare Part D
• Covers all Medicare beneficiaries, including SNF
residents
• CMS encourages SNFs to provide education and
information to residents regarding available Part D plans
• SNFs should never:
– Require residents to use a certain plan
– Accept payments from a plan or pharmacy to
influence a resident to select a particular plan
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
HIPAA
• All SNFs that conduct electronic transactions governed
by HIPAA must comply with Privacy Rules as of April 14,
2003 and Security Rules as of April 20, 2005.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Other Considerations
• Organizational culture that promotes compliance
• Code of Conduct
– Fundamental principles and values held by the
organization
– Framework for compliance
– Organization’s commitment to compliance
• Annual review of compliance program and procedures
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Self-Reporting
• Prompt voluntary reporting will demonstrate good faith
and effectiveness of compliance program.
• Voluntary reporting is considered a mitigating factor in
determining penalties.
• Consult with counsel to navigate reporting process.
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
2009 OIG Work Plan Risk Areas
• SNF Consolidated Billing
• Accuracy of Coding for RUGs
• Part B Payments for Psychotherapy Services
• Calculation of Medicare Benefit Days
• CMS Oversight of MDS Data
• Residents 65 and Older on Antipsychotic Drugs
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
2009 OIG Work Plan Risk Areas
• Hospice Care in Nursing Homes
• Part B Services in Nursing Homes
– ENT
– DME, including pressure-reducing mattresses, wound
therapy pumps, and power wheelchairs
• Payment for Drugs Under Medicare Part D
• Dual Eligible Beneficiaries
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
2009 OIG Work Plan Risk Areas
• Transparency Within Nursing Facility Ownership
• Use of MDS and RAP to develop plans of care
• States’ Use of CMP Funds
• Medicaid Payments for Bed Holds
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
QUESTIONS?
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Corporate Compliance Revisited:
OIG’s New Supplemental Guidance for
Nursing Facilities
Presented by:
Terrill Johnson Harris
Allyson Jones Labban
Smith Moore Leatherwood LLP
300 North Greene Street, Suite 1400
Greensboro, NC 27401
Telephone: (336) 378-5200
© 2008 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.