Mandatory Compliance Plans: Are You Ready?

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Mandatory Compliance PlansAre You Ready?
2011 Medical Practice Strategies
Conference Montgomery County Medical Society
Bill Mathias Ober Kaler410-347-7667wtmathias_at_o
ber.com
Kristin Carter Ober Kaler410-347-7309kccarter_at_
ober.com
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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 OIGs Website Lately?
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Aggressive Enforcement

• From new joint DOJ/OIG website www.stopmedicarefra
  ud.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
Response and Prevention
Oversight Responsibilities
Enforcement and Discipline
Elements of an Effective Compliance Plan
Education and Training
Open Lines of Communication
Monitoring and Auditing
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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
  organizations risk areas and establish internal
  controls to contain those risks.

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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
Oversight Responsibilities
Elements of an Effective Compliance Plan
Education and Training
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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
Oversight Responsibilities
Elements of an Effective Compliance Plan
Education and Training
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
  organizations compliance efforts. (Counsel often
  recommend this be conducted under attorney-client
  privilege).

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Compliance Standards and Procedures
Oversight Responsibilities
Elements of an Effective Compliance Plan
Open Lines of Communication
Education and Training
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
Oversight Responsibilities
Enforcement and Discipline
Elements of an Effective Compliance Plan
Education and Training
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
Response and Prevention
Oversight Responsibilities
Enforcement and Discipline
Elements of an Effective Compliance Plan
Education and Training
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
• Whats 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
  weve 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 Whats 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 Ober Kaler410-347-7667wtmathias_at_o
ber.com
Kristin Carter Ober Kaler410-347-7309kccarter_at_
ober.com