Compliance Program Development and Effectiveness Review
- A significant part of our health law practice involves the creation, implementation, and review of compliance programs for health care providers and other businesses. Some of our compliance practice is devoted to institutional provides such as hospitals, health systems and nursing homes. We are increasingly advising our smaller health care clients, such as physician groups, home health agencies and other providers on establishing appropriate compliance programs. The entire industry is trending toward the adoption of compliance programs spurred on by a true desire to reduce risk as well as recent legal changes that mandate the adoption of compliance programs for most health care providers.
We have made a major firm committment to our compliance practice. Health care attorney John Fisher recently obtained national certification in health care compliance through the Health Care Compliance Association. We have assembled a team attorneys with various legal backgrounds, including health law, employment law, non-profit tax law and other areas to complement Mr. Fisher’s focus on compliance issues faced by health care providers.
We provide compliance program development and review services to hospitals, individual physicians and group practices, dental groups, chiropractic groups, home health agencies, skilled nursing facilities, durable medical equipment suppliers, ambulance providers, therapy clinics, ambulatory surgery centers, and behavioral health care providers. We assist providers in conducting internal audits, internal investigations, compliance program gap analysis and effectiveness reviews. We have also assisted providers who are the subject of reviews by institutions where they may be employed or have staff privileges.
Examples of some of our compliance program related involvement in the health care area include:
- Conducting effectiveness reviews and making suggestions for enhancements to existing compliance programs.
- Working with governing bodies to develop initial compliance programs.
- Advising compliance officers and governance with respect to ongoing monitoring and auditing.
- Assisting providers to conduct internal audits and assessments.
- Assisting providers to focus on specific risk areas that may affect their practices.
- Assisting providers in the reacting to compliance reports including investigations and corrective action plan development.
- Conducting detailed compliance related research in the course of acquisitions of other providers.
- Creating programs that leverage existing resources and expertise into an enterprise management system addressed at compliance issues.
- Compliance Programs Are An Essential Element of Health Care Operations
Effective compliance programs have become an essential element of an effective regulatory risk reduction program. The importance of compliance programs have been repeatedly emphasised by government officials over the past decade. Recently, Marilyn Tavenner, Acting Administrator of the Centers for Medicare & Medicaid Services (CMS) released a brief article on the CMS Blog emphasizing the use of “predictive modeling” technologies to identify specific providers that warrant further investigation. The Acting Administrator touts that predictive modeling has already identified 2,500 leads for further investigation, 600 preliminary law enforcement cases, and 400 direct interviews with providers that have taken place due to the use of predictive modeling.
The 2012 Office of Inspector General Annual Work Plan also referred to new methods and programs to detect potential billing anomolies. The OIG states that it will be using data matching programs to identify not only providers who are at a high risk of having incorrect billings, but also providers who have low risk. The OIG claims that it will be examining both types of providers to determine the impact that compliance program operations have on the accuracy of billings. This is alarming because it means that the OIG will be eamining the operations of compliance programs who show low risk of billing anomolies.
The Coming of Mandatory Compliance Programs
The PPACA created the concept of mandatory compliance programs for most providers. Nursing homes are first on the list and must certify that they have an effective compliance program by 2013. We are expecting additional regulations on what constitutes and effecive compliance progam as well as specific timelines defining when other provider types will be required to adopt compliance programs as a condition of participation in the Medicare and Medicaid programs.
Compliance Programs – One Size Does Not Fit All
The OIG Guidance on Compliance Programs as well as the Federal Sentencing Guidelines make it clear that one size does not fit all when it comes to compliance program development. An effective compliance program needs to be strategically developed based on identification of the risk factors that are specific to the size and nature of the organization. It is not prudent to simply copy the policies of another organization and adopt them as your own. You should create a structure as well as topical policies that reflect the nature of your particular organization; sometimes right down to the personalities that are involved in the various aspects of your operations.
There are certain core principals that will be common to all compliance programs. However, your program should be appropriately scaled to the size and resources of your organization. I am not suggesting that you fail to allocate sufficient resources to compliance. Decisions regarding allocation of resources are difficult but must be addressed. At the same time, you do not want to develop policies that you will never have the resources to appropriately follow. This carries the risk of creating a “Roadmap” that demonstrators to investigators the things that you are NOT doing. Policies that you do not follows are argueably worse than having no policies at all; at least in some areas.