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Mandatory Compliance Plans: Are You Ready?

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Title: Mandatory Compliance Plans: Are You Ready?


1
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
2
Agenda
  • Government Enforcement Environment
  • Why Develop a Compliance Plan?
  • Elements of an Effective Compliance Plan
  • Risk Areas for Physician Practices
  • New Compliance Obligations

3
Medicare and Medicaid Regulations Remain
Incredibly Complex
4
  • 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)
5
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

6
Have You Seen the OIGs Website Lately?
7
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.

8
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)

9
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

10
Need a Plan??
11
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
12
(No Transcript)
13
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.

14
(No Transcript)
15
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.

16
Compliance Standards and Procedures
Oversight Responsibilities
Elements of an Effective Compliance Plan
Education and Training
17
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.

18
Compliance Standards and Procedures
Oversight Responsibilities
Elements of an Effective Compliance Plan
Education and Training
Monitoring and Auditing
19
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).

20
Compliance Standards and Procedures
Oversight Responsibilities
Elements of an Effective Compliance Plan
Open Lines of Communication
Education and Training
Monitoring and Auditing
21
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.

22
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
23
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.

24
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
25
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.

26
Health Care in the New Millennium
27
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

28
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

29
New Compliance Obligations
Did You Know??
30
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

31
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

32
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

33
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

34
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

35
Be careful out there
36
Questions?
Bill Mathias Ober Kaler410-347-7667wtmathias_at_o
ber.com
Kristin Carter Ober Kaler410-347-7309kccarter_at_
ober.com
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