Kusserow on Compliance: Meeting long term care compliance program legal mandates

The Patient Protection and Affordable Care Act (ACA) included a mandate that long term care (LTC) skilled nursing facilities (SNFs) and nursing homes adopt and implement an effective compliance and ethics program as a condition of participation in the Medicare and Medicaid programs. Facilities have until November 28, 2019 to meet the compliance program requirements. At that time, state survey agencies will begin assessing facility compliance with implementation of an effective compliance and ethics program following the CMS State Operation Manual “Guidance to Surveyors for Long Term Care Facilities.”  CMS requires annual review of its compliance and ethics program to ensure that modifications are made to reflect changes in laws, regulations, and to reduce violations.

Tom Herrmann, J.D., served over 20 years in the OIG Office of Counsel and for the past ten years has been a compliance consultant, specializing in nursing home compliance programs. He explains that the new mandate parallels the HHS OIG Compliance Program Guidance for Nursing Facilities and those that followed the guidance will have little problem in meeting the new mandate, but those who didn’t have only months to come into compliance. For those organizations with weak programs, he suggests the most cost effective method to begin catching up is to have a compliance expert perform a gap analysis to identify elements needed for the compliance program and how be able to evidence program effectiveness. A gap analysis should provide a “road map” and step-by-step plan for bringing a facility into compliance with the mandates. Those that have already implemented their compliance program should consider having an effectiveness evaluation conducted by experts to verify it will meet mandated standards.

Kash Chopra, J.D., has assisted many smaller LTC organizations in answering the challenge of meeting the mandate challenge by providing Designated Compliance Officers (DCOs) that assume the responsibility of being the Compliance Officer, including the building and managing of the program. The OIG recognizes using DCOs when the wide range of compliance responsibilities become a serious problem for smaller organizations and a full time Compliance Officer is unaffordable. The OIG’s position is that “For those companies that have limited resources, the compliance function could be outsourced to an expert in compliance.”  The OIG further recognize that an outsourced party can provide services on a part time basis.  Using highly experienced experts can lower fixed costs, reduce staff loads, and avoid using someone who is less qualified. Also, most of the work can be done remotely. Using an outside expert part-time, can accomplish more than a lesser experienced full time employee. She advises comparing the cost of hiring a compliance officer against that of a part time expert acting as the DCO.

For more information on this subject, Kash Chopra can be reached at kchopra@strategicm.com or via telephone at (703) 535-1413. Also see https://compliance.com/blog/contracting-compliance-program/

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2018 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Understanding and addressing whistleblowers

The vast majority of the cases resolved by the Civil Division of the Department of Justice (DOJ) were cases brought by “whistleblowers” under the qui tam provision of the False Claims Act (FCA). Whistleblowers are responsible for an even higher percentage of cases resulting in OIG Corporate Integrity Agreements (CIAs). Although most compliance officers are well aware of this program, many remain unclear as to how the process works. Tom Herrmann, J.D., who served over 20 years in the Office of Counsel to the OIG and as an Appellate Judge for the Medicare Appeals Board, explained that Congress permitted a whisltleblower called the “Relator” to file a case with the DOJ under the FCA.  Since this provision of law went into effect in 1986, there have been over 10,000 qui tam cases filed with a current average of one such case being filed every day of the year. The intent was to create incentives for private parties to detect and pursue fraud under the FCA. In return for reporting this information, Relators receive a portion (usually about 15 to 25 percent) of any recovered damages.  Once the lawsuit is filed, it is placed “under seal”, meaning that it is kept secret from everyone but the government, in order to give the DOJ enough time to investigate the allegations in deciding whether to join (“intervene”) in the case. Intervention by the DOJ occurs only in about one in five qui tam lawsuits, leaving whistleblowers the option to pursue cases on their own, however the chances of success are much lower than in cases when the government joins. Most successful qui tam cases are resolved through settlement negotiations rather than a court trial, although trials may occur.

Kash Chopra, J.D., noted that the overwhelming number of cases that result in a CIA, arise from whistleblowers and these, in turn, are based upon violations of the federal Anti-Kickback Statute (AKS). It is the government’s position that all claims arising from a corrupt arrangement violating the AKS or in some cases, the Stark Law, are considered fraudulent. This is even when the services rendered were needed and provided appropriately.  She advises here clients that the best ways to manage the whistleblower risk is to ensure that they are channeled through internal communication channels and their complaints are promptly evaluated, investigated, and resolved.  It is worth considering the following:

  1. Using outside experts to independently audit arrangements with physicians and evaluate compliance communication channel effectiveness.
  2. Ensuring a 24/7 hotline operated externally by experts in recognizing health care compliance issues.
  3. Reviewing/updating hotline-related polices/procedures (confidentiality, anonymity, non-retaliation, duty to report, etc.).
  4. Making sure that the duty to report suspected wrongdoing is explained in the Code, policies and training.
  5. Having trained and competent people on hand to conduct prompt and competent investigations of matters raised through the hotline.
  6. Moving quickly to use CMS and OIG self disclosure protocols when there is credible evidence of violations; and not wait until the DOJ gets involved.

For more information on this subject, Kashish Parikh-Chopra can be reached at kchopra@strategicm.com or via telephone at (703) 535-1413.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2018 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Internal investigations by any other name

In most organizations, there are many people who may be called upon to respond to a complaint or concern raised by an employee; few of these complaints or concerns, however, might rise to the level of requiring a formal investigation. Emil Moschella, JD is a highly experienced health care compliance consultant who previously served as an FBI executive and also taught at the FBI National Academy. He warns to be careful about calling something an “investigation,” as it is an emotionally charge term that may lead people to infer a lot more about what is occurring than is factually correct. If a person believes that something may result in referral to an enforcement agency, the situation may make them more defensive and cautious when responding to questions.  As such, wherever possible, he advises using neutral terminology to avoid unnecessarily exciting concerns and speculation among employees. There are a lot of other terms that can be used as the definition of “investigation.” It is a detailed and systematic inquiry into something, often through gathering facts and information to solve a problem or resolve an issue. A number of other activities in organizations could meet that general definition, including conducting an audit, evaluation, internal inquiry, or internal review. He has found that characterizing the activity using these “less charged” terms can avoid the potential emotional response of using the term investigation.

Kashish Parikh-Chopra, JD, MBA, CHC, CHPC works with compliance officers to train staff on conducting internal investigations. She notes that many complaints, allegations, and concerns are often very routine in nature that can be resolved within a day or two through normal management procedures or with Human Resources. However, when confronted with a serious or complex matter, it is necessary to have properly trained individuals conduct the investigation in order to avoid aggravating matters and potentially creating additional problems. Professional investigators cannot be expected to be available for a compliance office to conduct an internal investigation, however, certain basic principles should be taught to anyone taking on the role of an investigator in an organization. Those who may become actively involved in internal investigations may include individuals from the compliance office, Human Resources, internal audit, privacy/security officers, legal counsel, etc. They should undergo training by experts to learn how to plan an investigation, conduct proper interviews, organize evidence, prepare written reports, and manage documentation. This can be done by participating in investigator training through webinars, conferences, or having experts provide training on-site.

 

For more information, Kashish Parikh-Chopra can be reached at kchopra@strategicm.com or via telephone at (703) 535-1413.

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2018 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Tips on finding the right hotline vendor

One of the critical elements of an effective compliance program outlined by OIG compliance guidance is the establishment and maintenance of communication channels with employees and management. Such communication permits employees to report sensitive matters outside the normal supervisory channels. Both the U.S. Sentencing Commission and DHHS Office of Inspector General (OIG) call for a hotline. Results from the Ninth Annual Healthcare Compliance Benchmark Survey conducted by SAI Global and Strategic Management Services found that 55 percent of organizations outsource their hotline. Daniel Peake of the Compliance Resource Center provides hotline services and explained there are many reasons why so many choose to outsource their hotline. Although there are benefits of maintaining the function in-house, it is far outweighed by the advantages of outsourcing it to a professional vendor service. He cited some of these reasons why so many decide to use a professional vendor service, including the following:

  • Cost of staffing with qualified people in-house is prohibitive
  • Systems must blocked and “backstopped” to prevent anonymous caller identification
  • Those answering the calls in house should not be highly visible to the work force
  • Calls should never be answered in an area where they can be overheard by others
  • Hotline vendors have the training and experience to handle complainants
  • Callers are nervous and speaking with an outside party generally is reassuring

TIPS FOR EVALUATING HOTLINE VENDORS

  1. Cost of operation. Vendor’s services should be a set fee under $2/employee/year.
  1. Contract. Avoid contracts not permitting cancellation by 30 day written notice. Client should be held by good service, not by contracts.
  1. Industry expertise. Seek vendors knowledgeable of health care issues.
  1. Hotline services. Must include both live operator and Web-based reporting. Either approach alone has its deficiencies and is not a best practice.
  1. Policies and procedures. Vendor should assist with developing operating protocols for following up an allegations and complaints received through the hotline.
  1. Timelines. Insist on a provision of a full written report within one business day of receipt of the call. For urgent matters, it should be immediate.
  2. Reports provided. Written reports must clear, concise, and of high quality.
  3. Report Delivery. The manner the report is delivered is important. There is security problems with reports provided either by facsimile or email. Insist on secure web-based reporting with notification of a report being provided via email.
  1. Insurance. Like any other vendor, the company should have at least one to three million dollars liability coverage.

 

For more information, Daniel Peake can be reached at (dpeake@compliancereource.com or (703)-236-9854)

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2018 Strategic Management Services, LLC. Published with permission.