If the roof on your house leaks, you fix it to avoid further damage to the roof and the internal components of your house. If the hot water heater goes on the blink, you repair or replace it. Most homeowners annually inspect for signs of termite damage or other infestation and, if it’s found, they call in the Orkin man.
The same is true of compliance programs. One of the most important elements of your compliance program is how and when you respond to suspected or confirmed violations of the facility’s compliance program. That includes violations both of the compliance program you’ve designed and implemented and the substantive laws and federal health care programs by which nursing facilities must abide. In designing this portion of your company’s compliance program, here are some key elements and issues to guide you 1:
- Where the facility receives any reasonably reliable report or indication of a compliance violation, the compliance officer, senior management and/or their designee should immediately investigate to determine if an actual violation of the compliance program or health care program requirements has occurred.
- If so, corrective action steps should be taken, appropriate to the violation. This may include an internal corrective action plan, the return of simple overpayments that do not amount to fraud and abuse, a report to the government (such as the required report to the State survey agency in cases of resident abuse, neglect or misappropriation of resident property) or in some cases a referral to State or Federal criminal or civil law enforcement authorities. Remember that:
- The existence or absence of a monetary loss to the company is not determinative of whether a compliance violation has occurred. For example, a violation of quality of care requirements may not result in monetary loss to the facility, but still may constitute a compliance violation, depending on the facts.
- The facility may and, in some cases, probably should seek the outside help of counsel or clinical/billing experts to determine whether a situation constitutes a compliance violation.
- In addition to required reports of compliance violations (such as the State survey agency report mentioned above, or reports which may be required to a professional licensing board such as a Board of Nursing), the OIG has also established a voluntary self-disclosure mechanism for providers to report compliance issues. The OIG strongly encourages the use of this process. Providers should consult with counsel when considering whether to take advantage of this option.
- If a provider’s investigation finds overpayments which do not amount to fraud, these should be repaid using the normal repayment process through the fiscal intermediary or Medicare contractor, as applicable, but should still consider whether systems changes are in order to prevent a recurrence of the same or similar billing or claims problems.
- If a provider’s investigation suggests potential fraud or abuse, an internal investigation should be started that should include, as appropriate, a review of documents, systems analysis and interviews with appropriate employees, contractors, residents and/or family members. Providers should consider enlisting the help of counsel and, under their direction, outside experts if necessary. The provider should:
- Maintain an investigative file which includes documentation of the potential violation, a detailed description of the investigation conducted (including who investigated and what methods were used), copies of key documents and interviews from the investigation, a log of witnesses interviewed and the results of the investigation, including any disciplinary action taken or corrective measures implemented.
- Empower the compliance officer and/or committee to use the results of the investigation to evaluate whether other similar or related problems may exist in the facility’s operations and to implement corrective actions regarding those.
- Remove any employees from managing or directing the investigation if their involvement threatens to compromise the integrity of the investigation.
- Prevent the destruction of documents or other evidence relevant to the investigation, working in tandem with legal counsel.
A Word on Reporting Compliance Violations – The OIG strongly encourages providers to report to appropriate Federal authorities any confirmed compliance violations that constitute a violation of Federal law (such as the Anti-Kickback Statute or False Claims Act, among others). As noted above, the OIG has established a voluntary self-disclosure protocol for such situations and there are benefits to providers for voluntarily self-disclosing such situations. Having said that, and without in any way suggesting providers should not self-disclose violations of the law, the issues surrounding self-disclosure are complex. Properly determining what to disclose (i.e., what actually constitutes a violation of applicable law), when to report it and to whom to report requires careful consideration and a working knowledge of the fraud and abuse laws. Providers should carefully consider enlisting the assistance of counsel in making these determinations. Consider finding counsel experienced in State and Federal fraud and abuse laws, who have actually helped other providers through such situations and who understand how the Federal civil and criminal law enforcement authorities to whom such reports might be made actually work. Reporting, done when appropriate and handled properly, can be very beneficial to providers, but the entire process of deciding what to report, when and to whom is complex enough that most providers will need help navigating the process.
These guidelines are taken from the OIG’s March 2000 Compliance Guidance for Nursing Facilities. The OIG’s 2008 Supplemental Compliance Guidance for Nursing Facilities did not change the substance of the OIG’s 2000 guidance, but did reinforce these important elements of nursing facility compliance programs.