Every homeowner knows the importance of complying with legal requirements that apply to their neighborhood and city. Zoning ordinances dictate the permitted uses of the land, requirements for “setback” from streets and common areas, trash disposal and a host of other requirements that impact how the owner can use his or her property. Violation of those requirements results in sanctions for the homeowner in terms of monetary fines or city orders to “abate” impermissible uses. Every city makes these requirements known to homeowners along with the sanctions for violating them.
The same should be true with a provider’s compliance program. In addition to ensuring that all employees at all levels (including senior management and Boards of Directors) understand the range of permissible and impermissible actions facilities can take, they should also fully understand the consequences of failing to abide by those requirements.
The OIG in its compliance publications refers to this concept as “compliance as an element of employee performance.” This simply means that employees at all levels should understand that their full participation in the company’s compliance program, and abiding by applicable legal requirements that make up that program, is an element of employee performance, just like coming to work on time and carrying out their assigned duties. This expectation should be accompanied by discipline according to the facility’s normal disciplinary sanctions process for any other violation of an employee’s expected performance and all employees should be fully aware of this, and reminded of it from time to time.
According to the OIG’s March 2000 Compliance Guidance for Nursing Facilities:
- All nursing facilities, regardless of size or resources, should ensure that their employees understand the importance of compliance with program requirements, and the company’s dedication to compliance.
- Compliance participation and observance should be a factor in all employees’ annual or periodic performance evaluations.
- Small facilities that may not have a formal employee evaluation system should nonetheless informally inform employees of their compliance responsibilities and applicable sanctions for failing to fulfill them.
- Providers should not forget the power of positive reinforcement, as opposed only to punitive approaches, and should consider recognizing or rewarding employees who embrace all aspects of the compliance program, including both their own compliance and their role in teaching others about compliance and reporting suspected violations at any level of company operations.
- Managers and supervisors should be empowered both to reward and sanction, as appropriate, evenly and uniformly an employee’s participation or lack thereof in the facility’s compliance program.
- Employees should be periodically trained in compliance policies and procedures.
Supervisors and managers have an especially important role in ensuring compliance with applicable laws and health care program requirements (such as Medicare and Medicaid). Therefore, according to the OIG:
- Facility and company policies should require that managers, especially those involved in overseeing the delivery of resident care and the submission of claims for payment:
- Periodically discuss with employees and relevant outside contractors (such as therapists, pharmacy consultants, billing contractors) the facility’s compliance policies and legal requirements that apply to their jobs;
- Periodically remind employees and contractors whom they manage or supervise that strict compliance with these elements of the compliance program and the law are conditions of their continued employment or ongoing contractual relationship;
- Periodically inform and remind employees and contractors that the facility will take disciplinary action, up to and including termination of the employment or contract relationship, for violation of compliance policies or applicable laws.
- Managers should be disciplined for failing to carry out these responsibilities or for failing to detect compliance violations, where their reasonable diligence would have led to detection, or earlier detection, and provided the facility with the opportunity to correct them or prevent their recurrence.
- Managers who embrace these responsibilities should be rewarded for doing so.
Remember that the OIG has stated that a facility’s or company’s disciplinary policies for compliance program violations may be stated in their normal employee manual if the provider has one. They do not necessarily have to be repeated in the compliance program itself. A provider who takes this approach should still reference somewhere in the written compliance program the applicable employment sanctions for failing to abide by compliance program requirements or applicable law, and give employees a specific reference to those parts of the employee handbook or manual which spells out those potential sanctions.
Whether a provider includes policies describing available sanctions for compliance program violations in employee handbook or in the written compliance program, those policies should include several key elements:
- They should clearly spell out the potential sanctions for compliance program violations (including facility compliance policies and applicable law);
- Employees or contractors who intentionally fail to comply with compliance requirements should be subject to significant sanctions;
- Sanctions can range from oral or written warnings to suspension, termination or financial sanctions, as appropriate;
- While each case of noncompliance should be assessed based on its unique factors, sanctions for noncompliance should be applied as uniformly and evenly as possible;
- Discipline may be appropriate where a responsible employee’s failure to detect and report is attributable to his or her negligent or reckless conduct.
- Policies should indicate who is responsible in the organization for determining the appropriate level of discipline in each case (i.e., a responsible employee’s direct manager or senior management);
- The range of permissible disciplinary sanctions for compliance violations should be well-publicized and distributed to all affected employees and contractors; and
- Those sanctions should apply to all employees and contractors, regardless of their title, role or importance to the organization.