From Elizabeth Hogue, Esq - Fraud and Abuse Compliance Plans

[Jane Moore]

Fraud and Abuse Compliance Plans:  It's a Different Game Now!  - Elizabeth Hogue, Esq

 

In 1997, the Inspector General of the U.S. Department of Health and Human Services (HHS) announced that if providers had compliance programs, it might help them to avoid permissive exclusion from federal and state health care programs. At that time, the Office of Inspector General (OIG) of HHS was attempting to encourage widespread adoption of compliance programs.    Now, according to the OIG, the game has changed! It's not enough to have a compliance program; it must be operated effectively.    Needless to say, if providers don't have compliance programs at all, they are definitely "behind the eight ball." And if providers have compliance programs, but haven't effectively implemented them, the OIG has made it clear that they are probably no better off than if they didn't have compliance programs at all.    Guidance issued by the OIG in 2016 clarifies that the OIG will use a spectrum of risk to evaluate cases along a continuum to determine what action should be taken against providers. Factors that the OIG will use to determine risk include: Nature and circumstances of the conduct involved Conduct during the investigation Any significant ameliorative efforts History of compliance In evaluating the nature and circumstances of the conduct involved, the OIG will consider the following: Adverse impact on individuals Financial loss and circumstances of the allegations, such as length of time the conduct persisted, existence of patterns of misconduct, etc. Leadership role of individual defendants and/or corporate executives in the alleged misconduct History of prior fraudulent conduct With regard to conduct during investigations, the OIG now expects prompt response to subpoenas and does not take into account whether it is possible for providers to engage in the same misconduct again. The OIG will instead evaluate whether providers cooperated with the investigation. Better yet, the OIG looks favorably on the conduct of internal investigations prior to becoming aware of investigations by the government. Providers may receive additional "credit" for disclosing the results of investigations with adverse results to the government.    In terms of significant ameliorative efforts, the OIG will evaluate what compliance activities, process changes or controls providers have put in place over time. The OIG will also consider whether appropriate disciplinary action was taken against individuals responsible for the misconduct and whether providers devoted significantly more resources to compliance activities following identification of misconduct.    The final factor considered by the OIG, history of prior fraudulent conduct, goes to the question of whether providers are repeat offenders. Needless to say, providers who have previously self-reported or been "busted" are in serious trouble. The OIG's point of view is that they should know better!    The "train" for more effective compliance efforts is leaving the station! Get on board!       ©2017 Elizabeth E. Hogue, Esq.  All rights reserved.   No portion of this material may be reproduced in any form without the advance written permission of the author.

 

 

Jane Moore

CEO

Missouri Hospice & Palliative Care Assn.

600 Monroe Street

Suite 300

Jefferson City, MO  65101

Phone 573-634-5514

Fax 573-635-0659

Ja...@mohospice.org

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