Home Health & Hospice Week

Can small providers use the OIG's guidance?

New federal sentencing guidelines put the task of a sound compliance program squarely in the hands of upper level management positions like the chief compliance officer and in-house general counsel. But do health care organization Boards of Directors understand the roles of each?

In a July 1 publication, "An Integrated Approach to Corporate Compliance," the HHS Office of InspectorGeneral and theAmerican Health Lawyers Association address how to keep your compliance bases covered when structuring these key management positions. Whether your CCO and general counsel are one and the same or distributed over several departments, the main way to get accurate and timely compliance information to the top is to have a system of checks and balances that ensures both have equal and independent access to the Board.

Directors should remember these five concepts:

1. Know who reports to the board. Federal sentencing guidelines say it's the CCO; the American BarAssociation, however, states that general counsel should have "primary responsibility" for the implementation of a legal compliance system. Above all, "the board needs to reconcile and coordinate these potentially conflicting views" to ensure that it gets accurate and candid advice, the guidance instructs.

2. Delineate roles for suspected compliance failure. Although a CCO may investigate and coordinate a response, he is not your attorney. When failures put the provider at risk for administrative, civil or criminal liability, general counsel is your best bet.

3. Don't let disagreements wreck your plan. Be aware of how a consensus is reached when there is an argument at the top over how to best handle a compliance problem. Even when practical or operational reasons dictate that the CCO report such matters to the general counsel or chief financial officer, the OIG asserts that standardized reporting to the Board or CEO should be established as well.

4. Understand attorney/client work product privileges. Make sure you know that falling back on this privilege too often in routine auditing and monitoring activities can diminish the credibility of not only the compliance program but the entire organization.

5. Keep communication going with "up the ladder" reporting. Ethics laws could force an attorney to withdraw representation if he's privy to violations within the organization. Consider periodic executive sessions with general counsel to ensure the lines of communication are open.

Numerous small home care providers lack the cadre of compliance officials referenced in the new guidance, notes Burtonsville, MD-based attorney Elizabeth Hogue. Small HHAs, hospices and durable medical equipment suppliers also may have Boards that don't have time to go through the laundry list of compliance questions the guidance sets forth, Hogue worries.

For now, such providers will have to muddle through on their own. "The OIG has always said that the size and resources of organizations should be taken into account with regard to compliance activities," Hogue notes. "I hope that the OIG will now come forward with materials about the role of Boards that are adapted for use by small- and medium-sized providers."

Editor's Note: The guidance is at www.oig.hhs.gov/fraud/docs/complianceguidance/Tab%204E%20Appendx-Final.pdf.