Home Health & Hospice Week

Don't forget your board when planning your compliance educational efforts.

While a corporate compliance plan isn't a Medicare requirement yet, you're courting disaster if you don't have one.

That's because a home care organization's compliance plan performs a number of vital functions, legal experts point out. They include showing authorities you're playing by the rules, instituting self-audits that catch problems before the feds do, and giving you some leverage if you do get slapped with allegations of impropriety (see HCW, Vol. XIX, No. 23, p. 178 for more compliance plan benefits).

And a compliance plan is likely to become a Medicare requirement for you soon enough. The health care reform law passed this year includes a directive for the Centers for Medicare & Medicaid Services to require compliance plans of as-yet-un-specified providers under Medicare conditions of participation. That group will most likely include home care providers, who have been painted with a broad fraud brush in recent government documents, reports, and releases.

When generating or updating your compliance plan, keep these tips from legal experts in mind:

1. Avoid off-the-shelf plans. Your compliance plan should pinpoint your risk areas and spell out your organization's compliance-related policies, procedures, and structure. That means buying an off-the-shelf generic plan won't do you much good.

"It is very important the home health agency create its own plan -- not buy one," believes attorney Liz Pearson with Pearson & Bernard in Edgewood, Ky. "The process is what is important to alert [HHAs] to ... vulnerabilities -- areas in which there is risk of fraud and abuse."

When crafting or revising your plan, it's a good idea to look at guidance such as the HHS Office of Inspector General's compliance guidance, notes attorney Julie Mitchell with Copeland Cook Taylor & Bush in Ridgeland, Miss. But then you need to tailor it to your organization's specifics, Mitchell advises.

2. Involve staff from all areas. If you appoint one person to draw up your whole plan, you're likely to end up with big blind spots.

"It is best to involve staff from all areas of operations" when generating or updating your plan, Pearson offers. That includes "clinical, financial, billing, employment/HR," and so on, she says.

3. Address employee concerns in the plan. One function of your plan is to head off whistleblower lawsuits from within your employee ranks. In addition to being publicly embarrassing, qui tam suits can be extremely costly.

Be sure to include "a strong component for addressing employee concerns," notes attorney Marie Berliner with Lambeth & Berliner in Aus-tin, Texas. That includes a process for fielding em-ployee complaints and assuring staff that management is following up on them. The process should make employees "feel heard," Berliner notes.

4. Don't do everything yourself. Your plan should have a provision specifying when to obtain outside legal counsel, Berliner recommends. There are times you may want the legal protections offered by consulting an outside attorney.

5. Don't leave the job half done. A common problem with compliance plans is failing to specify follow-through actions required when a compliance problem occurs.

"Spell out what to do" in those situations, Berliner instructs. For example, specify how and when an overpayment will be returned if it is discovered.

6. Educate staff. An excellent compliance plan won't do you much good if nobody knows it exists. Home care organizations "should be training staff -- all staff -- in what the plan is and how it operates," advises attorney Ross Lanzafame with Harter Secrest & Emery in Rochester, N.Y.

It's "critically important to educate staff on compliance and the fraud and abuse laws in place," Pearson says.

Don't forget: You will need to retrain staff when the plan is updated for changed legal requirements, Lanzafame adds.

7. Educate your board. Don't overlook training your board on the new compliance plan, too, says attorney Robert Markette Jr. with Gilliland & Markette in Indianapolis.

8. Update your plan. "The most common mistake is that providers fail to properly implement plans and update them regularly," notes Washington, D.C.-based health care attorney Elizabeth Hogue.

A lot has changed since the OIG published its compliance guidance for HHAs in 1998 and hospices and durable medical equipment suppliers in 1999. But many providers haven't updated their plans since then.

Being in compliance requires "annual review and revisions to the plan," Markette says.