Home Health & Hospice Week

Are you putting yourself at risk?

Your compliance program may not save you in an investigation, but the lack of it could hang you for sure. Still, many providers continue to refuse to put this at the top of their to-do lists.

In order for providers “to reap the mitigation benefits of having a compliance program, for instance, receive substantive reductions in fines for violations of criminal law, the program must incorporate all of the elements from the U.S. Federal Sentencing Guidelines,” says attorney Sarah Warden of the Florida Health Law Center’s Davie office, “Those elements provide what is minimally necessary for an organization to use due diligence and to promote a culture that encourages ethical conduct and legal compliance.”

Background: Last April, the HHS Office of Inspector General released an amended policy statement that set forth new criteria for its determination of permissive exclusion from federal and state healthcare programs. The new non-binding criteria suggest that implementing an effective compliance program might not be enough to escape exclusion for fraudulent activity, and that the “circumstances of conduct” as well as the provider’s conduct during the investigation will weigh heavily on the OIG’s final decision whether to exclude or precede with a Corporate Integrity Agreement.

“Simply having an effective compliance program is a neutral factor that will not affect the OIG’s risk determination of whether other remedies besides exclusion adequately protect federal healthcare programs and their beneficiaries,” explains Warden. “But, an organization’s lack of an effective compliance program indicates a higher risk on the risk spectrum announced in the updated policy statement, and the OIG will pursue exclusion for organizations at the highest risk.”

Make Compliance A Priority

In the most serious fraud cases, the fault is due to the negligence and misconduct of the provider. Often, the deficiency can be attributed to uneducated staff, outdated software, and ineffective compliance agreements.

“Exclusion from federal healthcare programs is a virtual death sentence for a provider’s business and a criminal conviction under the federal or state fraud and abuse laws requires mandatory exclusion by the OIG instead of permissive exclusion,” says Warden. Fortunately, there is one step your agency can take to avoid exclusions that will lower your risk factor on the OIG “risk spectrum.”

Cooperation key: Some providers violate the laws because they and their staffers misunderstand the rules or aren’t truly committed to a compliance plan, while others refuse to remedy known problems and communicate with legal counsel.

“Cooperation and self-disclosure prior to becoming aware of the government’s investigation are factors identified in the OIG’s updated policy statement as being at the low end of the compliance risk spectrum for the OIG’s permissive exclusion determination,” says Warden. A provider’s willingness to be open may lead to a more favorable CIA or other OIG resolution versus outright exclusion.

Note: For more information on the OIG’s policy statement on permissive exclusion, visit http://oig.hhs.gov/exclusions/files/1128b7exclusioncriteria.pdf.