Use compliance guidelines as way to improve agency
Focus on processes in plan development
By now, hospices should be aware of the new compliance program guidelines recently released by the Office of Inspector General (OIG) to aid hospice from running to fraud and abuse problems. Whether hospices choose to follow the voluntary guidelines remains to be seen, but one expert advises hospices to take OIG’s advice and use it to their advantages.
"I like to approach compliance programs from a manager’s perspective," said John J. Mahoney, principal of the Summit Business Group, an Annandale, VA-based consulting firm, during a session of the National Association for Home Care’s 18th Annual Meeting held in San Diego in October. "I prefer to use compliance program planning as a management tool, as opposed to strictly a legal defense tool."
The cost of abuse
Last summer, the OIG released its final guidelines outlining its concerns regarding fraud and abuse and offered detailed advice on how to approach implementing a compliance program. Specifically, OIG is concerned with hospices filing false claims — claims it knows are false, or a pattern of claims submissions that the provider should have know are false.
The OIG also showed concern over the anti-kickback statute, warning hospices of financial relationships with referral sources that foster unfair referral practices, such as paying above-market rates for nursing home services in exchange for referrals.
The consequence of failing to guard against those abuses can cost hospices $5,000 to $10,000 per claim, plus treble damages and possible exclusion from the Medicare program.
But a compliance program is supposed to prevent all that by creating a process and establishing a commitment within the organization to root out abuses and eliminate potential abuse situations.
"Establishing a compliance program is strictly voluntary," Mahoney said. "Hospices are not required to establish a corporate compliance plan. I think it’s good business, good management, and good in terms of protecting yourself."
A model, not guidance
With that in mind, how hospices begin putting together a compliance program can be as varied as the number of hospices that dot the country. To begin, Mahoney said, hospices should realize the OIG guidelines are not a blueprint for compliance program.
"The guidance is not a model, it’s a guidance," he said. "You can develop your program to fit the guidance. You don’t have to do it in lock-step with the guidance. You can create your own program to fit your own set of circumstances."
With that said, however, there are basic elements that must be addressed in each compliance program. Similar to other guidance already issued by the OIG for clinical laboratories, hospitals, home health agencies, third-party medical billing companies, and durable medical equipment suppliers, the hospice guidance is based on the following seven elements:
1. Implementation of written policies, procedures, and standards of conduct.
2. Designation of a compliance officer.
3. Development of training and education programs.
4. Creation of a hotline or other measures for receiving complaints and procedures for protecting callers from retaliation.
5. Performance of internal audits to monitor compliance.
6. Enforcement of standards through well-publicized disciplinary directives.
7. Prompt corrective action of detected offenses.
Those elements, according to OIG, should represent the basic structure of a hospice’s compliance program. In its proposed guidelines, OIG offers a detailed explanation of each element and how they should be implemented.
Looking at a compliance program in greater detail reveals that a hospice plan will include a collection of written standards, policies, and procedures. More importantly, Mahoney said, a compliance program requires a process — a process of training, communication, monitoring, evaluation, and revision.
The right mix
As hospices contemplate their own compliance program beyond the basic elements described above, Mahoney said they must consider the following:
• Commitment. The easiest way to relegate a compliance program to nothing more than a collection of token documents is to create the program without commitment from the top on down. That commitment includes top administrators allowing designated compliance officers the authority to pursue reports of misconduct.
"You need commitment from your top people, including the board [of directors]." Mahoney said.
• Compliance officer. Hospices must appoint someone who is in charge of ensuring the company’s plan is being followed and who can lead internal investigations of misconduct. Mahoney and other experts say hospices do not necessarily have to establish a full-time equivalent position. The position of compliance officer can be added to the duties of an existing position.
"There has to be direction from a qualified person, even if it is a part-time position," Mahoney advised. "The person that fills it must be qualified."
• Reccurrence of misconduct. Compliance programs should include procedures to avoid making the same mistakes, such as ongoing training for workers to make them aware trouble areas and ways to avoid not only misconduct, but also the appearance of it.
"If you make the same mistakes over and over again, they [investigators] will begin to doubt your commitment to your compliance program," he said.
For additional direction compliance program planning, Mahoney directed hospice leaders to the risk areas the OIG described in its guidance. While there are a number of areas listed in the guidance, Mahoney focused on the following:
— Adhering to conditions of participation (COPs). Use current COPs as the backbone of your compliance program. While it is goes without saying that hospices should follow COPs, having them written down and part of the organization’s entire effort to combat fraud and abuse will a long way to showing righteous intentions. Including COPs also give workers an opportunity to become more familiar with them and create greater awareness of eligibility and payment issues.
— Failing to obtain certification from attending physician regarding patient’s prognosis. For most hospices, this is largely a documentation issue. To help, hospices can incorporate local medical review policies (LMRPs) to help guide physicians in making a proper referral. The LMRPs can be cited in documentation to show the reasoning behind the referral and prognosis.
"Incorporate LMRPs, but understand their limitations," Mahoney said. "Used appropriately, it can be a way to get people into your organization."
More signposts
— Failing to adopt an individualized plan of care before the start of care. "This goes to the involvement of the interdisciplinary team," Mahoney said. "It’s [plan of care] a document that someone can go to look at and determine what the expectations are for this patient, the services being provided, and interventions being used."
— Marketing services that mislead public. Marketing should reflect the whole story of hospice care what services are available, prognosis, and services the patient may have to waive, Mahoney said. "Look at how you pay your marketing personnel," he added. "Don’t use a payment methodology that inappropriately provides incentive to put people into hospice programs that are ineligible."
— Influencing patients to revoke their hospice benefit. "If you are trying to influence a patient to revoke his or her benefit simply because it is in your financial best interest, that is an important risk area you need to address," he said.
— Anti-kickback statute. The OIG paid particular attention to the relationship between hospices and nursing homes. "While hospice care in the nursing home is needed, we also know that hospice care in the nursing home is a delicate act."
Mahoney pointed out that the two organizations have different sets of regulations, and making them work together requires a tremendous effort. Pay attention payment arrangements made with nursing homes. Compliance programs should direct hospice officials from striking deals with nursing homes that call for the hospice to pay more for services than others, or be paid less for services provided than others.
"Pay the nursing home what the nursing home would have been paid for that patient," Mahoney advised. "If you have a contract with a nursing home that calls for you to pay more, you have to show why, including the services they would be providing to you."
Provide more services
— Maintain patient management and level of service. Compliance policies should clearly state that the hospice will maintain management of the patient and that essential hospice services will be provided by the hospice and not left up the nursing home.
"It is easy to think of the nursing facility as an incredibly capable family so you can reduce the services you normally provide," Mahoney said. "You have to approach it from the perspective that you need to be providing more services. You cannot reduce the services you are providing to these patients in any manner."
While a hospice patient living in a nursing home can be managed by both the nursing home and hospice, the hospice program has the priority for establishing professional management.
"This goes to coordinating your plans of care," he said. "You need to show evidence of the nursing home’s plan of care within your plan of care and vice versa. The nursing home plan of care should reflect that this is a hospice patient, that there are hospice services being provided."
It is important to note that if a hospice goes through the exercise of creating a program that follows the above criteria, but is absent of commitment to follow through on the polices and procedures its plan had outlined, federal investigators will doubt the organization’s sincerity regarding fraud and abuse avoidance.
"If you create a form and put it on a shelf, you’re doing more harm than good," he said.
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