Now that the calendar has flipped to a new year, millions of Americans have made resolutions to better themselves in the year ahead. New Year’s resolutions are not a modern phenomenon and actually date back 4,000 years ago to the Babylonian empire, when people would mark the start of the agrarian year by making sacrifices to their gods and promising to repay debts and return borrowed property.[1] In so doing, the Babylonians would request bountiful harvests, good fortunes and military victories in the year ahead.
The desire to start a new year with a commitment to self-improvement is a worldwide phenomenon and has continued throughout the centuries. According to researchers, today about 60% of Americans admit to making New Year’s resolutions, with some of the most popular resolutions relating to diet, exercise, reducing spending, and smoking cessation.[2] So as we start a new year and a new decade, there are certainly some resolutions that long-term care providers can adopt that will strengthen their internal controls, reduce their risks, and set themselves up for success and a fraud-free year in 2020. So consider resolving to do one or more of the following:
1.Time Is On Your Side (yes, it is). Review all contracts with other healthcare providers and suppliers to ensure that the contract term is not expired. For arrangements such as medical director contracts, payments to physicians even for services legitimately provided under expired contracts can create significant problems under both the Anti-Kickback Statute and the Stark Law. The safe harbors permitting such arrangements require the existence of a valid, signed contract. It should also be noted that with the Stark Law, even unintentional or accidental violations are actionable because there is no requirement of an “intentional” violation of the law. If you do not keep a master list of your contracts with details concerning termination dates, compensation terms, etc., consider adopting this practice and linking it to your calendar to provide appropriate reminders. Also, consider adopting self-renewing contracts to avoid the accidental expiration problem altogether.
2.Check Yourself So You Don’t Wreck Yourself. The beginning of the year is a good time to conduct an enterprisewide check of all employees and contractors against both the Office of Inspector General’s (“OIG”) List of Excluded Individuals/Entities,[3] as well as the Government Service Administration’s Excluded Parties List/System for Award Management procurement database.[4] Obviously, all new employees should be checked before hire and all new contractors should be checked upon initial engagement, and best practice is that all staff and contractors should be rechecked every month. However, given the busy holiday season and many folks having taken extended vacations, this can be an easy administrative task that falls through the cracks. While many long-term care providers perform this function manually, larger entities may consider utilizing third-party vendors to perform these services, which usually requires only providing an electronic file of employee and contractor names, and can be contracted at a fairly reasonable rate.
3.Ace Your Test. Test your incident-reporting hotlines. One of the hallmarks of an effective compliance program is implementing a disclosure program that allows employees to anonymously report concerns of fraud and abuse.
At the outset, if your facility does not currently have a disclosure program, the best risk mitigation strategy you could implement would be to adopt one as soon as possible — and to promote it heartily. According to the Department of Justice, 78% of the $2.5 billion recovered for healthcare fraud in FY2018 was the result of cases brought by whistleblowers under the False Claims Act.[5] In light of this significant trend, long-term care facilities would be well-served to implement mechanisms for employees to make reports of wrongdoing to the provider instead of going to the government.
Assuming that your facility has taken the smart step of instituting a compliance hotline or similar reporting mechanism, it is essential that you periodically test the process to ensure that it is accessible and is appropriately relaying information to those persons who can investigate and follow-up. In a Corporate Integrity Agreement with which I was involved years ago, the OIG actually tested the provider’s hotline by making a call and requesting that the provider call them back. There will always be instances where voicemail systems fail or email addresses are incorrectly entered or the individuals tasked with responding change. These sorts of administrative check-ups ensure that your most critical risk mitigation control is operating effectively and that the aggrieved employee who is on the verge of contacting the government feels like his/her concerns have been heard and acted upon.
4.Taking the Government’s Pulse. For many years, the OIG has published periodic work plans identifying their audit priorities, which were originally annual documents but are now updated monthly. Within these work plans, the government discusses by healthcare industry segment all of the various pro-active audits and reviews that they are planning and conducting so long-term care providers are able to clearly identify the exact issues and risks that the government considers top-of-mind for their area. For example, recent long-term care related reviews identified by the OIG in their work plan include: (1) the appropriateness of billings for skilled level of care by skilled nursing facilities (“SNF”) (including whether the skilled level of care is appropriately certified by a physician, the appropriateness of the condition treated at the SNF as a basis for skilled level care, whether daily skilled care was required, and whether the services delivered were reasonable and necessary for the treatment of a beneficiary’s illness or injury); (2) whether skilled nursing facilities are appropriately including ambulance costs in their consolidated billings to Medicare; and (3) whether long-term care providers are billing the appropriate therapy levels for their residents (including whether the facility’s documentation supports that the therapy requirements for the patient’s resource utilization group are reasonable and necessary, and whether such therapy services were actually provided). By knowing what the government considers high risk, it allows you to then focus your training and your internal audit processes to address the same issues and keep your provider number from being in the government’s cross-hairs. The OIG work plans are accessible here.
5.Breaking News. Another expectation of an effective compliance program is one in which policies and procedures and training materials are routinely reviewed and updated to ensure that they contain accurate and current information. If your facility has a compliance plan, you should consider reviewing these materials at the start of each year to ensure they are still accurate and comprehensive (and if you currently lack a compliance plan, you should consider consulting legal counsel and adopt a plan as soon as possible). For example, have the members of your Compliance Committee changed and does this need to be updated? Has your facility added new business lines or offerings that warrant inclusion in your discussion of risk areas? Have there been new laws implemented in the prior year that necessitate inclusion in the compliance plan now? The same considerations affect your other compliance-related policies in procedures.For example, when CMS implemented the Affordable Care Act’s requirement of reporting and returning overpayments within 60 days of discovery[6], it necessarily created a cascade of process changes for healthcare providers that should have been memorialized and formalized in organizations’ policies. Lastly, to be effective, your compliance training documents should reflect the most up-to-date provisions of law, and should be periodically refreshed to ensure that the audience is engaged. In such circumstances, a long-term care facility should consider outsourcing the review of the compliance plan, key compliance-related policies and procedures, and compliance training to outside legal counsel. Your attorney can provide a good housekeeping seal of approval for your materials which will give you not only peace-of-mind but can serve as a valuable bargaining chip in the event of a governmental inquiry. Having engaged an independent review of your compliance program and its key materials evidences a strong commitment to integrity and cuts against any charge of institutional intent or recklessness. In the long run, this sort of diligence is a wise investment.
Unfortunately, most Americans will quickly abandon their New Year’s resolutions. Researchers have concluded that only 8% of people achieve their new year goals, and 80% fail to keep their resolutions. The compliance and anti-fraud resolutions outlined above hopefully can help shape a successful and fraud-free 2020 and beyond for your facility.
Jeffrey D. Jeter is special counsel in
the Corporate Practice Group at Jones Walker LLP.
[1] A.L., “The Origin of New Year’s Resolutions,” The Economist, Jan. 5, 2018, https://www.economist.com/the-economist-explains/2018/01/05/the-origin-of-new-years-resolutions
[2] Economy, Peter, “10 Top New Year’s Resolutions for Success and Happiness in 2019,” Inc., Jan. 01, 2019, https://www.inc.com/peter-economy/10-top-new-years-resolutions-for-success-happiness-in-2019.html
[3] https://exclusions.oig.hhs.gov/
[4] https://www.sam.gov/SAM/
[5] https://www.justice.gov/opa/pr/justice-department-recovers-over-28-billion-false-claims-act-cases-fiscal-year-2018
[6] See 42 C.F.R. §§401, 405, 81 FR 7653, https://www.federalregister.gov/documents/2016/02/12/2016-02789/medicare-program-reporting-and-returning-of-overpayments
