The government has made you an offer you can’t refuse. Until now, the government has expected you to run your practice legally but never told you how. On June 7, 2000, the Office of the Inspector General (OIG), issued proposed compliance guidelines for individual and small group practices. They apply to chiropractors, medical and osteopathic doctors, doctors of dental medicine or dental surgery, podiatrists and optometrists.
This is both good news and bad news. Although you are not required to implement a Compliance Program at your practice, failure to have such a program may result in greater liability if you are found in violation of federal laws, rules and regulations. For instance, what might have been considered a civil violation if you had a Compliance Program may be construed as a criminal act if you do not have such a program. By the same token, if you do have a compliance program in place but you are not implementing steps to follow it, you might be subject to greater penalties than if you had no program at all.
What’s The Solution?
Make sure you have an effective Compliance Program in place and that your practice is following it. In order to be effective, a program must be one that is suited to your particular practice; that will be followed by the people in your office; and one that you can live with. Just buying an off-the-shelf “Compliance Plan” and letting it collect dust on your bookshelf will create more problems than if you had no program at all.
Why Create A Compliance Program?
The government has stated that the maintenance of an effective Compliance Program is the single most mitigating factor in reducing the severity of the sanction that may be imposed against a doctor. The government wants to see you using one even though you can’t be forced you to do so.
What Is A Corporate Compliance Program?
Doctors should view the implementation of a Compliance Program into their practice like a form of preventive care that protects against fraudulent or erroneous conduct. Compliance Programs are internal controls and procedures that promote adherence to requirements of federal health-care programs and private insurance programs, somewhat like a protocol that helps you run your practice legally. You probably have certain policies and procedures in effect in your office already. Some policies are written; some are unwritten. Review these policies and get them all down in written form. Review them to make certain they are lawful. I have seen some personnel policies that violate rights that are guaranteed by the Bill of Rights and the Constitution of the United States. Make sure your doctors and employees are made aware of any changes and the reasons for the changes.
Do You Need A Compliance Program?
To determine whether you need a Compliance Program, you should answer the following questions:
- Are you currently experiencing regulatory problems?
- Have you previously been the target of an audit or investigation?
- Do you understand your regulatory obligations?
- Do the members in your practice disagree about the importance of compliance?
- Do you have difficulty hiring and retaining good administrative and billing staff?
- Is your staff encouraged to code and bill aggressively?
- Is the practice expanding into areas with which you have little prior experience?
- Are audits and investigations common in your geographic area?
- Do you offer a very broad range of services relative to the size of your practice?
- Do you have business relationships with other health-care providers?
If the answer is “yes” to any of these questions, you should give serious thought to implementing a Compliance Program.
If any of the following has ever happened in your practice, make sure it’s no longer occurring and implement a Compliance Program immediately to ensure it doesn’t happen again:
- Billing for items or services not provided or documented.
- Providing or billing for medically unnecessary services.
- Duplicate billing.
- Employment of excluded persons.
- Billing for items and services not ordered.
- Billing for inadequate or substandard care.
- Falsified documentation, including false dates.
- Unbundling items or supplies.
- Compensation tied to incentives for items or services ordered or revenue generated.
- Inadequate management and oversight of contracted services.
- Routine waivers of co-payments and deductibles.
- Improper alterations of medical records.
- Improper patient solicitation.
- Manipulation of patient diagnosis.
- False cost reports.
- Failing to maintain appropriate documentation.
- Patient dumping/abandonment.
- Provider data integrity.
- Misuse of provider/supplier numbers.
- Joint ventures with referral sources.
- Failure to properly use billing modifiers.
- Stark Law violations.
- Improper discounts/professional courtesy discounts.
- Failure to refund overpayments.
The Effective Compliance Program
An effective Compliance Program contains the following elements:
- Establishment of compliance standards through the development of a code of conduct and written policies and procedures.
- Assignment of compliance monitoring efforts to a designated compliance officer or contact.
- Comprehensive training and education on practice ethics and policies and procedures.
- Internal monitoring and auditing focused on high-risk billing and coding issues through the performance of periodic audits.
- Development of accessible lines of communication, such as discussions at staff meetings regarding fraudulent or erroneous conduct issues and community bulletin boards, to keep practice employees updated regarding compliance activities.
- Enforcement of disciplinary standards by making clear or ensuring employees are aware that compliance is treated seriously and that violations will be dealt with consistently and uniformly.
- Appropriate response to detected violations through the investigation of allegations and the disclosure of incidents to appropriate government entities.
The OIG recognizes that it may be difficult for small practices to implement all the requirements immediately but suggests that smaller practices should consider addressing each of the elements in a manner that best suits that particular practice. At the very least, identify risk areas associated with coding and billing.
Make sure your written policies and procedures concerning coding reflect current reimbursement principles as described in applicable statutes, regulations, and federal, state or private payor health-care program requirements. Written policies and procedures must require that coding and billing be based on medical record documentation. Particular attention should be paid to issues of appropriate diagnosis codes and individual Medicare Part B claims (including documentation guidelines for evaluation and management services). Institute a policy that all rejected claims pertaining to diagnosis and procedure codes be reviewed by the coder. This review will serve to reduce similar errors in the future.
Implementing A Compliance Program
Before you decide to introduce a Compliance Program into your practice, you must first be certain you are willing to put the necessary resources into the development and sustained operation of a Compliance Program. You must also be sure that if your Compliance Program uncovers improprieties, that you would be willing to deal with those issues. Before rushing to answer, remember that this could mean firing a long-standing and productive employee; spending a great deal of money to train your staff to do things correctly; or making self-disclosure of any wrong-doing to the government.
These aren’t easy situations and they should not be treated as such. Undertaking a Compliance Program is a serious commitment, both professionally and economically. The upside is being able to rest easy at night. Don’t wait until the final regulations have been issued before you start thinking about what you need to do to get your Compliance Program started.
The second installment of this article, which will appear in the November issue, will provide an overview of the specific areas that need to be addressed by a small practice in order to comply with the government’s guidelines.
Ms. Green has been a practicing attorney since 1977. She is admitted to the practice of law in New York and Florida. She has formed numerous integrated practices throughout the country and acts as counsel to a number of multi-discipline practice consulting firms. If you have questions regarding compliance or any other legal health-care issues, please fax your questions to 914-666-9266; Law Office of Deborah A. Green, 16 Caren Court, Mt. Kisco, NY 10549; phone: 914-666-9264; firstname.lastname@example.org. Questions that are of interest to the broadest audience will be answered.
Because this article is being presented to you by an attorney, it would not be complete without a legal disclaimer. This article is provided subject to and governed expressly by the terms of this disclaimer. This article is provided for educational purposes only. The accuracy or timeliness of the information presented herein is not warranted. The information presented herein is not intended to be advice as to a specific fact pattern with which you may be presented. Accordingly, please note that the information contained herein is not being presented as legal advice with respect to any matter and that no attorney-client relationship is hereby established.