Practical Reasons to Develop and Maintain Fraud and Abuse Compliance Programs

Providers may have heard or read about the importance of Fraud and Abuse Compliance Programs in their organizations. Despite the wealth of available information about Compliance Programs, many providers continue to express uncertainty about their value. The practical value of Compliance Programs is now clear.

Providers may avoid indictment and enforcement action, including Corporate Integrity Agreements (CIAs), if they are able to show that they have a commitment to Compliance Programs. The OIG often requires CIA’s that include a process for stringent monitoring by the OIG on a continuous basis. These monitoring activities can be extremely burdensome to providers in terms of both time and money. Providers with valid Compliance Programs may not be asked to develop and implement CIA’s.

Representatives of the U.S. Department of Justice are now asking for specific information about Compliance Programs, including how much money has been spent on them. Therefore, now is the time to develop or update Programs!

Here are some FAQs about Compliance Programs:

Why should we have a Fraud and Abuse Compliance Program?

First, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services has clearly stated that, consistent with the Affordable Care Act (ACA) all providers must have current Compliance Programs that are fully implemented.

Technically speaking, the Federal Sentencing Guidelines make it clear that establishment and implementation of Compliance Programs is considered to be a mitigating factor. That is, if accusations of criminal conduct are made, the consequences may be substantially less severe as a result of a properly implemented Compliance Program.

In addition, providers with Compliance Programs are more likely to avoid fraud and abuse. This is because Programs routinely establish an obligation on the part of every employee to report possible instances of fraud and abuse. This means that providers get the “first crack” to address areas of non-compliance!

Compliance Programs may also help to prevent qui tam or so-called “whistleblower” lawsuits by private individuals, rather than by government enforcers, who believe that they have identified instances of fraud and abuse. There are significant incentives to bring these legal actions since whistleblowers receive a share of monies recovered as a result of their efforts. Some whistleblowers have received millions of dollars. Compliance Programs make it clear that employees have an obligation to bring any potential fraud and abuse issues to the attention of their employers first.

In addition, the federal Affordable Care Act (ACA) requires providers to have Compliance Programs. In short, it’s the law!

Finally, the Deficit Reduction Act (DRA) requires providers who receive more than $5 million in monies from state Medicaid Programs per year to implement policies and procedures, provide education to employees and put information in their employee handbooks about fraud and abuse compliance. These requirements can be met through implementation of Fraud and Abuse Compliance Programs.

We don’t receive reimbursement from the Medicare or Medicaid Programs. Do we still need a Compliance Program?

Statutes and regulations governing fraud and abuse also apply to providers who receive payments from any federal and state healthcare programs, including Medicaid, Medicaid waiver and other federal and state health care programs, such as Tricare. Many private insurers have followed the federal government’s lead in terms of fraud and abuse enforcement, so private duty providers must have Compliance Programs, too.

We hear that the OIG of the U.S. Department for Health and Human Services has provided guidance for various segments of the healthcare industry regarding Compliance Programs. Specifically, the OIG has already published guidance for home health agencies, hospices and home medical equipment (HME) companies. Should we just use the model guidance that is applicable to us?

The answer is “no!” Guidance from the OIG is not a model Compliance Program. Guidance from the OIG consists of general guidelines and does not constitute a valid Compliance Program. In addition, the OIG has made it clear that Programs must be customized for each organization.

We have all sorts of policies and procedures in our organization. Why do we need something else called a Compliance Program?

Compliance Programs are specific types of documents that routinely address issues that providers do not usually cover in internal policies and procedures. In addition, providers may not gain benefits under the Federal Sentencing Guidelines, described in paragraph one above, if there is no formal document called a Compliance Program.

We just spent a lot of money to become accredited or reaccredited. Doesn’t certification mean that we are in compliance?

On the contrary, Compliance Programs appropriately address potential fraud and abuse issues. They also include mechanisms for helping to ensure compliance, such as processes for identification and correction of potential problems that are not addressed during the certification process. In other words, organizations may be accredited, but fail to meet applicable compliance standards for fraud and abuse.

Now is the time for all providers to recognize and act upon the need to establish and maintain Compliance Programs. “Working on it” is no longer good enough.

©2020 Elizabeth E. Hogue, Esq. All rights reserved.

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