By Jason B. Martin
Special to the Legal
The Department of Health and Human Services’ Office of Inspector General has developed and published voluntary compliance program guidance focused on several areas and aspects of the health care industry. Over the years, the OIG has developed specific compliance program guidance related to claims submissions for hospitals, hospices, individual and small group physician practices, nursing facilities, ambulance suppliers, third-party medical billing companies, and the list goes on. The OIG believes that the development and issuance of voluntary compliance program guidance will serve as a positive step toward assisting health care providers and others in the health care industry in preventing the submission of erroneous claims or engaging in unlawful conduct involving the federal health care programs, and knowledgeable health care attorneys agree.
Health care providers and related entities are responsible for ensuring accurate claims submissions for payment under federal health care programs such as Medicare and private insurance. The Centers for Medicare and Medicaid Services, through many of its contractors, including recovery audit contractors (RACs) and private insurers, routinely audit claims after payment to determine whether the claims were correctly coded and supported by the documentation. If claims are deemed denied retroactively, then the health care provider may be responsible for paying back previously paid claims or, in really bad cases, face charges for fraud prosecution under federal or state statutes. In 2011, RACs alone collected $939.3 million in improper Medicare fee-for-service payments. Add to that amount recoveries from other CMS contractors as well as private payers and the numbers are staggering.
In order to avoid these audits and the consequences that often result, providers are proactively implementing compliance programs within their practice, often with the assistance of health care attorneys and other health care experts. A voluntary compliance program is a written set of guidelines, protocols and standards that should be drafted by an experienced health care attorney. The OIG suggests that a compliance program should require the health care provider or related entity to include the following seven basic components:
- Conduct internal monitoring and auditing through the performance of periodic audits.
- Implement compliance practice standards through the development of written standards and procedures.
- Designate a compliance officer or contact(s) to monitor compliance efforts and enforce practice standards.
- Conduct appropriate training and education on practice standards and procedures.
- Respond appropriately to detected violations through the investigation of allegations and the disclosure of incidents to appropriate government entities.
- Develop open lines of communication, such as discussions at staff meetings regarding how to avoid erroneous or fraudulent conduct and community bulletin boards, to keep practicing employees updated regarding compliance activities.
- Enforce disciplinary standards.
A voluntary compliance program should be specific, comprehensive and narrowly tailored for each type of health care provider. Identifying and implementing compliance practice standards is perhaps the most useful function of the compliance program for the provider. The provider must consider the types of fraud- and abuse-related topics that need to be addressed, including risk areas that relate to: (1) coding and billing; (2) reasonable and necessary services; (3) documentation; and (4) improper inducements, kickbacks and self-referrals. These risk areas can be further refined in a sub-level risk category that may include specific guidance for proper use of coding modifiers, documenting medically necessary care, documentation to support a specific level of service, using the correct level of codes, etc. For example, a voluntary compliance program for a chiropractic office should include guidance for coding and documenting specific services related to chiropractic, which often includes evaluation and management services, spinal manipulation services and therapies and modalities. A comprehensive compliance program should consider laws, regulations and guidelines that may include current procedural terminology medical code sets, CMS guidelines, local coverage determinations and individual private payer guidelines.
The health care provider or entity should develop procedures for internal monitoring and auditing with the assistance of a health care attorney. All providers that submit claims for reimbursement should perform self-audits of the documentation and coding to ensure accuracy and avoid the risk areas already identified. In addition to the useful guidance of an experienced health care attorney, there are experts who have certifications in coding and health care compliance who can perform a baseline audit by reviewing medical records and codes to determine whether the provider is complying with the laws, regulations and guidelines. If problems are identified, the provider or entity can take immediate corrective action so as to avoid a CMS or private payer audit in the future or mitigate the harm that may result if a post-payment audit is conducted. Providers should then routinely perform self-audits.
Generally, a voluntary compliance program assumes that a health care provider can use internal controls to more efficiently monitor adherence to applicable statutes, regulations and health care program requirements. This will, in turn, strengthen the efforts of health care providers to prevent and reduce improper conduct. Health care providers who implement a voluntary health care reimbursement compliance program can achieve a number of benefits that include preventing and reducing improper conduct, streamlining business operations, reducing the chances that an audit will be conducted by federal agencies or private payers, minimizing billing mistakes, ensuring accurate claims submissions, and avoiding conflicts with self-referral and anti-kickback laws. The OIG so aptly stated that physicians should view compliance programs as analogous to practicing preventive medicine.
Another important benefit arising from the incorporation of a voluntary compliance program is that a company convicted of a federal offense is eligible for a reduced sentence under the Federal Sentencing Guidelines if it has an effective compliance and ethics program and the offense occurred despite the program. Under the U.S. Sentencing Guidelines Manual, to have an effective compliance and ethics program, an organization shall exercise due diligence to prevent and detect criminal conduct and promote a culture that encourages ethical conduct and a commitment to compliance with the law. Such compliance and ethics programs shall be reasonably designed, implemented and enforced so that the program is generally effective in preventing and detecting criminal conduct.
Health care attorneys who represent providers or related entities should encourage their clients to develop and implement a voluntary compliance program for their practice.
Jason B. Martin is an experienced health care attorney and the founder of The Martin Law Firm, which represents health care providers for matters involving health care compliance, Medicare audits and appeals, insurance post-payment reviews, multidisciplinary practices, and general business matters. Visit www.jbmartinlaw.com to learn more about the firm’s health law practice.