The proverb, "The night is always darkest just before the dawn," meaning there is hope even in the worst of circumstances, is ringing true as we continue to trudge along this COVID-19 pandemic. Life is a giant lesson; we come into this world knowing nothing, and we sometimes leave it forgetting all that we acquired along the way. Emergencies, disasters, epidemics, and pandemics all mean that something bad is happening or has already happened. To combat or deal with it, we must be resourceful, but more importantly, we must find ways to collaborate and cooperate with each other. COVID-19 has brought out the best (the dedicated men and women on the front lines in healthcare) and worst in people (e.g., https://www.justice.gov/usao-nj/pr/georgia-man-arrested-orchestrating-scheme-defraud-health-care-benefit-programs-related) and has shown us that even our government is vulnerable yet can come together when necessary as a unified body for the people as they did with the passage of the recent stimulus package (CARES) with a 96-0 vote.
Throughout this pandemic, I have learned new things or pulled from skills acquired during my 20s to aid not only my family who looks to me in times of difficulty but also clients who depend on me to bring a sense of calm and direction to their organization and to ensure they are doing the right thing and not making decisions in the wake of the moment that could have long-term, negative repercussions. I have also strengthened relationships with colleagues, my firm's partners, and members of the best professional organization someone can be a part of: The National Society of Certified Healthcare Business Consultants, or NSCHBC (https://nschbc.org/home). It is these small things that have allowed me to stay steady and full-speed ahead. I have taken time to read more than I ever have before, and faster. I have tried to find humor when appropriate and remain dignified at all times, regardless of a situation someone has put me in. I find solace in many words, including those of George H. W. Bush, "I do not mistrust the future; I do not fear what is ahead. For our problems are large, but our heart is larger." Regardless of your political affiliation, those words should ring true for all in times of crisis; I just wish they remained with us when times are good.
In a crisis, emergency, or pandemic, which happen from time to time like the one the world is experiencing right now with COVID-19, it is vital that you have preparedness, or what is better referred to as a Contingency Plan, in place. The question is, how do you prepare one, and how complex should it be? This article is structured to provide you with the steps necessary and what they consist of, but keep in mind that once a crisis hits, it's too late to start planning-as many are figuring out right now. However, we can take the lessons learned during a crisis and use those in the future to keep from making the same mistake(s) and being better prepared to deal with what comes our way.
To the bad news first (as if the COVID-19 pandemic wasn't enough), at the conclusion of this pandemic and within a year, insurance companies are going to engage in audits related to services billed throughout the crisis. This means, as with all documentation, it must be complete and legible, and most importantly, support the complexity of decision-making and the necessity of the service(s) being performed.
This, however, is where it gets tricky, because there has been so much information flooding us that it makes it hard to know what to follow.
Here are my top five (5) recommendations:
- Follow CMS Guidelines (even though they have to make frequent amendments) since they are the "Gold Standard" that pretty much all insurance companies emulate. Commercial payers, while they may follow CMS, often vary in their claims processing, so check their websites and press releases often;
- The AMA, Management, and Specialty Societies do not set payment policy; thus, their releases are opinion(s) and hopes that insurance companies will adopt or consider their position(s);
- Don't take the first piece of guidance issued as gospel, since it's certain to change. Stay current with all things COVID-19;
- Don't cut corners on your documentation as audits are inevitable;
- Don't take unnecessary chances; billing for services either not rendered or not rendered as the code description suggests will result in bad things happening to your practice.
The OIG has made it clear that they will seek out those who take advantage during this crisis, and along with the DOJ and/or AUSA, will prosecute to the fullest extent of the law.
As with all things, the threat of litigation during or following the end of the COVID-19 pandemic is a real possibility. Unfortunately, there are those who prey on the vulnerable and look for any opportunity to generate revenue. At DoctorsManagement, LLC, our goal and sole purpose is to empower providers to succeed and to mitigate risk at every turn. As such, it is our position that all practices, regardless of size, need to obtain Employer Practices Liability Insurance (EPL) ASAP. If your practice/organization already has it, it is our recommendation that you consider upping your current limits through a discussion with your licensed agent. There is an industry expectation on the legal side that there will be "an onslaught of litigation over the new leave policies in the FFCRA" (Amanda Waesch, JD/BMD). It is advised by both DoctorsManagement, LLC and the respected organizations with which we work and affiliate that providers MUST DOCUMENT YOUR DECISION-MAKING PROCESS AND ALL GOOD-FAITH EFFORTS TO COMPLY IN YOUR SEPARATE COVID-19 COMPLIANCE FILE!
Let's shift to Contingency Planning. I am and have been a "prepper" for almost two decades, and while many have teased me about it over the years, I stuck with it and held on to my training so that in the event TSHTF, my family and closest friends would be well protected and have the essentials to survive long-term if everything were to shut down. Part of my planning was to create a contingency plan so that each member of my family, whether they were at my home or in another location, would know the steps to take to ensure their safety and security until the all-clear was given. I am fortunate that in our family, my son is a First Responder (Firefighter/EMT), as is one of my brothers-in-law, and my son-in-law is in the Army Special Forces; and as such, they bring another level of preparedness to our family. Since this article is not about escape and evade or how to survive off-grid after a nuclear or biological fallout; I will focus on just the basic steps to follow in order to create an effective contingency plan.
In the book, The Art of War, Sun Tzu states, "Plan for what is difficult while it is easy, do what is great while it is small." As a Compliance Officer, my job is not only to focus on policy and procedure but to develop contingency plans for each of my clients based on their size and geographic location. It is critical here, just like with OIG Compliance, that it's not one size fits all. Each plan has to be tailored to the organization and the individuals that make it up, and since I cannot be there with them during a crisis to hold their hand step-by-step, they will have to depend on their training and what they retained during education sessions prior to the crisis to ensure they come out on the other side just fine.
Obviously, the bigger your practice, hospital network, or delivery health system, the more moving parts there will be, and the higher-levels of complexity there will be with your plan.
The key to creating a successful Contingency Plan is scalability. I think we have all learned a significant lesson with COVID-19, which is, no matter how small your company, how long you have been in business, and what sector you operate in, a contingency plan is an absolute must-have.
Being from Georgia, I am a meat and potatoes kind of guy, which means you can keep the sides of veggies for someone else; and that is precisely how I write.
So, let's get after it by focusing on the essentials of a contingency plan:
A contingency plan is nothing more than a set of steps that are in writing, much like your policies would be for OIG, HIPAA, OSHA, etc. The steps that your team must take during an emergency need to be written in plain text and in a manner that is easy to follow since they will most likely be used during the actual emergency. If you make things too convoluted or jargon-filled, people will improvise, and that is when things go from bad to worse. I tell my team that when they are writing a contingency plan, write it on the level of a 4th grader, since most people are not fully prepared for responding during an emergency. Remember, not everyone has served in the military-and specifically not in the Marines where they are taught to improvise, adapt, and overcome! Not everyone has received first responder training, so again, using the KISS (Keep It Simple Stupid) principle is a must.
As in life, there are always primary objectives (my adult objectives: education, marriage, kids, buy a house, plan for retirement, and have funeral arrangements in place-not necessarily in that order) and the same can be said regarding the establishment of a contingency plan:
- Minimize damage and loss by containing the situation and slowing or preventing escalation.
- Continue to function as closely as possible to normal, while keeping in mind things are not normal.
- You have to determine best how to work with those not prepared to deal with the crisis.
- There is no "black and white" in crisis. Things remain fluid, and your plan must be able to adapt with the fluidness of the situation.
- Create your contingency plan as soon as possible and ensure you have effectively communicated it to your entire organization. Monitor and update your plan often since things and environments are always changing. Take into account whether you are in a rural or urban area, along a fault line, or in a coastal area, as this will have a direct impact on your planning.
The "Keys" to contingency planning:
Safety should always be the number one concern of an employer. Safety of your employees and customers is paramount. Not everyone is blessed with common sense, and as such, it is critical that your staff knows exactly what to do or what is expected of them during an emergency. Establish a Crisis Team and appoint leaders and ensure they know their role and where emergency supplies are and how to use them in the event things escalate and people are injured. Depending on 911 during a crisis is foolish since these professionals are going to be stretched thin. Time is not your friend in a crisis, and quick, concise action will make all the difference between containment and escalation. The time to educate your staff is at the time of hire-or during the time most refer to as onboarding. Expecting folks to know what to do and how to do it during a crisis is unrealistic and is what leads to injury and/or death.
Remaining in control during a crisis demonstrates strength and brings a level of calm to those looking to you for leadership. During a crisis, it is possible that the power is out and typical phone (land and cellular) communications are not available. I believe every practice, hospital network, and delivery health system should have a satellite phone or something that converts their normal cell phone into a sat-phone or global hotspot. These items are not very expensive, nor are the plans. I use Somewear (https://www.somewearlabs.com/), which allows my cell phone to operate as a global hotspot when all normal communications are down. Remember, when there is a power outage, charging your cell phone is not possible unless you have a generator or a portable solar power panel kit (I use the ACOPOWER 120W Portable Solar Panel Kits, 12V Foldable Solar Panel with 10A Charge Controller in Suitcase), which there are many options available. Also remember, the ability to communicate during an emergency or crisis is critical. I encourage all of our employees to have solar rechargeable devices for themselves and to keep one in their car and one at home. These things are inexpensive, typically costing less than $50.00 (such as the Portable Charger RAVPower 22000mAh Power Bank External Battery Pack with 5.8A Output 3-Port (iSmart 2.0 USB Ports,) Compatible with iPhone and Android)-don't forget to keep it charged!
Make sure your employee phone list is updated on a regular basis, especially if you have folks coming and going. There is nothing worse than needing to contact someone and not having their number. Make sure the Crisis Team leaders have the most up-to-date phone list, and if possible, laminate it to protect it from elements such as rain.
Back-up and Recovery
It is never too late to begin backing up your data. If you haven't done it yet, what are you waiting for? All companies, especially in healthcare, have and store data. There is no argument that data is key to any company's survival, and without it, you're a dead stick. If you do not have a data backup and recovery plan, you need to call the folks at Sword and Shield or your General Liability Carrier for a recommendation. There is no time like the present to take that first step to security! If you lose power and you have a generator, you're in good shape. If you don't have a generator and you lose power, but everything is stored in the cloud, you're also in good shape. The bottom line here is that you need to do something so you are not left behind when things restore after a crisis.
"Cash is King" is what my late brother Michael would always say to me. The problem is paper currency during a crisis tends to not be worth the paper it is printed on. Diversification for businesses and personal finances is critical. Never keep all of your money in one bank or in one account, especially funds over $250,000. Unfortunately, banks today are paying pretty much nothing when it comes to interest, so you might as well keep a stash in a fireproof safe that is bolted into the cement ground in your house or office. Personally, I think $5,000-10,000 for a family of four is sufficient, and if used wisely, can last an extended period of time. Calculating for a business is much more difficult, and that is where your CPA should come in handy for small businesses. Hospital networks and health systems typically cannot maintain the amount of cash that would be required to function on hand, but you can rest assure they all have a strong contingency and recovery plan in place for when a crisis strikes; but again, it is best to talk to your CPA and attorney about this one. Keep in mind that Uncle Sam likes his share, and ever since the Patriot Act was put into place, keeping cash in your safety deposit box at the bank is a no-no.
I talked about diversification earlier, which means you should own precious metals, such as gold and silver, and many of my clients have stashes of both and other precious metals in the event the dollar were to collapse. Right now is not the time to buy either, since they are commodities, and when the market takes hits like they have over the past three weeks, precious metal prices go through the roof. If you have a strong financial advisor who is able to forecast what the markets will do if they see a pandemic or other crisis is possible in the near future like COVID-19, they can move your position from stocks to municipal bonds to protect your wealth, and then once the markets recover, to avoid inflation, move your position away from the municipal bonds back to stocks. Again, this is something for your licensed and experienced financial investor to advise you on, but knowing what questions to ask will make the discussion that much easier. The bottom line here is you have to prepare for a rainy day!
The What Ifs
None of us has a crystal ball or are tapped in to Nostradamus, so being able to predict when and where a disaster will strike is impossible. However, even though none of us likes thinking about bad situations, thinking about some of the worst-case scenarios will ensure we are better-or as well-prepared as we can be in a crisis.
Some of the not-so-fun things to think about are:
- Natural Disasters (power outages, Nor'easters, ice storms, hurricanes, tornadoes, floods, earthquakes, etc.)
- Medical Pandemics (Influenza, Swine Flu, COVID-19, Ebola, Plague, etc.)
- Financial System Collapse
- Employee or Competitor Sabotage
The thing to keep in mind with a crisis or disaster situation is that no one knows how long it will actually last. Depending on the State or Federal Government to get it right should never be your first thought or hope. Yes, in times of crisis like COVID-19, we are all in this together, but truth be told, we are all primarily looking out for ourselves and our loved ones. Being prepared in the areas discussed (Safety, Communication, Back-up and Retrieval, and Finance) will ensure you minimize disruptions to your operations and put you in a stronger position to re-open when the all-clear is given. Working with your Crisis Team and talking through the "What Ifs" will go a very long way to ensuring cohesiveness with your team about how best to respond to a crisis. What you determine to be the steps taken in the various types of What Ifs addressed above should be clearly documented in your contingency plan and published for the entire staff to educate themselves on.
Once you have your plan in place, remember just like your OIG Compliance Plan, it needs to be a living, breathing document that adjusts as things change and the world evolves. At a minimum, you need to review your plan annually to ensure it is up-to-date (if you live in an area prone to natural disasters or strong winter storms or high summer heat, review your plan at the start of each changing season), and if you previously experienced an emergency or crisis, compare what you did to what you documented, and determine what worked and what didn't and then make the necessary adjustments within your plan. I say it all the time, "Everyone enters a fight with a plan until they get hit; then everything changes!" My point is that anticipating all the worst-case scenarios and "What Ifs" and applying common sense and easy-to-carry-out steps to first and foremost ensure safety, and second survival until things taper off, is the winning combination in your fight against a crisis.
Even with some of the bad news out there, I still believe that at the end of the tunnel, there is a light. The question is, is it a light leading us out of this nightmare, or is it the light of a train speeding toward us? Your efforts now and in the future will determine which light it is!
Sean M. Weiss, CHC, CMCO, CPMA, CMPE, CPC-P, CPC, Partner/Vice President and Chief Compliance Officer, DoctorsManagement, LLC
Sean Weiss, CPMA, CPC, CPC-P, CCP-P, ACS-EM, is a partner and Vice President of Compliance for Doctors Management. Sean has dedicated his more than 25 - year career to helping healthcare facilities reduce the risk of noncompliance and achieve measurable financial results. An accomplished compliance and management professional, Sean has extensive knowledge of the inner workings of government agencies at both the federal and state level, including the Office of Inspector General, Department of Justice and The United States Attorney's Office. www.doctors-management.com