Avoiding a Compliance Nightmare in 2020
There is absolutely no doubt 2020 is already off with a bang! Thus far (since January 2nd), we have had no less than 3 new clients contact us because they were notified by one of the Blues that they were being terminated from participation. A law firm has us working on a 22-count indictment for conspiracy to commit fraud or a scheme to elicit funds from the federal payor program(s). A law firm that is working with the United States Attorney's Office (USAO) on a multiple count indictment for violation of Incident-To and infusion services. Then there are the dozen or so clients that have contacted us who since January 2, 2020, have received notice of audit from the Targeted, Probed and Educate (TPE) program, Special Investigative Unit from one of the commercial payors, a client who is facing $50k in off-sets without notice following the submission of claims in 2019 and finally a client who received a Notice of Intent of Referral to the Department of Treasury for failure to promptly return overpayments to CMS. The majority of the issues these clients are facing could have been addressed prior to any of them becoming an issue had they taken the time to understand their service lines, requirements by the government for audit and/or refund processes, documentation requirements for coding and billing of their services, and how to avoid referral to the Department of Treasury. How you ask? Simple, by having standard operating procedures (SOPs) and/or effective policies written in a manner that makes it easy for the staff to understand the what, when, where, why and how of dealing with specific issues as I previously outlined.
I know you all get tired as do your providers, owners, CEOs, and other managers hearing about compliance programs but the truth is the requirement to have one is only gaining momentum. Compliance programs are a condition of participation with the majority of the commercial payors and with CMS. There are boxes on the CMS 855 Forms that you have to check to attest to your having an effective compliance program in place and believe me, I saw multiple times in 2019 requests from not only prosecutors but from the SIUs and other entities requesting proof of your compliance.
As a Compliance and Regulatory Officer, I spend the majority of my days engaged in the review of governmental Guidelines, Statutes, Acts, Laws and Regulations to aid in the recommendations provided to our law firms, medical practices, community hospitals and health care organization clients. The impact of changes in the rules are and will continue to have significant impact for decades to come and long after I am gone from working in this industry. We are without a doubt one of if not the most regulated of all professions and the fines and penalties are beyond comprehension lots of times.
One of the best ways to monitor your compliance program is to understand what governmental agencies are looking for from your organization and how non-compliance can impact you. Take for example the U.S. Department of Justice (DOJ), Criminal Division who on the 30th of April, 2019 released their updated guidance to prosecutors within DOJ on how to assess the effectiveness of corporate compliance programs. What is interesting about this release is the incredible focus the guidance places on compliance programs and the requirement of investigators looking at companies to closely to evaluate, test and require upgrades to their programs prior to any investigation being concluded.
The guidance document places emphasis on 3 fundamental questions that prosecutors need to address:
1. Is the corporation's compliance program well designed?
3. Does the corporation's compliance program work in practice?
The guidance document itself actually creates 12-topics for consideration:
1. Risk Assessment - Prosecutors should consider whether the program is appropriately "designed to detect the particular types of misconduct most likely to occur in a particular corporation's line of business" and "complex regulatory environment." JM 9-28.800.
3. Training and Communications - Prosecutors should assess the steps taken by the company to ensure that policies and procedures have been integrated into the organization, including through periodic training and certification for all directors, officers, relevant employees, and, where appropriate, agents and business partners. Prosecutors should also assess whether the company has relayed information in a manner tailored to the audience's size, sophistication, or subject matter expertise.
Throughout the course of a year, I speak to thousands of health care professionals from all across this great nation and while so many tell me they learn so much from me, the truth is I learn just as much if not more from y'all, which provides me scenarios to problem solve.
The biggest mistakes I saw in 2019, which can be avoided going forward, were organizations either over- or under-thinking their compliance program and as a result, spent way too much money or what they spent was a waste of money because what they got won't protect them should they need it. When you set out to accomplish something such as the implementation of a compliance program, there is no need to guess, the foundation is there, tools and templates are widely available and expert guidance is at your fingertips. This leads me to the last part of this first Blog of 2020 and that is whether or not you should/could use a compliance program in box. You know, the ones they advertise for $99.95 or the "professional" version for $199.00. My answer is these things are not effective and would do nothing to protect you during an investigation unless you first performed a "Gap Analysis" and then made enough modifications to the documents to truly be specific to your organization. At the end of the day, these things are generic templates that do not take into account in which state you practice, the payors you participate with or the current structure of your practice/organization. Again, the old saying goes, "Garbage in; garbage out," meaning if you simply open the Word document and replace the word "Practice" with the name of your entity, print it and stick it in a binder and only pull it out when you are called to the carpet, you will absolutely in the end get what you deserve.
Unfortunately, 2020 for providers of health care services is going to most likely be a record setting year for recoveries, plea agreements and/or indictments. Don't be one of the statistics because you cut corners or chose to bury your head in the sand and pretend nothing bad like that could happen to you. Pleading ignorance and/or stupidity are non-defenses in a court of law. "Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity" Martin Luther King, Jr.
Sean M. Weiss is a Partner and serves as VP/Chief Compliance Officer for DoctorsManagement, LLC based in Knoxville, TN. DoctorsManagement, LLC services more than 20,000 clients nation-wide and has been in existence since 1956. Weiss serves as an Investigator and expert witness in Federal and State cases as well as an expert or lead in Administrative Law Judge Hearings. During his 25-year career, Weiss has engaged in more than 200 cases working with law firms and health systems across the country. Weiss serves as a third-party compliance and regulatory officer for more than a dozen health care organizations across the country of varying sizes. For more information on Sean M. Weiss or DoctorsManagement, LLC visit us online at www.doctors-management.com or contact us directly at 800.635.4040. You can also follow Sean on his biweekly Blog on LinkedIn (Sean M. Weiss "The Compliance Guy") or at www.thecomplianceguyblog.com
If you need help with an audit appeal or regulatory compliance concern, contact us at (800) 635-4040 or via email at email@example.com.
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Why do thousands of providers trust DoctorsManagement to help improve their compliance programs and the health of their business?
Experienced compliance professionals. Our compliance services are structured by a chief compliance officer and supported by a team that includes physicians, attorneys and a team of experienced auditors. The team has many decades of combined experience helping protect the interests of physicians and the organizations they serve.
Quality of coders and auditors. Our US-based auditors receive ongoing training and support from our education division, NAMAS (National Alliance of Medical Auditing Specialists). All team members possess over 15 years of experience and hold both the Certified Professional Coder (CPC®) as well as the Certified Professional Medical Auditor (CPMA®) credentials.
Proprietary risk-assessment technology - our auditing team uses ComplianceRiskAnalyzer(CRA)®, a sophisticated analytics solution that assesses critical risk areas. It enables our auditors to precisely select encounters that pose the greatest risk of triggering an audit so that they can be reviewed and the risk can be mitigated.
Synergy - DoctorsManagement is a full-service healthcare consultancy firm. The many departments within our firm work together to help clients rise above the complexities faced by today's healthcare professionals. As a result, you receive quality solutions from a team of individuals who are current on every aspect of the business of medicine.