| David S. Barmak, Esq. |
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Licensed to practice law in the States of New Jersey, New York, Connecticut and Pennsylvania
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| Corporate Compliance Program for Medicaid Providers Recommended by New Jersey Medicaid Fraud Division | |
The New Jersey Medicaid Fraud Division recently published an article advocating for the implementation of a corporate compliance program for all Medicaid providers with at least $100,000 per year of payments from the New Jersey Medicaid program.
The article states the following:
Provider Compliance
At this time New Jersey does not require Medicaid providers to have a compliance program; however, the New Jersey Office of the Medicaid Inspector General (OMIG) encourages Medicaid providers to have such a program in place. OMIG strongly encourages providers whose payments from the Medicaid program exceed $100,000 per year to implement a compliance program.
A successful compliance program addresses the provider's need to prevent fraud and abuse and carries the added benefit of improving the provision of quality health care at lower costs. A successful compliance program also openly demonstrates, to employees and the public, the provider's commitment to conducting its affairs honestly and responsibly.
Compliance programs encourage employees to report potential problems and permit the provider to conduct an internal investigation and take corrective action. Thus, the successful compliance program should increase the likelihood of preventing, identifying, and correcting unlawful, abusive or wasteful conduct at an early stage, minimizing financial loss to the government, to taxpayers, and to the provider.
Compliance programs need to encompass billings, payments, medical necessity, quality of care, governance, credentialing and other risk areas that a provider, with due diligence, identifies. Specifically, any compliance plan should include the following elements:
- Designation of a chief compliance officer responsible for the day-to-day operation of the compliance program; this employee should report directly to the provider's chief executive and periodically report to the governing body (if such a body exists) on the activities of the compliance program;
- Training and education of all affected employees and persons associated with the provider, including executives and governing body members, on compliance issues, expectations, and the operation of the compliance program; such training should occur periodically and should be made a part of the orientation of new employees and governing body members;
- A communication process, such as a hotline, accessible to all employees, outside vendors, governing body members, patients or other users of the provider's services, for the reporting of compliance issues; the lines of communication should allow for anonymous and good faith reporting of potential compliance issues as they are identified;
- Disciplinary policies and standards that are distributed to all employees, which are fairly, evenly, and firmly applied, and encourage good faith participation in the compliance process, including policies that articulate expectations for reporting compliance issues and assist in their resolution and outline sanctions for:
a. failing to report suspected problems;
b. engaging in non-compliant behavior;
c. encouraging, directing, facilitating or permitting either actively or passively non-compliant behavior.
- A system for routine identification of compliance risk areas specific to the particular provider, for self-evaluation of such risks areas, including but not limited to internal audits and as appropriate, external audits, and for evaluation of potential or actual non-compliance as a result of such self-evaluations and audits, credentialing of providers and persons associated with providers, reporting, governance, and quality of care to beneficiaries.
- A system for responding to compliance issues as they are raised; for investigating potential compliance problems; responding to compliance problems as identified in the course of self-evaluations, external evaluations and audits, correcting such problems promptly and thoroughly and implementing procedures, policies and systems as necessary to reduce the potential for recurrence; identifying and reporting compliance issues to the Office of the Medicaid Inspector General; and refunding overpayments.
For more information, please contact the
Law Offices of David S. Barmak, LLC. |
| Do You Employ Persons Excluded from Medicare and Medicaid Reimbursement? | |
The Centers for Medicare and Medicaid Services ("CMS") will not accept healthcare claims based on work done by "excluded persons". In addition, no state Medicaid claims are allowed to be presented to CMS for payment based on work done by exclude persons.
Excluded persons are persons having committed a crime related to the provision of health care, (e.g.; criminal convictions related to healthcare programs as well as to controlled substances) or having engaged in conduct characterized as unacceptable in the provision of health care (e.g.; sexual assault or patient abuse).
Federal law prohibits any payment made by Medicare, Medicaid or any of the other federal health care programs for any item or service furnished by an excluded individual or entity, or at the medical direction or on the prescription of a physician or other authorized individual who is excluded when the person furnishing such item or service knew or had reason to know of the exclusion.
The focus is not on the relationship but on the payment. If the Office of the Inspector General excludes a person from Medicare, the state must exclude that person from that state's Medicaid program.
Once exclusion of a health care employee occurs, health care providers may employ or contract with excluded persons, but may not allow excluded persons to provide or to direct the ordering or delivery of services or supplies, or to undertake certain administrative duties. This applies whether or not direct care activities are involved as long as any part of the task is reimbursed by federal program dollars. Providers that utilize staffing agencies must be sure that the agencies are screening potential candidates to ensure that they have not been excluded prior to being sent to providers for work. Providers must develop and enforce contractual agreements to ensure prescreening occurs by the staffing agencies.
Potential liability for employing or contracting with excluded individuals and/or entities includes for the excluded individual/entity submitting claims: $10,000 fine for each item/service claimed or "caused to be" claimed; plus treble damages of the amount claimed for each item/service; plus extension of any existing exclusion period. Reinstatement is not automatic after exclusion and providers must apply for reinstatement. A violation also potentially amounts to a false claim under Federal False Claims Act. This provides a separate basis for administrative sanctions or exclusion. |
| Thinking of Expanding Into the Home Health
Agency Arena? | |
If opening a home health agency is in your future business plan you should be aware of a new state law, effective as of April 19, 2010 that mandates the reporting of abuse, neglect or exploitation of vulnerable adults in community settings by health care professionals among others. The report would be made to the co-adult protective services provider.
Under prior law, mandatory reporting of suspected abuse, neglect and exploitation only applied to residents of licensed facilities, such as nursing homes and residential health care facilities and reporting was to the Ombudsman for the institutionalized elderly. Although county adult protective services agencies were charged with investigating complaints of abuse, neglect and exploitation in community settings there was no mandate for anyone to report suspected abuse, neglect of exploitation of a vulnerable adult residing in a community setting.
"Community setting" means a private residence or any non-institutional setting in which a person may reside alone or with others, but shall not include residential health care facilities, rooming houses or boarding homes or any other facility or living arrangement subject to licensure by, operated by or under contract with, a State department or agency as these are covered by the existing Ombudsman statute.
The term "health care professional" as mandated reporters, includes any health care professional who is licensed or otherwise authorized to practice a health care profession that is regulated by one of the professional licensing Boards within the Division of Consumer Affairs.
Persons who report information pursuant to this new act, or provide information concerning the abuse of a vulnerable adult to the county adult protective services provider, or testifies at a grand jury, judicial or administrative proceeding resulting from the report are immune from civil and criminal liability arising from the report, information or testimony, unless the person acts in bad faith or with malicious purpose.
Employers or any other persons are prohibited from taking any discriminatory or retaliatory action against an individual who reports abuse, neglect or exploitation pursuant to this act. Employers shall not discharge, demote or reduce the salary of an employee because the employee reported information in good faith pursuant to this act. A person who violated this subsection is liable for a fine up to $1,000. This new law does not provide for specific monetary penalties for failure to report abuse, neglect or exploitation to a vulnerable adult in the prescribed community setting.
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| For Your Information Q & A |
Question:
We hired a nursing assistant who had applied for a job but did not tell us that she was pregnant until after she was hired. Was this shady on her part and is there anything we can do about it?
Answer:Nothing can be done. You can not ask a prospective employee if she is pregnant during a job interview nor can you take any job action against the employee because she was pregnant after she was hired. |
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| Mission Statement - Reduce Your Risk Now | |
Our firm is dedicated to helping health care providers, in particular long term care facilities and their insurers, reduce costs by minimizing the risk of adverse events.
We do this by being proactive (pre-litigation strategies). This includes training and education of employees, review of policies and procedures, implementing communication channels, getting feedback through interviews and focus groups, and continuous monitoring and auditing. Vital to employee education is documentation training and effective communication training.
If an adverse event occurs, our response is promptly reactive (pre-litigation strategies). Mandatory, non-binding mediation is utilized whenever possible. Our goal is to quickly resolve disputes before they escalate and require resolution through the judicial system. To avoid a repeat occurrence, we continue staff training and education with a focus on prevention, as well as review and revise policies and procedures for greater effectiveness.
If a lawsuit is filed, the risk that existed has been realized (litigation strategies). Defense analysis, expert witnesses, focus groups, and mock trials are all part of litigation defense. Finally, implement post-litigation risk management strategies to remedy the situation.
A comprehensive Compliance Program (also known as a Risk Management Program) focuses on early intervention through training, communication, and policy review. Monitoring and auditing are key elements to reduce medical liability exposure and improve patient safety.
David S. Barmak, Esq. received his JD from Cornell University and BA from Duke University. He is licensed to practice and serves clients in the States of New Jersey, New York, Connecticut and Pennsylvania. Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision.
The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising.
For more information, please contact us:
Telephone (609) 688-0055
Fax (609) 688-1199
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