According to the ACA and guidance provided by the Office of Inspector General, an effective compliance program consists of the following:

1. Compliance Officer: Designation of a member of the administration or other employee to handle the responsibility of managing the day-to-day operation of the compliance program.

1. Policies and Procedures:  Written policies and procedures that describe compliance expectations, identify how to communicate compliance issues with appropriate personnel and describe how potential compliance problems are investigated and resolved.

   3.   Training and Education: New hire orientation and periodic

         training and education for administration and all staff.

4. Reporting System: Form of communication, such as a hotline, to be readily accessible to all employees, vendors, governing body members and residents/patients; allows for anonymous reporting of compliance issues without fear of retribution.

5. Discipline: Must be applied consistently and in accordance with well-publicized guidelines; there should be disciplinary standards for noncompliance, failing to report noncompliance, and falsely reporting noncompliance.

6. Auditing and Monitoring:  A system for routine identification of compliance risk areas and self-evaluation of risk areas, including auditing and monitoring, designed to detect criminal, civil and administrative violations.

    7.  Response: A system for responding to compliance

         issues as they arise (including investigating, updating

         policies and implementing corrective action plans). 

    8.  Reassessment: Periodic reassessment of the compliance 

        program to evaluate its effectiveness and to make any

        necessary adjustments.

Please contact Jennifer Cohen, Esq. at 609-454-5351 or jcohen@barmak.com if you or a colleague would like additional information on implementing an effective compliance program at your facility.

A False Claims Act qui tam action alleging that one of the nation's largest Accountable Care Organizations (ACO) improperly billed Medicare for inpatient services rather than outpatient services was recently settled with the Office of Inspector General and included a corporate integrity agreement. The qui tam action focused on many patients between January 2002 and July 2009 and included an allegation that the hospital system improperly transferred these patients to skilled nursing facilities where they did not qualify for care. The ACO did not admit liability but agreed to pay a settlement amount of $8,999,999.00 to the U.S. Treasury.

Skilled Nursing Facilities (SNF) recognize their place along the continuum of care, starting with hospitals and occasionally ending with home care. This settlement underscores the reality that SNFs are also critically positioned along the continuum of finance, and proactive efforts are required to maximize payment and minimize liability.

Under the Affordable Care Act, the significance of an effective compliance program has increased astronomically. An effective compliance program is critical to demonstrate a good faith effort by SNFs in both financial and clinical areas within the SNFs' control. But is an effective compliance program helpful in minimizing SNF exposure to areas outside the control of the SNFs? For example a referring hospital or an outside provider? YES.

What if a physiatrist grows his practice exponentially almost overnight, hiring a number of physiatrists to keep up with the numerous SNFs hiring him to provide care? Unfortunately, his practice's billing department doesn't similarly keep up with the growth in providing care. All submitted claims reflect the founding physiatrist's name as if he provided the services rendered at the numerous SNFs even though the services were provided by the employed physiatrists.  Federal and state fraud units descend not only upon the physiatrist but also upon the SNFs, uncertain as to the possible complicity between the physiatrist and the SNFs. How can the SNFs defend themselves on the basis that the physiatrist's erroneous billing practices occurred outside the SNFs' control and awareness? The SNFs can neither easily nor definitively prove non-complicity; however, the SNF's can definitely show good faith efforts to do properly all that is within the SNFs' control through an effective compliance program.

SNFs must ensure that vendors and providers, who impact the care of the SNFs residents, have compliance programs; however a SNF can't rely upon such programs for the SNF's protection.

An effective compliance program is also critical in defending a healthcare provider against a qui tam action brought by a current or former employee.

When People Refuse Care 

Healthcare providers are often presented with a scenario where a patient in need of care refuses help. This can be particularly frustrating for a provider who knows that the patient needs the help and cannot figure out why someone would refuse their care. Often, providers wish there was a way that they could convince or even force the patient to accept the care that they desperately need. But often, there is nothing the provider can do.

The situation may further be complicated if there are family members arguing in favor of providing care and if there is a question as to the patient's ability to make healthcare decisions for themselves. When it comes to legal decision making, however, there is generally no middle ground. Either the patient has the right to make a decision for themselves or they don't. For example, if a long term care facility resident is perhaps 60% cognitively aware, a provider may believe that someone else should make a decision. But if the resident can definitely declare their objection to care, and if there is no legal guardian for that resident, then even a person with limited decision making ability can still make such a decision.

The only scenarios where another person can make the decision on behalf of a patient is when there is a legal guardian or when the situation suggests that a provider has the patient's implied consent. Implied consent often involves unconscious patients who could be expected to give consent for care if they would have been conscious, or where a patient's acute clinical condition suggests impaired decision-making capacity. In an implied consent situation, the patient is presumed to consent to care which is immediately necessary to correct a life-threatening emergency.

When a situation calls for a guardian, perhaps in a case where a patient and his or her family member is arguing over care and the patient's ability to make decisions is questionable, the answer may be an emergency medical guardianship. The requirements to obtain this guardianship varies from state to state, but in some cases can even involve waking a judge up in the middle of the night to render a decision over the phone. Although these emergency cases are rare, when they arise, it is critical that providers know what they need to do.