Skilled Nursing Facility and Nursing Home Annual Work Plan
The OIG’s 2017 Annual Work Plan identified a few new areas of focus relating to nursing homes and skilled nursing facilities. Nursing home compliance officers should consider these newly identified issues when developing their annual compliance work plan.
Investigation of Serious Nursing Home Conditions
The Work Plan references a 2006 OIG report which found that state agencies failed to investigate in a timely manner some of the most serious complaints regarding nursing home conditions. The report referenced nursing home complaints involving immediate jeopardy and/or actual harm to residents. Complaints that rise to this level of severity are to be investigated by applicable state agencies within a 2 and 10 day timeframe. The Work Plan states that OIG will determine the extent to which State agencies investigate serious nuring home complaints within the required timeframes. Nursing homes can expect this to put more pressure on states that are responsible for these investigations to meet these timeframes on a more regular basis.
Unreported Incidents of Potential Abuse and Neglect
This newly identified topic relates to skilled nursing facilities. The OIG states that is plans to “assess” the incidence of abuse and neglect that occurs in skilled nursing facilities. It then plans to make a determination whether these incidents were properly reported and investigated as required under applicable Federal and state law. It appears that the OIG will be taking a sampled representation of cases to investigate. This conclusion can be garnered from reference in the Work Plan to “sampled” incident reports. The OIG plans to interview state officials to assure that incident reports that are examined under its sampling system were reported as required under law. The OIG plans to go even further and determine whether each reportable incident was investigated and subsequently prosecuted by the state.
This area could create some immediate risk exposure to facilities who are sampled as part of the OIG’s investigation. Facilities who are found to have failed to appropriately report potential abuse and neglect incidents could be subject to sanctions.
Review of SNF Use of Minimum Data Set Tool
the OIG states that it will review documentation of selected Skilled Nursing Facilities to determine whether Minimum Data Set Tool have been properly used to determine the severity of the patient’s condition. SNF reimbursment is tied to the severity of the patient’s condition through application of this tool. Periodic assessments must be performed on each patient by applicable skilled nursing facility. Improper use of the tool results in higher reimbursment than may be justified by the patient’s condition.
This issue was called out by previous OIG studies that indicated higher levels of reimbursement were being paid due to improper use of the Minimum Data Set Tool. Again, this is an area of specific concern for facilities who are lucky enough to be selected for audit by the OIG. If the facility is found to have improperly assessed patient severity, overpayment and potential penalties may be imposed. A finding on a small sample could also lead to expansion past the initially reviewed cases.
General Priorities in the Yates Memorandum
- The Yates Memo prioritizes the manner in which Government civil and criminal law enforcement investigations are conducted.
- It begins by proclaiming that “One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing . . .
- [accountability] it deters future illegal activity, incentives to changes in corporate behavior . . . and it promotes the public’s confidence in our justice system.”
The Yates Memo identifies six “key steps” to enable DOJ attorneys “to most effectively pursue the individuals responsible for corporate wrongs.”
- Corporations will be eligible for cooperation credit only if they provide DOJ with “all relevant facts” relating to all individuals responsible for misconduct, regardless of the level of seniority.
- Criminal and civil DOJ investigations should focus on investigating individuals “from the inception of the investigation.”
- Criminal and civil DOJ attorneys should be in “routine communication” with each other, including by criminal attorneys notifying civil counterparts “as early as permissible” when conduct giving rise to potential individual civil liability is discovered (and vice versa).
- Absent extraordinary circumstances, DOJ should not agree to a corporate resolution that provides immunity to potentially culpable individuals.
- DOJ should have a “clear plan” to resolve open investigations of individuals when the case against the corporation is resolved.
- Civil attorneys should focus on individuals as well, taking into account issues such as accountability and deterrence in addition to the ability to pay.
Data Mining Used to Identify Practice Outliers
A Note From the OIG Presentation at the HCCA Compliance Institute
The federal government is actively using data to identify providers who perform outlier billing. If your billing patterns reflect a pattern that is greatly outside of norms, you should be prepared to defend the deviation from the norm. Certainly not every practice pattern that falls outside of norm indicate nefarious wrongdoing. What is important is that your practice maintain awareness of and understand the reasons why billings may be picked up as falling outside of industry norms. You must be prepared to educate government officials as to the reasons for having outlier claims data.
Primary care and pediatric practices will have very little opportunity to deviate from norms in most cases. Highly trained specialists such as neurological surgeons can easily have unusual practice patterns that translate into outlier data that could trigger further government inquiry into billings. Proactive audits performed as part of active compliance program will help the provider identify potential issues. If abnormal data is identified through this process, the provider can address the situation in a proactive manner before the government becomes involved.
If there is an explanation for the anomalies, the provider can establish it in advance. This type of practice approach strengthens the case if the government later raises the issue. The provider should be fully prepared to explain the reasons for the apparent anomalies. In a small and highly specialized practice, data anomalies can easily result from numerous possible non-nefarious reasons. Because the government is actively using data analysis to identify fraud, the provider should assume that data that falls outside of norms will eventually be questioned. Preparation, readiness, and proactivity are the keys to resolving issues with government investigators.
One message was loud and clear when OIG and DOJ lawyers spoke at the HCCA compliance institute. The government is increasingly looking at data to identify inherent billing patterns, referral patterns and other information that could be reflective of improper billings, kickbacks, or other violations.
This information spotlights the need for providers to take a proactive approach in identify their own errors before the government brings these errors forward in a much less friendly manner. If errors or overpayments are identified, repayment should be made promptly. Repayments that are not made promptly are deemed to become false claims and expose the provider to much more severe penalties.
If the circumstances warrant, it may also be necessary to consider using the OIG or CMS self disclosure process to investigate potential penalties.