Skilled Nursing Facility Compliance Work Plan

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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.

 

Yates Memorandum Main Steps and Key Priorities

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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.

Compliance Policy and Procedures List of Compliance Policies

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LIST OF COMPLIANCE-RELATED POLICIES AND PROCEDURES

PROCESS POLICIES AND PROCEDURES

  1. Compliance Program Resolutions
  2. Appointment Of Compliance Officer
  3. Compliance Plan Document – General
  4. Code Of Conduct
  5. Statement Of CEO On Compliance
  6. Statement Of Board Of Directors
  7. Compliance Committee Charter
  8. Uniform Compliance Definitions
  9. Compliance Plan Elements
  10. Compliance Oversight Committee Policy
  11. Compliance Office Staff
  12. Yearly Compliance Program Review
  13. Recommendation Of Additional Policies And Procedures
  14. Amendments To Compliance Policies
  15. Non-Retaliation And Non-Retribution Policy
  16. Excluded Individuals And Entities
  17. Compliance Reporting System
  18. Compliance Hotline
  19. Compliance Training Policy
  20. Compliance Reporting To The Board
  21. Discipline For Compliance Infractions
  22. Compliance As A Performance Factor
  23. External Compliance Investigations
  24. Execution Of Search Warrants
  25. Self-Disclosure And Self-Reporting
  26. Compliance Audits, Monitoring And Self-Assessment

RISK AREA POLICIES AND PROCEDURES

 

Tax – Nonprofit Status

  1. Conflict of Interest Policy
  2. Whistleblower Policy
  3. Board Review of 990 Policy
  4. Joint Venture Policy
  5. Community Need Assessments
  6. Physician Recruitment

Document Control

  1. Contract Review and Execution Policy
  2. Contract Control System Policy
  3. Document Retention Policy
  4. Record Management Policy
  5. Offsite Storage of Records
  6. Destruction of Records
  7. Definition of Medical Records

Discharge and Transfer

  1. Discharge Planning
  2. Transfer to Skilled Nursing Facility
  3. Transfer to Hospice

Admissions

  1. Admission and Continued Stay Review
  2. Readmission Policy
  3. Admissions Through Emergency Room
  4. Plans of Care

Billing and Coding

  1. General Billing and Coding Policy
  2. Requests for Coding Changes and Rebilling
  3. Changes to Patient Records
  4. New and Adjusted Billing Codes
  5. Chargemaster
  6. E&M Coding
  7. Specific Area Coding
    • Anesthesia
    • Radiology
  8. Professional Courtesy

Patient Billing and Collections

  1. Patient Billing and Collection Policies/Guidelines
  2. Billing Inquiries and Audits
  3. Reducing a Patient’s Bill
  4. Waiver of Co-Insurance and Deductibles
  5. Determination of Need and Hardship
  6. Referrals to Collections
  7. Advance Beneficiary Notices
  8. Customer Complaints

Additional Policies

  1. Medical Necessity
  2. Professional Behavior
  3. Disruptive Practitioners
  4. Incident Reporting
  5. Alleged Caregiver Misconduct
  6. Caregiver Background Checks
  7. Never Events
  8. Physician Compensation
  9. Physician Contracting
  10. Medical Directorships
  11. Leases to Referral Sources
  12. Anti-Kickback Policies
  13. Stark Law Policies
  14. Relationship with Pharmaceutical Representatives
  15. Acceptance of Gifts
  16. Confidentiality of Information

EMTALA Policies

  1. Interfacility Transfers
  2. EMTALA Triaging
  3. EMTALA – Financial Information
  4. Refusal of Delay of Medical Services
  5. Emergency Room Coverage
  6. Delineation of Roles in Emergency Department
  7. Emergency Room Trauma Diversion

Employment Policies

  1. Make Consistent with Compliance

Credentialing Policies

 

Medical Information, HIPAA, Etc.

  1. Protection of Patient Health Information
  2. Joint Notice of Privacy Practices
  3. De-Identification of Protected Health Information
  4. Protected Health Information Defined
  5. Proposal and Destruction of Protected Health Information
  6. Breach Reporting Policies
  7. Minimum Necessary Use Policy
  8. Permitted and Required Use of Protected Health Information
  9. Use and Disclosure of Protected Health Information for Treatment, Payment, Operations
  10. Use and Disclosure of Protected Health Information to Family and Others Involved in Care
  11. Authorizations for Use and Disclosure with Forms
  12. Uses and Disclosures Not Requiring Authorization
  13. Uses and Disclosures for Fundraising
  14. Uses and Disclosures for Marketing
  15. Uses and Disclosures for Research Purposes
  16. Recognition of Patient Personal Representatives
  17. Business Associates
  18. Verifying Identity of Persons Requesting Protected Health Information
  19. Patient Right to Access Protected Health Information
  20. Denial of Patient Access to Protected Health Information
  21. Patient Right to Accounting of Protected Health Information Disclosures
  22. Patient Right to Request Designated Record Set
  23. Patient Right to Request Alternative Means of Communication
  24. Patient Right to Request Restrictions on Use of Protected Health Information
  25. Protection of Information Subject to FDA Regulation
  26. Protection of Information Subject to AIDS Related Information
  27. Protection of Mental Health Treatment Records
  28. Psychotherapy Notes
  29. Government Requests, Court Orders, Warrants Covering Protected Health Information

Telemedicine Policies

  1. Provider Licensure and Credentialing
  2. Remote Access Policies
  3. Security Policies
  4. Telehealth Policies and Procedures
  5. Telecommuting Application
  6. Telecommuting Agreement
  7. Telecommuting Equipment
  8. Scheduling Telemedicine Services
  9. Emergency Room Consults
  10. Billing Telemedicine Service
  11. Checklists for Providing Telehealth Services

Technology Policies

  1. Passwords, Domains, Local Servers
  2. Individual Password Protection
  3. Information Security Policies
  4. Information Security Incident Process
  5. Encryption Policies
  6. Physician Access and Restriction Policies
  7. Technology Life Cycle Review Policies
  8. Technology Disposal Policies
  9. Wireless Communication Policy
  10. Technology Inventory System
  11. Acceptable Use of Computer Equipment
  12. Internet Usage Policies
  13. Workstation Security
  14. Use of Portable Devices
  15. E-mail Usage Policies
  16. Blogging Policies
  17. Social Media Policies
  18. Firewall Policy
  19. Virus Protection Policy
  20. Vendor Credentialing and Access
  21. Software Licensing Policies
  22. Providing Technology to Referral Sources

Identifying Practice Outliers Using Data Mining

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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.