HHS Inspector General focuses spotlight on quality of care

The use of administrative sanction likely to increase, according to Office of Inspector General

Health and Human Services Inspector General (IG) Janet Rehnquist has been on the job nine months now, and Lew Morris, IG for legal affairs in the Office of Inspector General (OIG), says she has made improving quality of care one of her top priorities. "To that end, we are going to be putting more and more resources into investigations, audits, and inspections," he told attendees at the Philadelphia-based Health Care Compliance Association’s annual meeting in Chicago April 23.

About six weeks ago, Morris says the OIG spent two days meeting with counterparts in the Department of Justice as well as state and local enforcement authorities in an effort to develop tools to help identify poor quality of care and poor long-term care, along with effective responses to those problems.

"Closing down a facility does not always advance the best interests of residents," says Morris. "Oftentimes, it has disastrous effects." He says a better method often is to remove the "bad actors" at the top of the organization.

To date, most quality-of-care issues have been limited to long-term care facilities. But that may be changing. "I think we are expanding into other kinds of custodial institutions and have done that in the past," says James Sheehan, U.S. attorney and chief of the civil division in Philadelphia. He says the issue of quality in hospitals is going to be "more difficult" for the government to get to directly but "not impossible."

Morris reaffirmed a recent warning by OIG Senior Counsel Mac Thornton that the OIG plans to expand its use of administrative authorities. (See Compliance Hotline, April 15, 2002.) While most providers are familiar with the OIG’s exclusion authorities, the office also wields a range of civil monetary penalties (CMP) that Morris says "go right to the heart" of the type of program abuses the OIG is witnessing.

In the exclusion context, that means going after those at the top of organizations who are responsible for poor care, he says. "We have the authority to exclude anyone who causes or provides services which do not meet professionally recognized standards of care," he asserts.

"We also have a CMP that addresses the payment of kickbacks," Morris says. That CMP allows the OIG to collect a $50,000 per-violation penalty as well as three times the amount of the kickback for every violation of that criminal statute. While there are many cases that probably should be pursued criminally, there are others where that may be "over the top," he adds. "We are going to start taking back money from those people who are engaged in kickbacks."

According to Linda Waszynski, the assistant U.S. attorney in Chicago, CMPs are an important option for government prosecutors because U.S. Attorneys cannot prosecute every case. Some cases instead are referred back to the IG to determine if they warrant a CMP or some other administrative action. "It becomes harder and harder as there are more and more health care fraud cases that come to the forefront," she says.

The majority of providers will never deal with a U.S. attorney, she adds. More likely, they will deal with someone from HHS, a contractor, or a peer-review organization when questions about coding and overpayment arise.

According to Morris, HHS Secretary Tommy Thompson also has asked the IG to devote additional resources to investigate several areas surrounding grant administration. He says there are concerns about weaknesses in the selection process and lax monitoring of grant programs and progress as well as poor performance in general.

"We do a fair amount of work in the grant area as it is," says Morris. "But I think you are going to see that our auditors and our evaluators, in particular, are going to be looking at how the grant process works and see if we can’t find ways to improve the integrity of the system."

According to Waszynski, the fact so many providers now have compliance plans now brings a whole different perspective to the cases that U.S. attorneys look at. "I am seeing far more voluntary disclosures," she reports.

"Actually, I see too many voluntary disclosures as an assistant U.S. attorney," says Waszynski. She contends that most of the voluntary disclosures she receives actually should go to the contractors because, in all but the most limited situations, they turn out to be nothing more than overpayments.