OIG prepares home health compliance guidelines

Don't wait until it's too late

Operation Restore Trust may not be front-page headlines anymore, but that doesn't mean you should relegate the lessons learned to the back burner. As the Health Care Financing Administration continues to ratchet up compliance measures on those providing care to Medicare and Medicaid beneficiaries, it's about time you implemented a corporate compliance program. (See related story, p. 76.)

A spokesman from the Office of the Inspector General (OIG) tells Home Infusion Therapy Management that in the very near future hospitals won't be the only health care providers with model corporate compliance programs available from the OIG.

"We have model [compliance programs] for clinical laboratories and hospitals," says OIG spokesman Ben St. John. "The OIG is in the process of developing compliance guidance - and this is voluntary - for various health care sectors that provide services to beneficiaries of the federal health care program. OIG is working on them and they will be announced as they are completed."

Are you in the fog regarding talk of a corporate compliance program, and just what the OIG has to do with this? If so, you're not alone.

"Anytime you are in the health care industry and you have a Medicare-eligible patient in your mix, you probably need a corporate compliance plan," says Cathy Bellehumeur, JD, senior vice president and general counsel for OptionCare of Bannockburn, IL. "And in the current enforcement environment, this should be looked at as a necessity."

A corporate compliance program is nothing more than a provider's written policy and procedure to help ensure it is abiding by all applicable laws and regulations.

"The federal government anticipates that for a corporate compliance program to be effective it will cover every law and regulation applicable to the company, so in the home health care area that includes the federal fraud and abuse statutes, the False Claims Act, the Stark Act, the Health Insurance Portability Act, provisions in the 1997 Balanced Budget Act, OSHA, and others, so the list is very long," says Bellehumeur. "Any law or regulation applicable to the company should be included."

She adds that it's not just federal regulations providers must consider.

"A lot of states have adopted anti-referral provisions that are modeled on Stark but cover any payers," says Bellehumeur. "Having some sort of commitment in the form of a corporate compliance program that you are going to abide by applicable laws can't hurt."

In fact, St. John says, it can help you if you ever come under investigation for fraud and/or abuse.

"The Inspector General has said that if a provider has an effective compliance program in place, it will be given consideration if there are findings of impro prieties or misconduct and some type of adverse action is in order," he says.

And that's the essence of having a compliance program.

"The issue is not having HCFA come in to look at your plan," says Bellehumeur. "The issue is if for any reason you are under investigation by a federal body and during the investigation you present to them that you have an effective compliance program, it could substantially reduce the size of the fine imposed."

Responsibility doesn't end with you

What if you think you're following the letter of the law? Many providers hit hardest by Operation Restore Trust thought the same thing. (See HITM, September 1997, p. 113.) But it's not just your business you have to worry about. Like it or not, you're also liable for anyone you do business with.

"A compliance program is for risk prevention primarily to protect the company from violation of the laws and imposition of horrific fines if those laws are violated, but the company is responsible not only for the actions of its employees but also its agents, which makes it very complicated because not a lot of us have control over our agents," says Bellehumeur.

For example, Bellehumeur notes that if you hire a billing agency, you are responsible to make sure it is not submitting false claims on your behalf. If you subcontract with a home health agency, it is your responsibility to make sure it is not paying physicians for referrals and that it is performing medically necessary services.

Bellehumeur notes that providers are typically most vulnerable in one area in particular.

"Preparation and filing of claims is an area requiring great detail," she says. "The bill has to be filed in compliance with the Medicare regs, which are very complicated, so it's an area ripe for misunderstanding."

And misunderstandings and errors can be enough to put you out of business.

"The government believes there is no such thing as an error. It is assumed that if an error occurred, there was intent involved. It's almost impossible for anybody to do things error-free all year long," warns Bellehumeur.