Editor's Note: HPRMN brings Michael E. McDermott, partner with Farrell Fritz law firm in Long Island, N.Y., on board as the new quarterly legal columnist. The firm represents hospitals, physicians, managed care and other healthcare providers. He will tackle a wide range of healthcare's legal issues from a marketing/PR perspective. He can be reached at 516/227-0700. We welcome your legal inquiries. Please forward your topics to Editor Ann McMikel via fax: 301/340-1451; email: [email protected]
Hospital communicators should take note of the guidelines released recently by the Office of the Inspector General (OIG) of the Department of Health and Human Services.
Intended to help hospitals comply with Medicare and Medicaid regulations and combat healthcare fraud, the guidelines propose that hospitals designate a compliance officer, perform annual compliance audits, provide compliance training, and develop a compliance plan dealing with at least 18 areas of special concern for the OIG - including areas in which marketing executives often play a key role.
These areas include billing for items or services not actually rendered like:
- medically unnecessary services;
- outpatient services rendered with inpatient stays;
- teaching physician and resident requirements;
- duplicate billing; and
- stark violations like failing to provide covered services or necessary care to HMO members and patient dumping.
One of the more controversial provisions in the guidelines addresses the issue of self-reporting of fraud. If a hospital official discovers credible evidence of misconduct from any source, and, after a reasonable inquiry, has reason to believe that the misconduct might violate a criminal, civil, or administrative law, the guidelines state that the hospital should report the misconduct to the appropriate authorities within a reasonable period of time - which should not be more than sixty days following discovery of evidence of a violation.
Hospitals should pay particular attention to the OIG's special fraud alerts, which are contained on its website (http://www.dhhs.gov/progorg/oig). A hospital that performs any of the activities specifically proscribed by an alert is expected to turn itself in.
Compliance Officer
The guidelines suggest that the compliance officer should not be a part of the hospital's general counsel's office for fear that a compliance officer reporting to a general counsel would create a conflict of interest. The guidelines also recommend the creation of a compliance committee drawn from a spectrum of specialties including finance, audit, human resources, billing, and discharge planning. A compliance officer should be accessible to employers through a hotline or other communication channels.
The guidelines state that hospitals should perform a compliance audit every year. A minimum audit should be done to cover kickback and Stark violations, coding violations, reimbursement, cost reporting, and marketing. To ensure thorough, effective audits, the compliance officer must have authority to review all documents relevant to compliance activities, including patient records, billing records, and records concerning the hospital's marketing efforts as well as its arrangements with employees, professionals on staff, independent contractors, and suppliers.
In addition, the guidelines suggest that a hospital enact an "interactive" compliance training program which can be spearheaded by the communications department. Training sessions should include Q& A opportunities, not just lectures.
They should also address the previously mentioned risk areas as well as kickback issues, the alteration of medical records, forging of physician's signatures, and the duty to report misconduct. Employees should receive standards of conduct that make clear what the hospital expects from its employees and managers.
Finally, the guidelines recommend that hospitals adopt a comprehensive compliance plan that includes:
- clearly written policies, procedures, and standards of conduct;
- effective lines of communication and regular internal monitoring; and
- disciplinary provisions to enforce the standards, which should be well-publicized.
Compliance on Other Healthcare Fronts
The hospital guidelines are the second model plan to be released by the OIG. In February 1997, the OIG released a plan concerning clinical laboratories, an update to which is expected sometime later this year. Additionally, the agency is working on guidelines to be published in 1998 for other industries, including home health agencies, third-party billing companies, HMOs, and durable medical equipment suppliers.
As was the case with the clinical laboratory guidelines, compliance with the hospital guidelines is strictly voluntary.
However, at a recent press briefing held by the OIG to unveil the hospital guidelines, Inspector General June Gibbs Brown said that prosecutors would take into account whether a provider has an effective compliance program in place that pre-dates any government investigation - a particularly important issue in light of the government's new enforcement powers under the 1996 Health Insurance Portability and Accountability Act. She indicated that such a program might influence the nature and the level of administrative sanctions, penalties and/or exclusions that the agency ultimately might impose against a hospital in any particular case.
Source: Michael E. McDermott, Farrell Fritz law firm