The familiar lament that skilled nursing facilities have a heavier burden than other providers in providing services to Medicare and Medicaid beneficiaries found some support in the implementation of the Affordable Care Act.
The adoption and implementation of compliance programs had been at the option of nursing facilities until the ACA. No more: compliance is now mandatory for those who provide services to Medicare and Medicaid beneficiaries.
Specifically, Section 6102 of the ACA mandated that nursing facilities have effective compliance and ethics programs in operation by March 23, 2013. Another section of the Act requires other providers to have these programs as a condition of participation in Medicare/Medicaid programs, but nursing facilities were the first provider group to be singled out.
The push for compliance came at about the same time – 2009 – the OIG claimed that 25% of claims submitted by skilled nursing facilities for that year were in error. Reportedly, these errors were largely due to misreported therapy information – therapy being a significant factor in determining the RUG classifications. Thus the push for regulation.
Under the ACA, the Secretary of the U.S. Department of Health and Housing listed eight required components for a compliance program:
• Compliance standards must be truly effective in reducing violations of law
• Compliance program oversight should rest with high-level personnel with sufficient resources and authority
• Substantial discretionary authority should be kept away from individuals who had or likely have the propensity not to follow the law or established procedures designed to comply with the laws
• Effective and practical compliance training and education
• Monitoring and auditing systems reasonably designed to detect problems and a mechanism for employees to report without fear of retribution
• Consistent enforcement of disciplinary mechanisms
• Following detection of a problem, reasonable response must include steps to prevent similar problems/violations, including modifications to the program
• Periodic reassessment of the program to identify modifications needed based on changes within the facility
The OIG has provided guidance specific to nursing facilities — OIG Compliance Program Guidance for Nursing Facilities published in March 2000 and OIG Supplemental Compliance Program Guidance for Nursing Facilities published in September 2008.
The agency advises that there is not a "one size fits all" compliance program; instead, it recommends that the program be tailored to the individual facility, taking into account size, resources, culture, and corporate structure. In addition to the traditional billing and coding, 2
the OIG also directs us to other known risk areas based on its audits, evaluations, inspections, and investigations — quality related matters like staffing, appropriateness of therapy services, comprehensive care plans, use of psychotropic medications, and resident safety.
How can you meet these guides? Leaders of big and small nursing facilities leaders need to be much more vigilant with compliance program efforts. You may need to strengthen your existing program by
• adding or enhancing internal risk controls;
• making sure you use interdisciplinary team approaches with active physician participation and engagement; and
• developing well-known, publicized open and effective lines of communication between your residents, staff, management and the boards that govern your facilities.
Given ACA's far-reaching and growing regulatory and law enforcement scrutiny, failure to implement an effective compliance program will undoubtedly cause some headaches. It's time to meet this new day with a compliance program that meets the new challenges.
American Health Care Association
Centers for Medicare and Medicaid Services