Introductions. Today s Topics 10/12/2015

Transcription

1 Healthcare Enforcement Compliance Institute Tuesday, October 7, 2015 Laubach/Waltz HCCA October Introductions Judy Waltz Lori Laubach 2 Today s Topics Identifying the need for auditing (and refunds) Structuring the audit, getting it done, and moving forward (operational concerns) Meeting legal obligations while maximizing legal protections 3 1

2 Laubach/Waltz HCCA October One of the Seven Elements An ongoing evaluation process is critical to a successful compliance program. The OIG believes that an effective program should incorporate thorough monitoring of its implementation and regular reporting to senior hospital or corporate officers. Compliance reports created by this ongoing monitoring, including reports of suspected noncompliance, should be maintained by the compliance officer and shared with the hospital s senior management and the compliance committee 5 Sentencing Guidelines 8B2.1(b)(5) The organization shall take reasonable steps to ensure that the organization s compliance and ethics program is followed, including monitoring and auditing to detect criminal conduct; to evaluate periodically the effectiveness of the organization s compliance and ethics program; and to have and publicize a system, which may include mechanisms that allow for anonymity or confidentiality, whereby the organization s employees and agents may report or seek guidance regarding potential or actual criminal conduct without fear of retaliation. 6 2

3 HHS/DOJ Health Care Fraud Prevention and Enforcement Action Team's ("HEAT") Internal Auditing Perform proactive reviews in coding, contracts & quality of care. Create an audit plan and re evaluate it regularly. Identify your organization s risk areas. Use your networking and compliance resources to get ideas and see what others are doing. Don t only focus on the money also evaluate what caused the problem. Create corrective action plans to fix the problem. Refer to sampling techniques in OIG s Self Disclosure Protocol and in CIAs to get ideas. 7 HHS/DOJ Health Care Fraud Prevention and Enforcement Action Team's ("HEAT") Enforcement of Policies and Procedures and Prompt Response to Compliance Issues Delegate/empower teams closest to the issues to perform reviews, but be careful of possible conflicts or personal relationships that may interfere with getting an objective review. Act promptly, and take appropriate corrective action. Create a system or process to track resolution of complaints. Enforce your policies consistently through appropriate disciplinary action. compliancetraining/files/operatinganeffectivecomplianceprogramfinalbr508.pdf compliancetraining/files/operatinganeffectivecomplianceprogramfinalbr508.pdf 8 Intent for Purposes of the False Claims Act The standard for proving a knowing violation of the FCA is relatively low. Actual knowledge Deliberate ignorance Reckless disregard for the truth or falsity of a claim 9 3

4 CMS Data Analytics Think about your data footprint Medicare each new claim is compared to 9 years of claims data (Integrated Data Repository A,B & D claim data back to January 2006) 10 Laubach/Waltz HCCA October Audit Plan Development Based on risk assessment, interviews, industry knowledge, organization risks, organization s specific issue history, etc. o Recent OIG audits (OAS reports), e.g., hospital compliance audits o OIG Workplan o CMS RAC audits approved issues Taken to Compliance Steering Committee and Audit Committee for final approval. Annual audit plan finalized and quarterly plans developed. 12 4

5 Auditing versus Monitoring Auditing o The process of going back and looking at some thing or some part of an ongoing process that is completed and checking to see whether it was done and, if it was done, was it done correctly. Monitoring o It is the on going, day to day process that ensure that things do get done on time and correctly. 13 Auditing & Monitoring How? Use a RISK BASED APPROACH to determine what to audit and monitor. Develop and implement POLICIES AND PROCEDURES for periodic auditing and monitoring. Establish MONITORING SYSTEMS focused on prevention, early detection and resolution. Rotate through specific areas on periodic basis Operating departments should be doing on going monitoring of key processes and accounts. 14 What should I plan for? Laubach/Waltz HCCA October

6 Legal Involvement? There may be advantages to doing an audit under privilege. o Even if the information will be disclosed ultimately, privilege may allow the entity somewhat more control over that process. o Involve Legal at the earliest possible point privilege will not be retrospective. o Consider other potential collateral actions that might want the results of these audits e.g., employment matters. 16 Audit Program Design 1. Define the need 2. Establish your compliance goal / accuracy rate 3. Obtain policies and procedures for area of focus 4. Choose an appropriate sample size 5. Determine Look back period 6. Choose who should perform review 7. Request data 8. Prepare the audit report with findings and recommendations 9. Corrective Action Plan (CAP) 10. Ongoing monitoring 17 Define the Need Based identified concerns on reported activity Identified from monitoring Random or focused Document the audit objectives Define the reporting process of results How often will the audit be performed? 18 6

7 Compliance Goal A policy to define expectations Define accuracy rate Determine what will be measured Define need for disclosures, refunds, disciplinary action or education, other. 19 Who Performs? According the Office of Inspector General 's (OIG) auditing standards, evidence gathered by auditors and compliance officers should be sufficient, competent, and relevant. o Sufficiency o Competency o Relevancy Internal vs. external may be issue specific or broader based determination 20 Lookback Period? Not currently defined by CMS in regulations (proposed regulation used 10 years) Standard reopening (4 years for claims overpayments) RAC recently has used 3 years Medicaid 9/9/2010 CPI Informational Bulletin, indicates that Medicaid Integrity Contractors should use a 5 year lookback period Other period may be appropriate in specific situations 21 7

8 Reporting and Follow up Draft report with stakeholders Rebuttals Final report with recommendations Follow up on status of implementation of recommendations/corrective actions Identify monitoring activities for long term compliance Establish follow up reporting timeframes 22 Laubach/Waltz HCCA October AHLA & OIG Compliance Guidance for Boards OIG s expectations for Board oversight are increasing. o Note recent CIAs that require Board training and signed statements from Board members (and executives) as to compliance. What processes are in place to ensure that appropriate remedial measures are taken in response to identified weaknesses? Note collateral consequences of compliance issues, e.g., shareholder derivative actions. 24 8

9 Reporting and Follow up Identify your stakeholders Draft report for review with stakeholders Final report with recommendations Follow up on status of implementation of recommendations/corrective actions Identify monitoring activities for long term compliance Establish follow up reporting timeframes 25 Corrective Action Plans Based on root cause of issue Collaboration with management to develop appropriate corrective action o Specific o Actionable o Measureable o Has a timeline 26 Corrective Action Plans ISSUE: Issue Description What is the issue? (Condition) What is required? (Criteria) What is causing the issue? (Cause) What is the issue s impact? (Effect) ISSUE RATING: Management Action Plan Recommendation Management Response Responsible Party Implementation Date 27 9

10 Corrective action plans and who to report to Laubach/Waltz HCCA October The 60 day Refund Rule Added by the Affordable Care Act 42 U.S.C. 1320a 7k(d) No current regulations for Parts A/B proposed regulations have not been finalized Statute is in effect: requires that any person who receives an overpayment from the Medicare or Medicaid programs and who does not report and return an overpayment within 60 days after identification will be subject to potential False Claims Act liability 29 Identification What does that mean? CMS discussed in proposed rule but never finalized it. o "[a] person has identified an overpayment if the person has actual knowledge of the existence of the overpayment or acts in reckless disregard or deliberate ignorance of the existence of the overpayment. (42 C.F.R. Proposed (a)(2).) Recent case Kane/Continuum (8/3/2015, interim ruling) Identify means when provider on notice of a potential overpayment, rather than the moment when an overpayment is conclusively ascertained

11 Error Calculation Count of met and not met for: o Claims o Lines (services billed) Net reimbursement Weighted points to the total lines o By line o By type of CPT code o Diagnosis errors o Modifiers o Teaching physician count 31 Laubach/Waltz HCCA October Laubach/Waltz HCCA October

12 Laubach/Waltz HCCA October Laubach/Waltz HCCA October National Fraud Prevention Program Two Concurrent Approaches Take quick administrative action to prevent improper payments. Take quick action to remove bad actors from Medicare. Predictive Analytics (Claims) Provider Screening (Enrollment) Identify bad actors and prevent them from enrolling in Medicare. Take quick action to remove bad actors from Medicare. Laubach/Waltz HCCA October

13 National Fraud Prevention Program Two Concurrent Approaches Take quick administrative action to prevent improper payments. Take quick action to remove bad actors from Medicare. Predictive Analytics (Claims) Provider Screening (Enrollment) Identify bad actors and prevent them from enrolling in Medicare. Take quick action to remove bad actors from Medicare. Laubach/Waltz HCCA October Other Key Facts Increased Data Sources o APS leverages thousands of government, public, and private resources to verify and supplement data submitted by providers. Monitoring Alerts o APS monitors critical eligibility requirements (e.g. sanctions, death, convictions) and immediately alert CMS to any changes. o APS also regularly re screens all information on a provider enrollment application for continued accuracy. Unified Screening Process o APS will provide a unified screening process for all MACs to ensure that all Medicare providers are screened with the same degree of rigor. 38 Comprehensive Strategy Detect suspicious claims prior to payment Prevent fraudulent providers from enrolling Revoke bad actors from Medicare and Medicaid Focus on risk and reduce burden on legitimate providers Predictive Analytics (Claims) Provider Screening (Enrollment) Keep bad actors from re-enrolling Share information with States, law enforcement and private plans to target and track fraudsters Laubach/Waltz HCCA October

14 Judy Waltz Foley & Lardner LLP Lori Laubach, CHC Moss Adams LLP Laubach/Waltz HCCA October