|October 10, 2011|
Previously published by Sidebar Blog of Matthews Law Firm on October 7, 2011
Nursing homes should now have increased motivation to draft and implement a compliance plan. The reason? Nursing home compliance plans are now listed in the 2012 OIG Work Plan, and will be a target for enforcement. Specifically, the provision states in full:
Nursing Home Compliance Plans (New)
We will review Medicare and Medicaid-certified nursing homes’ implemention of compliance plans as part of their day-to-day operations and whether the plans contain elements identified in OIG’s compliance program guidance. We will assess whether CMS has incorporated compliance requirements into Requirements of Participation and oversees provider implementation of plans. Section 6102 of the Affordable Care Act requires nursing homes to operate a compliance and ethics program, containing at least 8 components, to prevent and detect criminal, civil, and administrative violations and promote quality of care. The Affordable Care Act requires CMS to issue regulations by 2012 and SNFs to have plans that meet such requirements on or after 2013. OIG’s compliance program guidance is at 65 Fed. Reg. 14289 and 73 Fed. Reg. 56832. (OEI; 00-00-00000; expected issue date: FY 2013; new start; Affordable Care Act)
As you read, according to the Work Plan, a nursing home (and skilled nursing facility) compliance plan should have at least 8 components. And just what ARE the 8 components? For that answer, we look to Section 6102 of the Affordable Care Act. That law states the 8 components are:
REQUIRED COMPONENTS OF PROGRAM —The required components of a compliance and ethics program of an operating organization are the following:
(A) The organization must have established compliance standards and procedures to be followed by its employees and other agents that are reasonably capable of reducing the prospect of criminal, civil, and administrative violations under this Act.
(B) Specific individuals within high-level personnel of the organization must have been assigned overall responsibility to oversee compliance with such standards and procedures and have sufficient resources and authority to assure such compliance.
(C) The organization must have used due care not to delegate substantial discretionary authority to individuals whom the organization knew, or should have known through the exercise of due diligence, had a propensity to engage in criminal, civil, and administrative violations under this Act.
(D) The organization must have taken steps to communicate effectively its standards and procedures to all participation in training programs or by disseminating publications that explain in a practical manner what is required.
(E) The organization must have taken reasonable steps to achieve compliance with its standards, such as by utilizing monitoring and auditing systems reasonably designed to detect criminal, civil, and administrative violations under this Act by its employees and other agents and by having in place and publicizing a reporting system whereby employees and other agents could report violations by others within the organization without fear of retribution.
(F) The standards must have been consistently enforced through appropriate disciplinary mechanisms, including, as appropriate, discipline of individuals responsible for the failure to detect an offense.
(G) After an offense has been detected, the organization must have taken all reasonable steps to respond appropriately to the offense and to prevent further similar offenses, including any necessary modification to its program to prevent and detect criminal, civil, and administrative violations under this Act.
(H) The organization must periodically undertake reassessment of its compliance program to identify changes necessary to reflect changes within the organization and its facilities.
And remember, having a compliance plan is not merely having written policies. Anyone could copy and paste the 8 components into a document and call it their "compliance plan". A compliance plan is a living, breathing document that should be implemented and followed everyday. It is a "way of life" for an organization, from top administration, to full-time staff members, to part-time employees, and even to third-party business associates. A compliance plan includes not only talking the talk, but walking the walk. In order to be compliant, an organization needs to do both by talking it AND walking it.
(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)