Fraud and Abuse Compliance Plans: It's a Different Game Now!?

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Elizabeth E. Hogue, Esq.

Office: (877) 871-4062

Fax: (877) 871-9739

Twitter: @HogueHomecare

Fraud and Abuse Compliance Plans: It's a Different Game Now!

In 1997, the Inspector General of the U.S. Department of Health and Human
Services (HHS) announced that if providers had compliance programs, it might
help them to avoid permissive exclusion from federal and state health care
programs. At that time, the Office of Inspector General (OIG) of HHS was
attempting to encourage widespread adoption of compliance programs.

Now, according to the OIG, the game has changed! It's not enough to have a
compliance program; it must be operated effectively.

Needless to say, if providers don't have compliance programs at all, they
are definitely "behind the eight ball." And if providers have compliance
programs, but haven't effectively implemented them, the OIG has made it
clear that they are probably no better off than if they didn't have
compliance programs at all.

Guidance issued by the OIG in 2016 clarifies that the OIG will use a
spectrum of risk to evaluate cases along a continuum to determine what
action should be taken against providers. Factors that the OIG will use to
determine risk include:

- Nature and circumstances of the conduct involved

- Conduct during the investigation

- Any significant ameliorative efforts

- History of compliance

In evaluating the nature and circumstances of the conduct involved, the OIG
will consider the following:

- Adverse impact on individuals

- Financial loss and circumstances of the allegations, such as length
of time the conduct persisted, existence of patterns of misconduct, etc.

- Leadership role of individual defendants and/or corporate
executives in the alleged misconduct

- History of prior fraudulent conduct

With regard to conduct during investigations, the OIG now expects prompt
response to subpoenas and does not take into account whether it is possible
for providers to engage in the same misconduct again. The OIG will instead
evaluate whether providers cooperated with the investigation. Better yet,
the OIG looks favorably on the conduct of internal investigations prior to
becoming aware of investigations by the government. Providers may receive
additional "credit" for disclosing the results of investigations with
adverse results to the government.

In terms of significant ameliorative efforts, the OIG will evaluate what
compliance activities, process changes or controls providers have put in
place over time. The OIG will also consider whether appropriate
disciplinary action was taken against individuals responsible for the
misconduct and whether providers devoted significantly more resources to
compliance activities following identification of misconduct.

The final factor considered by the OIG, history of prior fraudulent conduct,
goes to the question of whether providers are repeat offenders. Needless to
say, providers who have previously self-reported or been "busted" are in
serious trouble. The OIG's point of view is that they should know better!

The "train" for more effective compliance efforts is leaving the station!
Get on board!

C2017 Elizabeth E. Hogue, Esq. All rights reserved.

No portion of this material may be reproduced in any form without the
advance written permission of the author.
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