In This Issue
OIG Issues Supplemental
Compliance Guidance for Nursing Facilities in Record Time
What Do You Know About Licensing Board
Investigations?
HR Corner - Protecting Your Employees From Harm:
The North Carolina Workplace Violence Prevention Act
OIG Issues Supplemental
Compliance Guidance for Nursing Facilities in Record Time
by
Ken Burgess
In the March issue of
Shorts, we advised you that the Office of Inspector General (“OIG”)
published in the January 24, 2008, Federal Register a notice of its
plans to issue additional corporate compliance guidance for skilled
nursing facilities (“SNFs”) sometime in 2008. The OIG offered the public
a 30-day period to offer comments and suggestions about revised guidance
for the industry.
On April 16, 2008, the OIG
published its Supplemental Compliance Guidance for Nursing Facilities,
barely 60 days after first indicating its intent to do so in late
January. Given the normal lag time between OIG notices of its intent to
publish regulations or guidance, and the rapid release of this new
guidance, the OIG obviously had its draft well under development when it
announced in late January the intent to update the SNF compliance
guidance.
When issued in final form,
this will be the second revision of the SNF compliance guidance, which
was first published by the OIG in 2000, followed by an update in 2002.
This new draft supplemental guidance focuses exclusively on “risk areas”
for SNFs – those financial or care practices the OIG believes present
the greatest risk of fraud. The supplemental guidance does not focus on
the mechanics of a compliance program. Those elements were spelled out
in detail in the original 2000 guidance and have not changed since that
time. So the OIG’s recommendations on compliance committees, compliance
officers, codes of conduct for employees and contractors, hotlines, and
other means of reporting suspected violations anonymously all remain in
place.
The draft supplemental
guidance reflects the OIG’s recent focus on quality of care as fraud.
According to the OIG, “in cases that involve failure of care on a
systemic and widespread basis, the nursing facility may be liable for
submitting false claims for reimbursement to the Government under the
Federal False Claims Act, the Civil Monetary Penalties Law, or other
authorities that address false and fraudulent claims or statements to
the Government.” Areas of special focus in the supplemental guidance
include insufficient staffing, comprehensive care plans, inappropriate
use of psychotropic medications, medication management, and resident
safety. The guidance also discusses the role of attending physicians in
resident care and urges providers to routinely involve the physician in
developing residents’ plans of care and ongoing supervision of care. The
discussion of these and other care areas by the OIG in the supplementary
guidance does not really bring anything new to the table. Rather, the
guidance generally discusses the obligations of providers under OBRA,
highlights issues the OIG alleges it has observed (e.g., facilities that
systematically fail to provide sufficient staff or staff with
appropriate clinical expertise), and states that providers should have
or develop appropriate policies, practices, and training to avoid
deficient practices. The guidance provides no detail explaining the
substance of the policies, practices, or training the OIG views as
appropriate or sufficient.
The supplementary guidance
essentially repeats many of the “risk areas” identified by the OIG in
its original 2000 compliance guidance and 2002 update, and expands some
of them with additional examples. This includes both care issues and
financial/billing issues. It also addresses several issues that have
developed more fully since the OIG’s last utterance on SNF compliance
programs. Those include, among others, the privacy of residents’
protected health information under the Health Insurance Portability and
Accountability Act (“HIPAA”); Medicare Part D; referrals to or from
physicians who have an ownership interest in a nursing facility or an
ancillary vendor to which SNF referrals may be made; SNF arrangements
with hospices; proper coding of residents under the RUGS III system;
reserved bed arrangements between SNFs and hospitals; and the
prohibition against requiring supplementation of rates paid for services
covered by Medicaid or Medicare.
For several of these risk
areas, including hospice/SNF arrangements, the Anti-Kickback Statute
(prohibiting the giving, receiving or arranging for items of value in
exchange for referrals paid for by the Medicaid or Medicare programs),
and physician referrals, the guidance suggests a list of questions
providers can ask when evaluating existing or proposed practices or
arrangements that are designed to indicate “red flags” the provider
should analyze to determine the propriety of the arrangement or
practice.
The supplementary guidance
also briefly addresses an issue that has lingered for years – exactly
which long term care providers are “expected” to have compliance
programs. Technically, compliance programs are voluntary although it’s
clear the OIG expects nursing facilities that receive federal funds to
have such a program. The new guidance also states, in a footnote, that
while all long term care providers, including assisted living
communities, should find the compliance useful, the OIG recognizes that
assisted living providers are subject to varying state laws, may have
different or additional risk areas from SNFs, and thus may need to adopt
different compliance strategies, but are nonetheless “encouraged” to
develop effective compliance programs.
The public may comment on
the draft supplementary guidance until June 2, 2008. Given the rapid
publication of this draft guidance, we anticipate that the OIG will
issue its final supplementary guidance fairly soon after the public
comment period closes. Once the OIG issues its final supplementary
guidance, how should providers respond?
The final guidance will
provide a helpful yardstick against which to measure the code of conduct
in your existing corporate compliance program and the explanation of
prohibited activities and arrangements your facility and staff should
avoid. It will also suggest some areas of ongoing or expanded training
that are appropriate as part of your compliance program. A review of
your existing compliance program can be helpful to ensure that it
addresses, both in terms of the substance of the program and the
training provided to staff, the full range of issues the OIG has
indicated, by virtue of publishing the supplemental guidance, it will
focus on long term care.
Ken
Burgess is a long term care attorney advising clients on a wide
variety of legal planning issues arising in the skilled nursing facility
setting, assisted living setting, and other aspects of long term care.
He is a frequent national lecturer and author of industry manuals,
national trade journal magazine articles and similar training tools. He
serves Poyner & Spruill clients by focusing on legal issues impacting
the long term care and health services sector. He may be reached at
919.783.2917 or
kburgess@poynerspruill.com.
Top
What Do You Know
About Licensing Board Investigations?
by
Steve
Shaber and
Tom
West
A Word About Boards
Every long term care facility hires licensed personnel: nurses, physical
therapists, occupational therapists, administrators, dieticians, and
others. One or another of North Carolina’s licensing boards has
jurisdiction over these professionals. Experts say a complaint to a
licensing board is more likely than a malpractice lawsuit, so it’s worth
your time to think about these boards.
And a Word About Complaints
Most complaints to boards come from patients or their families. Most of
the remainder come from health care professionals. The lesson here is to
treat your patients and your colleagues well.
North Carolina law gives each board lots of authority to investigate
licensees. Professional ethics, practice standards, and clinical
competence are all within its purview. More and more, complaints about
quality of care are coming before licensing boards.
If a Board Investigates or Charges You
If you
are under investigation, contact your insurance carrier immediately.
There are two reasons. First, some professional liability policies
provide coverage or partial coverage for defense against complaints
before a board. (If your policy does not, you should consider getting
coverage.) Second, failure to properly report a complaint to your
insurer can jeopardize your malpractice coverage under the policy.
Next,
do all you can to manage the board’s impression of you. Assure the board
that you intend to cooperate, and maintain a professional demeanor at
all times. But also inform the board if you need more time to respond. A
board will give you the time you reasonably need to answer the
investigation or complaint.
Think
carefully and broadly about the board’s allegations in its charges and
investigation. Be sure you understand what bothers the board. If you
miss the board’s point, you look like you are ducking its questions.
Hire
an experienced attorney immediately. Ask any lawyer some key questions
before you hire him or her. Does this lawyer do board cases? Does this
lawyer do cases with your particular board? How would this lawyer
approach your case?
After
you hire a lawyer, he or she should be present at every interview or
telephone conversation with the board or its investigator. He or she
should help you write any letter you send to the board.
If you
need consultants or experts, have your attorney hire them at your
expense. If your lawyer hires them, their work will ordinarily be
privileged and confidential. If you hire them directly, their work may
not be protected.
Be
careful when talking to your colleagues. These conversations will not be
confidential or privileged.
Remember that licensing board investigations may lead to malpractice
claims or criminal prosecutions. The attorney who represents you before
the board can help you avoid collateral damage in civil or criminal
court.
Some Things to Remember as You Respond
Your
credibility is the most important element in your defense. Never alter
your records or misrepresent information. Once a case becomes a matter
of your personal honesty, you are in serious danger.
Investigations and hearings are adversarial. They are very different
from most things you will have seen in your profession. The board will
be fair and professional, but it is up to you to defend yourself.
Most
licensing board matters settle. Ask your attorney if settlement is an
option in your case. Even if settlement talks fail, they will help you
understand the board’s concerns.
If a
settlement offered to you is unacceptable, request a hearing. Don’t fear
presenting your case to the board.
Proactive Measures
It’s
best to avoid trouble. Be familiar with the standards your licensing
board applies to your profession. These standards, often stated in
regulations, are the yardstick against which you will be measured by the
board.
To
find the standards, check your licensing board’s website. It may contain
interpretive rulings, position statements, or other official board
guidance that will help you understand your obligations and may provide
important defenses or exceptions applicable in your case. Some boards
also offer technical assistance or industry guidance services that can
help you understand your obligations and potentially avoid complaints to
the board in the first place. Other boards are less helpful and say they
cannot give advice.
Former
board members may help you understand how the board feels about
particular issues. Some are available as paid consultants. Others will
talk to you informally and point you in the right direction. It never
hurts to ask.
Finally, if you have a serious question about a matter that might
concern a board, whether it is billing, or treatment, or a social
relationship with a former patient, or services to family members, or
professional behavior in the workplace, or anything else, once you start
to look for the answer, dig until you find it. It looks bad in hindsight
if you spotted an issue and then never bothered to find the solution.
Conclusion
We
hope you never face a board investigation, but if you do, take the
initiative, protect your credibility, try to settle, and don’t be afraid
to go to hearing if you have to.
Steve
Shaber and
Tom
West, partners in Poyner & Spruill’s Raleigh office, helped narrow
the scope of the new lobbying law and Ethics Act’s restriction. Steve
may be reached at 919.783.2906 or
sshaber@poynerspruill.com.Tom
may be reached at 919.783.2897 or
twest@poynerspruill.com.
Top
HR Corner - Protecting Your Employees From Harm:
The North Carolina Workplace Violence Prevention Act
by
Kevin Ceglowski
One
requirement for a content, efficient workforce is a feeling of safety
and security on the job. Workplace violence, whether from employees’
domestic situations following them to work or from other sources, should
be a concern of all employers. To address these problems and provide a
measure of protection for workers, the North Carolina General Assembly
passed the Workplace Violence Prevention Act in 2004.
The
Workplace Violence Protection Act has two general goals. First, it
allows employers to pursue certain protections on behalf of their
employees. Second, it prohibits employment discrimination or retaliation
against employees who must miss work as a result of domestic violence or
other harassment.
An
employer may file a civil action to obtain a no-contact order on behalf
of an employee who has suffered unlawful contact at the employee’s
workplace. Unlawful contact is defined as intentionally causing or
attempting to cause bodily injury to the employee, willfully following
or harassing the employee on more than one occasion with the intent to
place the employee in reasonable fear for his or her safety, or
willfully threatening to physically injure the employee.
The
employer must consult with the affected employee before seeking the
civil no-contact order to see if any safety concerns exist related to
the employee’s participation in the process. If the employee is
unwilling to participate in or consent to the process, the employer may
not discipline the employee.
If the
court finds that the employee has suffered unlawful contact, it will
issue either a temporary or permanent no-contact order. Temporary orders
may not remain in effect for more than 10 days, and permanent orders may
not remain in effect for more than one year. The court has discretion to
use the order to prevent further harassment of, or contact with, the
affected employee. Violations of the no-contact order will be considered
contempt of court and are punishable by fines or imprisonment.
In
addition to the no-contact order provisions, the Workplace Violence
Prevention Act also protects victims of unlawful contact from employment
discrimination. An employer may not discharge, demote, deny a promotion
to, or discipline an employee because the employee took reasonable time
off work to seek a protective order related to domestic violence under
Chapter 50B of the North Carolina General Statutes or a civil no-contact
order under Chapter 50C of the North Carolina General Statutes.
Employees must still follow the employer’s normal time-off policies and
procedures, including any requirement to give advance notice to the
employer, unless an emergency makes this impossible.
The
Workplace Violence Prevention Act provides one means for employers to
help protect their employees from harm and ensure a safe, productive
workplace. In addition, it protects employees from discrimination or
retaliation for work missed to seek protections from violence or
harassment.
For
more information about the Workplace Violence Prevention Act or other employment law issues,
please contact
Kevin Ceglowski at
kceglowski@poynerspruill.com or 919.783.2853 or
Susie
Gibbons at
sgibbons@poynerspruill.com or 919.783.2813.
Top
|
