New DOJ Compliance Counsel Underscores Need for Compliance Plans
The Department of Justice (DOJ) announced that it had retained Hui Chen as its new Compliance Counselor on November 3, 2015. In her new role, Ms. Chen will be responsible for assisting the DOJ with establishing metrics to measure and evaluate the effectiveness of compliance plans adopted by health care providers.
Government resources are increasingly dedicated to battling health care fraud. Having a well-developed compliance plan is an important way for providers to discover and remedy wrongful billing practices, prepare for audits and defend against claims of intentional wrongdoing. The Office of Inspector General (OIG) has considered compliance efforts as a relevant factor in determining penalties for improper billing, including whether to exclude individuals and organizations from the Medicare program. In addition, having an effective compliance plan in place gives providers a strong argument for a reduction in fines should a payor identify overpayments.
All compliance plans must address the elements identified by the OIG as being crucial to compliance. These elements are:
- Written policies and procedures;
- Designation of a compliance officer and compliance committee;
- Conducting effective training and education;
- Developing effective lines of communication;
- Auditing and monitoring;
- Enforcement through disciplinary guidelines; and
- Responding to detected offenses and developing corrective action initiatives.
Although these elements can be addressed on paper, this alone will not necessarily result in an effective compliance plan as expected by the OIG. A compliance plan that is not appropriately tailored to an organization’s needs will not be properly implemented and will be damaging to an organization’s prospects in the event of an audit. In contrast, providers must demonstrate that their compliance plans are an organizational priority. Specifically:
- The compliance officer must be part of the organization’s upper-level management and be given appropriate resources and authority to implement the compliance plan;
- Employees at all levels of the organization must be trained on the compliance plan, be aware of how compliance affects their job functions, and be sanctioned for failing to comply with the compliance plan; and.
- When compliance activities discover wrongdoing, the organization must take aggressive steps to remediate the problem including, if necessary, repaying funds received as a result of wrongful billing activities.