Compliance as an Element of Employee Performance

Enforcing Standards Through Well-Publicized Disciplinary

Guidelines

Compliance & Employee Performance

• Essential element of effective compliance program, per OIG

• Two key elements:– Employees must abide by compliance

program requirements and applicable law– And understand the sanctions for failing to do

so– No different than coming to work on time or

carrying out their normal jobs properly

The Sanction Piece

• Each provider should engage its normal sanction or discipline process, per HR policies, for violations of the program– Both “content” violations (violation of policy or

applicable law)– And for failing to participate in compliance

program• Failing to attend training, honor applicable law,

reporting observed violations by others

Linkage Between Compliance and Human Resources

• Normal HR sanctions should apply

• You can simply incorporate by reference your existing HR policies in compliance program

• Or spell them out as part of your written compliance program

• Sanctions must apply equally to everyone regardless of title or value to company

OIG’s Guidance On This Issue

• Regardless of size, all SNFs must ensure employees understand importance of compliance

• Participation must be an element in employee evaluations

• Small facilities with no formal employee evaluation system should informally advise and make compliance part of evaluations

• Providers should sanction, and also reward, compliance performance/participation

OIG’s Guidance On This Issue

• Managers/supervisors should be empowered to sanction/reward employee participation in compliance

• Periodically train employees re compliance– At least annually– On applicable law & program requirements– And on the compliance program

Managers and Supervisors

• Company policy should require that managers/supervisors, especially those involved with direct patient care and claims billing:– Periodically discuss with employees and

contractors (PT, OT, billing consultants) both compliance requirements and legal requirements that apply to their jobs

Managers and Supervisors

– That strict compliance with both is an element of their job or contract performance

– That violations of either = discipline, up to & including termination of job or contract

• Managers should be disciplined for failing to do this OR to detect violations that reasonable diligence would have discovered.

• Managers who embrace compliance should be rewarded for doing so– Sort of compliance pay 4 performance

OIG: Provider Policies Governing Employee Performance

• Clearly spell out potential sanctions

• State that failure to comply = discipline

• That sanctions can range from oral warnings, to financial penalties, to termination

• While each case is fact-specific, sanctions should be applied as evenly & uniformly as possible

OIG: Provider Policies Governing Employee Performance

• Discipline may be appropriate for employee failure to detect & report violations if due to negligent or reckless conduct

• Should state who is responsible for determining proper level of discipline (i.e, manager, HR Director, Senior Mngt.)

• Range of possible sanctions must be well publicized to all employees & contractors

• And apply to all employees/contractors regardless of title, role or perceived importance

Responding to Detected Offenses

• Good Faith Allegations Should Be Subject to Good Faith Investigations– Avoid defensiveness – Do not be dismissive– Do not limit initial scope

• Internal /External Investigation?– Privilege to attach?– Magnitude/scope

Responding to Detected Offenses

• Maintain an investigative file– who investigated – what methods were used– copies of key documents and interview notes– a log of witnesses interviewed

• Analyze Findings– Not all findings are violations, but ...– Some findings may require corrective action– Seek advice

• Billing/reimbursement experts• Legal Counsel

Responding to Detected Offenses

• Take Corrective Action At Any Point– Prevent the destruction of documents or other

evidence relevant to the investigation– Compliance officer and/or committee use

investigation findings to evaluate whether other related problems may exist

– Remove any employees from the investigation whose involvement threatens to compromise the integrity of the investigation

• Classify Violations– State/Federal laws/regulations– Compliance program standards– Policies/procedures

Responding to Detected Offenses

• Response Strategy– Involve management/governing body as

warranted– Seek outside counsel advise as warranted– Initiate all indicated corrective actions

• Response Examples– “Reverse” revenue– Report to state/federal agencies as required– OIG “self-report”

Responding to Detected Offenses

• OIG Voluntary Self-Disclosure Protocol for Reporting Fraud/Abuse Violations– http://www.oig.hhs.gov/fraud/selfdisclosure.asp

• Proper determination of disclosure obligation requires careful analysis of the findings and the application of fraud and abuse laws to the findings

• Providers should carefully consider enlisting the assistance of specialty counsel who have actual experience in helping other providers make self-disclosure determinations

• OIG will likely investigate quality of provider’s investigation/findings in determining its own response, which can, and do, include enforcement actions– http://oig.hhs.gov/fraud/docs/openletters/OpenLetter4-15-08.pdf

Assessing the Effectiveness of Your Compliance Program

• Simple question: Is it working?– Are we avoiding compliance violations?– Are employees/contractors/owners

participating fully in compliance program?

• OIG lists this as a separate element of effective compliance programs

• But, really part of Auditing & Monitoring, covered in last month’s session– See ahca.org for last month’s materials/slides

Who Does the Assessing?

• Compliance officer &/or Committee either handle this, or coordinate it with:– Other employees, contractors, outside experts

(legal, accounting, billing, quality)

• Then report back to management, owners, Board of Directors for guidance on corrective measures

Your Materials

• We’ve provided a set of probes and questions to guide compliance officer &/or committee in evaluating whether the compliance program is working– Based on the two questions posed above– These are based on OIG suggestions and our

own supplemental questions– Develop ones that work for you

Board of Directors’/Governing Body Oversight of Quality of Care

• “Driving for Quality in Long-Term Care: A Board of Directors Dashboard”– http://www.oig.hhs.gov/fraud/docs/compliance

guidance/Roundtable013007.pdf• commitment to quality• processes related to monitoring and improving

quality of care• outcome measures for quality of care• challenges and opportunities in using a Quality of

Care Dashboard

Board/Governing Body Self-Evaluation

• Commitment – The directors can evaluate and demonstrate their

commitment, and their organization’s commitment, to providing quality resident care by responding to the following questions:

• Does the board receive regular reports on quality?• Do the board members understand the reports they receive?• Are board members receiving training on quality?• Is quality part of strategic and capital planning?\• Are adequate resources devoted to staff training and

retention?

Board/Governing Body Self-Evaluation

• Process – The directors can address identified risks and monitor

quality improvement through key structural processes designed to track and measure quality, and should evaluate the effectiveness of the following:

• Regular reports to the board on quality data and issues;• Frequent and focused board-level discussions of quality

reports;• Coordinated management response, with board oversight, to

identified quality problems;• Investment in staff retention, training, and competency.

Board/Governing Body Self-Evaluation

• Outcomes – Boards of directors use key outcomes to review the

actual performance of the organization on identified quality of care standards.

• How does management measure resident quality outcomes? • Is the data being consistently reported to the board in a

useful way?• What does year-over-year trended survey data indicate

regarding compliance with regulations? • What does the trended outcomes data for key quality

measures suggest with regard to quality of care provided?• What do satisfaction surveys submitted by families and

patients conclude about their facility experiences?• What does staff turnover rate data indicate regarding

retention and the ability to retain key facilities staff?