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IMPLEMENTING NYS’ MANDATORY COMPLIANCE PROGRAMS A YEAR LATER:

OMIG AND PROVIDER PERSPECTIVE

HCCA Annual Compliance InstituteApril 20, 2009

James D. Horwitz, Esq.Vice President, Corp. ResponsibilityGlens Falls Hospital, Glens Falls, NY

Robert A. Hussar, Esq.First Deputy

NYS Office of Medicaid Inspector General

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The fine print

• Personal opinions and ideas for collegial discussion

• Acknowledgement-ideas and some materials from many sources-errors my own

• My assumption-usually it’s the “good guys” who attend these programs

• If you have a question (unless you are a lawyer) someone else probably wants to know the answer

• If you find these slides useful, please use them

The fine print(from the provider’s perspective)

•Not here to sing “Kumbaya” with OMIG but some of survey responses were quite interesting.

•Survey provides one tool of assessing OMIG and may not be representative of the day-to-day issues that have been expressed to membership organizations representing various segments of the health care industry such as hospitals, nursing homes, and home health care agencies.

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Mandated Provider Compliance Programs

Every provider of medical assistance program items and services ….shall adopt and implement an “effective”compliance program

- Social Services Law § 363-d

“. . . to organize provider resources to resolve payment discrepancies and detect inaccurate billings, among other things, as quickly and efficiently as possible, and to impose systemic checks and balances to prevent future recurrences.”

Social Services Law § 363-d

EFFECTIVE COMPLIANCE

PROGRAMS WILL PREVENT AND DETECT

FRAUD AND ABUSE

LEGISLATIVE EXPECTATION:

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Compliance Regulations• Published January 14th (draft), June 24th (adoption)

Effective July 1st Enforcement October 1st !!!

• Requires:

– those subject to Articles 28 and 36 of the Public Health Law;

– those subject to Articles 16 and 31 of the Mental Hygiene Law; and

– those that order services or supplies or receive reimbursement, directly or indirectly, or submit claims for at least $500,000 in a year …

to adopt/implement an “effective” compliance program.

• Annual certification

• 48 responses

–88% from hospitals

–Remainder long term care, day treatment, behavioral health

–40% NYC area; 60% throughout remainder of state

Survey sent to memberships of Healthcare Association of New York

State (HANYS) and Greater New York Hospital Association (GNYHA)

Survey Monkey tool

used

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What is the total revenue of your organization?

How many employees does your organization have?

What Best Describes Your Program in 2008.

What Best Describes Your Program in 2009.

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The Survey reveals that most hospitals have not made material changes in their Compliance Programs as a result of the OMIG’s October 2009 Regulations. This may be reflective of the fact that hospital compliance programs have matured during the 12 or so years since the OIG issued its first Hospital Guidance. In juxtaposition schools have been scrambling to institute programs in response to the regulations

CMS

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Where Does the Office of the Medicaid IG Fit?

• Audit work/recoveries

• Investigations and Criminal referrals

• Enforcement of Conditions of Participation and Quality as basis for payment

• Exclusion/penalty authority-individual, entity

• Integrity plans

• Mandatory compliance plans and Compliance Guidance

The Survey reveals more and more audits with an attendant increased cost in addressing same. Audit repayments remain relatively stable although with an increase at the higher end.

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If you underwent OMIG audits, what was the average cost per audit, including FTE time and

external resources?

•‘07 – most did not track; those that did anywhere from $15k - $100k per audit

•’08 – more track; those that did anywhere from $2k -$167k (1 response was 2 FTE plus the $167k legal expenses)

•’09 – tracked as per ’08: anywhere from $10k - $300k(1 response was 3 – 4 FTE plus $170k legal expense)

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If there were audits, did you find:

•92% found OMIG “reasonable and fair”;

•38.5% found “not knowledgeable about health care operations.”

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Provider self-disclosure guidance

Benefits

• Exemplify character of provider

• Demonstrate effectiveness of compliance program

• Possible:

–Flexibility of provider review

–Forgiveness of interest for a pre-determined period

–Extended payback period

–Avoidance of sanctions and/or operating under a CIA

Have you used the OMIG self-disclosure protocol. If so, what

amount was repaid?

If there was a self-disclosure, did you find:

100% found OMIG “reasonable and fair”!

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GNYHA is proud of the productive relationship we have developed with the OMIG, and we appreciate the OMIG's accessibility and interest in hospitals' concerns. While the voluntary survey used in this presentation is one positive tool in assessing provider relations with the OMIG, it does not, in our view, provide a thoroughly representative impression of the provider experience with the OMIG.

GNYHA is in continual day-to-day contact with its members, and we regularly hear concerns that indicate a different experience from that expressed in this survey. Indeed, many of our members experience significant frustrations with the OMIG, which they and GNYHA continue to communicate to the OMIG. GNYHA looks forward to our ongoing work with the OMIG as we attempt to resolve these issues together.

GNYHA COUNSEL’S OFFICE

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OMIG Review

• 3 Stages:

• Certification

• Preliminary

• Deep dive

OMIG Compliance Review

T

REVIEW A

A L

L K

K

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DEMONSTRATING AN EFFECTIVE COMPLIANCE

PROGRAM

• THE PROGRAM MEETS THE STATUTORY REQUIREMENTS (Structurally)

• THE PROGRAM WORKS (Operationally)

–CULTURE

–PROCESS

–OUTCOMES

• THE PROGRAM MEETS THE STATUTE

–STRUCTURE

• Mandatory 8 Elements• OMIG Risk Areas• Compliance Officer / Committees / Hotline

DEMONSTRATING AN EFFECTIVE COMPLIANCE

PROGRAM

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Provider Compliance Programs - Elements

Written policies and procedures.

1. An employee vested with responsibility for day-to-day

compliance program operation.

2. Training and education of all affected employees and

persons.

3. Communication lines to the responsible compliance

position.

4. Disciplinary policies to encourage good faith compliance

program participation.

5. A system to routinely identify compliance risk areas.

6. A system for responding to compliance issues as they

arise.

7. A policy of non-intimidation and non-retaliation for good

faith compliance program participation.

Has OMIG requested proof of your compliance program?

Other: Audit financial statements, management letter comments and internal control documents, organizational charts

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Supplemental Guidance

8 elements plus …..

• Credentialing

• Mandatory Reporting of Adverse Events

• Governance *

• Quality *

* Raises Compliance

visibility/responsibility in both areas.

It’s NOT JUST about Recoveries

Quality and Enforcement

• Has there been a systematic failure by management and the board to address quality issues?

• Has the organization made false reports about quality, or failed to make mandated reports?

• Has the organization profited from ignoring poor quality, or ignoring providers of poor quality?

• Have patients been harmed by poor quality or been given false information?

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Does the CO attend quality assurance/improvement

meetings or receive information regarding quality of care?

Does the answer to the above reflect a change in response to

the OMIG regulations?

DEMONSTRATING AN EFFECTIVE COMPLIANCE

PROGRAM

• THE PROGRAM MEETS THE STATUTE

• THE PROGRAM WORKS

– CULTURE

– PROCESS

– OUTCOMES

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Who is signing or will sign the annual compliance certification form found on the NYS OMIG

website?

Has OMIG requested to interview members of the Board

regarding your compliance program?

Has OMIG requested to interview members of senior management regarding your

compliance program?

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THE OMIG HAS INDICATED THAT A YEAR FROM NOW, THE ANSWERS TO THESE QUESTIONS WILL BE VERY DIFFERENT. SIGNIFICANT EMPHASIS WILL BE PLACED ON THE CULTURAL CLIMATE OF COMPLIANCE AS EVIDENCED BY INTERVIEWS WITH BOARD MEMBERS, SENIOR LEADERS AND FRONT LINE STAFF.

Culture

Support

Awareness

Transparency

OMIG Compliance Review

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It is the large group of middle managers who are the key to bridging the chasm between

legal requirements and compliance

THE ROAD TO FRONT LINE STAFF:

�Demonstrated commitment by Board, Senior and General Management�Continuous education�Departmental Monitoring Plans�Integration into the day-to-day fabric of the organization’s operations

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TONE AT THE TOP – THE BEST

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Is there a full time Compliance Officer?

Who does the CO report to?

Does the answer to the above reflect a change in response to

the OMIG regulations?

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How many full time dedicated employees support the

compliance function (including the CO)?

Since the promulgation of the OMIG regulations, does the

above answer reflect:

Culture

• Element 1: Polices and procedures –who created?

–how distributed / explained?

–how often?

• Element 2: CO and committees–who?

–how?

– resources / authority?

–other responsibilities?

–attendance/frequency?

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• Element 3: Training / Education

– Method

– Message

– Frequency

• Element 4: Open lines of communication

– Tone at top

– Recognition of challenges

– Follow-through

Culture

• Element 5: Disciplinary Policies

– communicated

– imposed

–proportional for offense / offender

• Element 6: Risk Analysis / Review

–planned

– completed

– reported

Culture

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• Element 7: Responding to Issues

– timely

– thorough

– revisited

• Element 8: Non-intimidation / Non-retaliation

Culture

DEMONSTRATING AN EFFECTIVE

COMPLIANCE PROGRAM

• THE PROGRAM MEETS THE STATUTE

• THE PROGRAM WORKS

– CULTURE

– PROCESS• Integration• Assessment and audit• Corrective action

– OUTCOMES

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OMIG Compliance Review

Provider Identification of Risk Areas

� Risk Assessments

� Audits

� Internal

� External

� Conflicts of Interests

� Corrective Action

Responding to Compliance Issues

� Prompt Investigation

� Proper Mandatory Reporting

� Self-Disclosures

OMIG Compliance Review

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• THE PROGRAM MEETS THE STATUTE

• THE PROGRAM WORKS

– CULTURE

– PROCESS

– OUTCOMES• Mission• Integrity• Repayments• Disclosures• Quality issues addressed

DEMONSTRATING AN EFFECTIVE

COMPLIANCE PROGRAM

PROGRAM INTEGRITY ON THE FRONT END

REQUIRE, RECOMMEND, REVIEW, REWARD

~EFFECTIVE PROVIDER COMPLIANCE PROGRAMS ~

NY-mandatory “effective” compliance programs include:

• credentialing, background and exclusion/sanctions check• risk assessments, audits and data analysis, remedial measures • response to issues raised through hotlines, employee issues • disclosure to state of overpayments received, when identified

- 4Rs OF PREVENTING FRAUD AND ABUSE

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How should OMIG determine whether compliance failures are

indicative of an ineffective compliance program?

• How many failures?

• What kind of failures?

• What about efforts / accomplishments?

• What about the effective performance of the organization’s core mission?

Effective?

�

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Attitude is Everything!

• Anger

• Denial and Isolation

• Bargaining

• Depression

• Acceptance

It takes less time to

do a thing right

than it does to explain why

you did it wrong

- Henry Wadsworth Longfellow

A Couple of Final Thoughts …..

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“The next level of motivation, synonymous with self-discipline, is when I do something on my own because I believe I should do it, even if I don’t feel like it. Nobody is making me do it. I do it because I believe I should . . . People are better motivated by values than by compliance.”

If Disney Ran Your Hospital

Doing the Right Thing.

FREE STUFF!

• Model compliance programs-hospitals, managed care (coming soon)

• Over 1000 provider audit reports, detailing findings in specific industry

• Annual work plans (issued in April)

• New York excluded provider list

• Self-Disclosure protocol

• Corporate Integrity Agreements

• Listserv

www.omig.state.ny.us

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Board Educati0n Critical

QUESTIONS???