Don’t Rule Them Out

The Deficit Reduction Act of 2005 imposes new compliance requirements on health care “covered entities” that receive at least $5 million of aggregate Medicaid payments in a calendar year. Even if you do not cover Medicaid patients, the new DRA rules offer valuable guidance about your training and education activities.

Covered entities must educate their employees, contractors and agents about federal and state false claims laws and about the whistleblower protections under these laws. This education requirement extends to any person or company that provides Medicaid services on behalf of the covered entity, that performs billing or coding functions for it or is involved in monitoring the health care services it provides.

CMS is also requiring covered entities to distribute their compliance policies to their contractors and agents, to educate them about the fraud and abuse provisions of federal and state law, and to confirm that they understand how to report possible fraud or abuse to the covered entity and to state or federal government.

What information does the DRA require covered entities to provide to employees, agents and contractors? They are required to offer detailed written information about federal and state laws that address fraud and abuse, including the federal and state false claims acts; the laws and regulations about false claims remedies; the rules about whistleblower rights and protections; and how federal and state laws work together to detect fraud.

Also, covered entities are supposed to provide detailed written information about their own internal policies and procedures for detecting and preventing waste, fraud and abuse. These policies might include reporting mechanisms, audit and investigating procedures, hotlines, corrective action plans and so forth. In addition, covered entities are supposed to include all of this information in any employee handbooks or other documents that contain their personnel policies.

“But I am not a large medicaid supplier,” you say. “Why should I care about these DRA provisions?” This information can benefit all home care companies in two key ways.

First, these rules identify certain information the government considers essential for home care company compliance policies and training procedures. A company that implements these compliance policies and procedures can ensure that it has embraced the best available practices when it comes to such training and education.

The government will then find it extremely difficult to challenge the effectiveness of the health care company’s training and education content. An effective compliance program will reduce scrutiny as well as fines and penalties for any future problems.

There are four lessons every home care company should learn from the DRA Medicaid rules.

1. Learn and teach your state’s laws and regulations about waste, fraud and abuse. Virtually every state has specific rules concerning kickbacks, self-referrals, patient choice requirements, fee splitting or other fraud-busting protections.
2. Teach your people about the law. Don’t try to be a lawyer. Bring someone in to discuss these issues, create a script from well-written articles or get suggestions from your health care attorney. Also, give your personnel written materials about these rules for their study and ongoing reference.
3. Your company must create formal, real procedures for identifying and reporting potential problems, particularly those that might lead to waste, fraud or abuse. Equally important, you must actually teach these procedures to your personnel. Investigation and reporting policies do you no good if your employees don’t know they exist and how to use them.
4. You should insist that everyone who works on your behalf follow these rules. This includes employees, independent contractors, your medical director and other affiliated parties. Everyone whose work on your behalf could result in their spotting possible mistakes, waste, fraud or abuse should understand how to tell you about it and why it is important to do so.

Neil Caesar is president of the Health Law Center (Neil B. Caesar Law Associates, PA), a national health law practice in Greenville, S.C. He also is a principal with Caesar Cohen Ltd., which offers compliance training, outsourcing and consulting and the author of the Home Care Compliance Answer Book. He can be reached by e-mail at [email protected] or by telephone at 864/676-9075.