Nursing Home Compliance Plans are Mandatory Under ACA
Health care reform legislation includes statutory provisions requiring nursing homes to have a compliance and ethics program in place. The compliance program must be effective in preventing and detecting criminal, civil, and administrative violations and in promoting quality of care. DHHS and OIG were required to develop regulations setting forth the requirements for a nursing home compliance program within 2 years of the enactment of the ACA. those regulations have not yet been released. However, the statutory mandate is in place and is not dependent upon the issuance of regulations. Nursing home providers should not make the mistake of ignoring the statutory mandate due to the lack of regulatory guidance. The OIG has issued guidance on what should be addressed in a nursing home compliance plan. There is plenty of existing guidance out there to demonstrate the elements that should go into an effective compliance program.
A “compliance and ethics program” is defined in Section 6102 of PPACA. The definition provides a basic structure for what should be included in the program. The basics elements described in the statute mirror the requirements in the Federal Sentencing Guidelines which established the original basic requirements that effective compliance programs should contain. Based on the statutory definition, a compliance program should include:
- compliance standards and procedures that are reasonably capable of reducing the prospect of criminal, civil, and administrative violations;
- a high-level manager assigned responsibility to oversee compliance with the standards and procedures;
- allocation of sufficient resources and authority to assure that the compliance program can be operated;
- systems to avoid the Provider delegating authority to individuals who have a propensity to engage in criminal, civil, and administrative violations;
- a system to effective communicate compliance standards and procedures to all employees and other agents, such a structured training programs, compliance publications and the like;
- reasonable steps to proactively monitor compliance with its standards and to detect potential infractions;
- a system to permit and encourage reporting of potential violations without fear of retribution;
- s system to identify and address potential compliance risk areas;
- consistent enforcement at all levels of the organization through appropriate disciplinary standards;
- reasonable steps to respond to detected infractions including investigation process and corrective action;
- periodic reassessment of the compliance and ethics program to identify gaps and to changes necessary to maintain an effective compliance process.
The above are the minimum requirement and guiding components of an effective compliance program. The program will require much more detail to appropriately address the compliance issues that are specific to the particular organization. Nursing providers should avoid using “pre-canned” compliance policies. Granted, some of the language in policies and procedures can be somewhat uniform across provider types. However, it is critical that the provider go through its own process to create a system that is unique to its own operations and set of risks. Simply adopting compliance policies is missing the forest through the trees. Certain policies must be in place in order for there to be an effective compliance program. But a c
ompliance program is not a set of policies. Rather, it is an ongoing operating system to detect, prevent and address the compliance risk that is specific to the organization. Policies on the shelf will do more harm than good if the processes contained in those policies are not made operational on an ongoing basis.
John Fisher is a health care attorney with over 25 years of experience in health care compliance. He is certified in health care compliance by the Health Care Compliance Association. John has assisted a variety of healthcare providers, including numerous nursing facilities in the creation of compliance programs and in investigation of detected compliance issues. John can be contacted through the “Contact” page in this website.
