An effective compliance program must have a mechanism for enforcing the rules. During any investigation by the government or DMERC, a home care company's commitment to legal compliance will be evaluated, in large part, by looking at its disciplinary procedures. How severe is the discipline? How effective? How frequent?
If the feds are looking at you, your contention that your compliance program is working must be supported by evidence that you have, in fact, disciplined transgressors. This point is often misunderstood by HME companies. Discipline is not limited to censure, financial penalties or termination. Re-education, notations in personnel files and other forms of minor chits also count as discipline.
Whenever someone violates a policy or protocol, appropriate discipline is required. It is just as important to discipline minor or first-time offenses as major transgressions for two reasons. First, the government wants to see evidence that a company holds its people accountable. Second, repeated mistakes can be just as dangerous as a major error.
Repeated mistakes may indicate a poor attitude or a general unfitness for the job, both of which can lead to major problems. Further, incorrect claims submissions can become “false claims” subject to major fines and penalties when a company submits claims with “reckless disregard” as to their accuracy.
So, it is important to allow and even encourage your compliance system to catch minor errors. It is equally important to discipline the transgressor with admonishment, education, written warnings or, if errors are repeated, more severe discipline.
I strongly recommend that companies consider an employee's failure to report problems or repeated mistakes as a rather severe violation of company rules. Effective reporting is the backbone of effective compliance. Education and re-education is needed to emphasize that a company cannot improve unless the inevitable mistakes that everyone makes are caught and addressed. “Failure to report” must result in some form of discipline.
Similarly, it is important to require supervisors to do their jobs and, as part of their jobs, to catch and address both mistakes and reckless or intentional bad behavior. So a “failure to supervise” should be disciplined at least as severely as is the mistake or wrongdoing.
After all, a compliance program can never be successful if the only person who takes it seriously is the compliance officer. Accountability is the key to success — for those who transgress, those who observe the problem or are suspicious, and those who could have caught the problem or minimized it with adequate supervision.
Appropriate forms of discipline might include re-education, remedial exercises, written warnings, restructuring of duties, enhanced oversight, loss of vacation days, financial penalties, suspension or termination. Different types of violations should result in different levels of discipline, with repeated problems resulting in increased penalties.
Home care companies with employees under contract or independent contractors should consider requiring compliant behavior as a contractual obligation. This is particularly valuable for a company's exempt personnel. Thus, coding, kickbacks or sexual harassment would become breach-of-contract issues.
Finally, home care companies should communicate clearly that self-disclosure is a valued part of their compliance programs. Make clear to personnel that reporting mistakes they themselves make will be a strong mitigating factor in the event of any violation of policies or legal rules.
However, also state clearly that the value of such self-reporting will depend on whether you are already investigating the problem and whether it was isolated or repeated, willful or merely negligent, and so forth. Above all, don't forget to make clear, in writing, that self-reporting will not result in immunity, although it will be an extremely important factor in the employee's favor.
Materials in this article have been prepared by the Health Law Center for general informational purposes only. This information does not constitute legal advice. You should not act, or refrain from acting, based upon any information in this presentation. Neither our presentation of such information nor your receipt of it creates nor will create an attorney-client relationship.
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 ncaesar@healthlawcenter.com or by telephone at 864/676-9075.
The ROPE Ladder
Rung 1: Articulate the way you want things to run, and note how they run now. Then, tweak your systems as necessary to comply with “The Rules.”
Rung 2: Teach your operating systems to your employees.
Rung 3: Implement a clear and simple method for dealing with problems — identify them, report them, investigate them and fix them.
Rung 4: Give your compliance staff resources to help them keep up-to-date with internal and external changes that may sometimes require you to refine your operating systems.
Rung 5: Monitor your operating systems to make sure they continue to run as you intended.
