C. Designation of a Compliance Officer and a Compliance Committee
1. Compliance Officer
Every nursing home provider should designate a compliance officer to serve as the focal point for compliance activities.79 This responsibility may be the individual’s sole duty or added to other management responsibilities, depending upon the size and resources of the nursing facility and the complexity of the task. Designating a compliance officer with the appropriate authority is critical to the success of the program, necessitating the appointment of a high-level official with direct access to the nursing facility’s president or CEO, governing body, all other senior management, and legal counsel. 80 The officer should have sufficient funding and staff to perform his or her responsibilities fully.
Coordination and communication are the key functions of the compliance officer with regard to planning, implementing, and monitoring the compliance program. Particularly in a small facility, the compliance officer may need to rely on the expertise of several professionals within the facility to carry out all of his or her responsibilities. For example, the compliance officer may need the payment specialist to help with billing issues, the director of nursing to address quality of care issues, etc. At the same time, the compliance officer must retain the integrity and objectivity not to compromise the program in deference to one or more disciplines or departments.
The compliance officer’s primary responsibilities should include:
- overseeing and monitoring implementation of the compliance program;
- reporting on a regular basis to the nursing facility’s governing body, CEO, and compliance committee (if applicable) on the progress of implementation, and assisting these components in establishing methods to improve the nursing facility’s efficiency and quality of services, and to reduce the facility’s vulnerability to fraud, abuse, and waste;
- periodically revising the program in light of changes in the organization’s needs, and in the law and policies of Government and private payor health plans;
- developing, coordinating, and participating in a multifaceted educational and training program that focuses on the elements of the compliance program, and seeking to ensure that all relevant employees and management understand and comply with pertinent Federal and State standards;
- ensuring that independent contractors and agents who furnish physician, nursing, or other health care services to the residents of the nursing facility are aware of the residents’ rights as well as requirements of the nursing facility’s compliance program applicable to the services they provide;
- coordinating personnel issues with the nursing facility’s Human Resources/ Personnel office (or its equivalent) to ensure that (i) the National Practitioner Data Bank 81 has been checked with respect to all medical staff and independent contractors (as appropriate) and (ii) the OIG’s List of Excluded Individuals/Entities 82 has been checked with respect to all employees, medical staff, and independent contractors; 83
- assisting the nursing facility’s financial management in coordinating internal compliance review and monitoring activities, including annual or periodic reviews of departments;
- independently investigating and acting on matters related to compliance, including the flexibility to design and coordinate internal investigations (e.g., responding to reports of problems or suspected violations) and any resulting corrective action (e.g., making necessary improvements to nursing facility policies and practices, taking appropriate disciplinary action, etc.) with all nursing facility departments, subcontracted providers, and health care professionals under the nursing facility’s control;
- participating with facility’s counsel in the appropriate reporting of self-discovered violations of program requirements; and
- continuing the momentum of the compliance program after the initial years of implementation.84
The compliance officer must have the authority to review all documents and other information that are relevant to compliance activities, including, but not limited to, medical and billing records, and documents concerning the marketing efforts of the nursing facility and its arrangements with other health care providers, including physicians and independent contractors. This review authority enables the compliance officer to examine contracts and obligations (seeking the advice of legal counsel, where appropriate) that may contain referral and payment provisions that could violate the anti-kickback statute or regulatory requirements.
A small nursing facility may not have the resources to hire or appoint a full time compliance officer. Multi-facility providers also may consider appointing one compliance officer at the corporate level and designating compliance liaisons at each facility. In any event, each facility should have a person in its organization (this person may have other functional responsibilities) who can oversee the nursing facility’s compliance with applicable statutes, rules, regulations, and policies. The structure and comprehensiveness of the facility’s compliance program will help determine the responsibilities of each individual compliance officer.
2. Compliance Committee
The OIG recommends that a compliance committee be established to advise the compliance officer and assist in the implementation of the compliance program.85 When developing an appropriate team of people to serve as the nursing facility’s compliance committee, a facility should consider a variety of skills and personality traits that are expected from those in such positions.86 Once a nursing facility chooses the people that will accept the responsibilities vested in members of the compliance committee, the nursing facility needs to train these individuals on the policies and procedures of the compliance program, as well as how to discharge their duties.
The committee’s functions may include:
- analyzing the legal requirements with which the nursing facility must comply, and specific risk areas;
- assessing existing policies and procedures that address these risk areas for possible incorporation into the compliance program;
- working with appropriate departments to develop standards of conduct and policies and procedures to promote compliance with legal and ethical requirements;
- recommending and monitoring, in conjunction with the relevant departments, the development of internal systems and controls to carry out the organization’s policies;
- determining the appropriate strategies and approaches to promote compliance with program requirements and detection of any potential violations, such as through hotlines and other fraud reporting mechanisms;
- developing a system to solicit, evaluate, and respond to complaints and problems; and
- monitoring internal and external audits and investigations for the purpose of identifying deficiencies, and implementing corrective action.
The committee also may undertake other functions as the compliance concept becomes part of the overall nursing facility operating structure and daily routine. The compliance committee is an extension of the compliance officer and provides the organization with increased oversight. The OIG recognizes that some nursing facilities may not have the resources or the need to establish a compliance committee. However, when potential problems are identified, the OIG recommends these nursing facilities create a ‘‘task force’’ to address the particular problem. The members of the task force may vary depending upon the issue.
II. Compliance Program Elements
A. The Seven Basic Compliance Elements
B. Written Policies and Procedures
C. Designation of a Compliance Officer and a Compliance Committee
D. Conducting Effective Training and Education
E. Developing Effective Lines of Communication
F. Auditing and Monitoring
G. Enforcing Standards Through Well-Publicized Disciplinary Guidelines
H. Responding to Detected Offenses and Developing Corrective Action Initiatives
III. Assessing the Effectiveness of a Compliance Program