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Changes to US Sentencing Guidelines – What are they and how do you apply them to your Compliance Program?
Amendments to the US Sentencing Guidelines have been submitted to Congress and are expected to be effective by November 1, 2010. There are two changes that may have an effect on a medical group’s compliance programs.
First, the amendments discuss the “remediation” efforts required to ensure the effectiveness of a compliance program. More specifically the amendment mentions the reasonable steps to be taken in responding to criminal conduct, remedying harm resulting from the conduct, and preventing future criminal conduct. They further describe these steps to possibly include restitution to victims and self-reporting and cooperation with authorities. It also noted that an organization should conduct an assessment of their compliance program and make necessary changes to ensure that the program is effective; which may require outside personnel assistance.
Compliance programs that we see touch on response and prevention but sometimes lack in the area of detailing specific efforts. We recommend expanding this area of your program to ensure that your plan is considered “effective.” Not having a specific plan and having a lengthy delay in response can be problematic. In the eyes of the OIG, failure or delay to respond to an issue may threaten a group’s status as a trustworthy provider – and could impact their capability of participating in federal health program programs.
Next, the amendments discuss sentencing reductions and reporting relationships. This creates an exception to the rule that sentencing reductions would be prohibited to groups having an effective compliance plan if an organization’s “high level or substantial authority personnel are involved in the offense.” The exception is made and the sentence reduction is allowed if the group meets the following 4 criteria:
(1) The individual or individuals with operational responsibility for the compliance and ethics program have direct reporting obligations to the organization’s governing authority or appropriate subgroup thereof
(2) The compliance and ethics program detected the offense before discovery outside the organization or before such discovery was reasonably likely
(3) The organization promptly reported the offense to the appropriate governmental authorities; and
(4) No individual with operational responsibility for the compliance and ethics program participated in, condoned, or was willfully ignorant of the offense.
The original prohibition was thought to be too broad and that an exception would better encourage internal and external reporting of misconduct in suitable cases. While we hope that this particular amendment will never apply to your practice but it is important to be knowledgeable of these conditions prior to a situation of reporting criminal conduct presents itself.
So… here’s what we recommend you do to apply these changes:
1) Review your policy on responding to investigations of misconduct.
2) If you find that response efforts are not discussed in detail include specific steps that your organization will take to respond appropriately to the misconduct (below are possible steps):
a. Meet with legal counsel to develop a plan
b. Conduct a thorough internal investigation with personnel knowledgeable about the area in question and consult external consultants if necessary but be sure your Compliance Officer is a part of the team.
c. Take steps to stop the practice of the alleged misconduct
d. Devise a plan, process, and schedule to response in a timely manner
e. Be sure to have a clear paper trail of your efforts (document, document, document)
3) Include examples of possible remediation efforts in your compliance plan (below are some options):
a. Voluntary disclosure, self-reporting
b. Restitution of overpayments
c. Modification of processes and procedures and revision of Compliance Program
d. Discipline Plan
e. Re-Audit to Ensure that the problem has been fixed
4) Prevention
a. Establish a Standards of Conduct / Policies and Procedures and see that every employee has a copy and understands the importance of following
b. Educate!
c. Ongoing Auditing and Monitoring – Both internal and external audits are important as well as updating policies to ensure that you are following published rules from the payors.
ASK your ACE!
(Below are just a few questions our auditors have received this quarter)
Question: “I have noticed that the surgery schedule shows the type of anesthesia for cataracts as MAC, but our providers are marking general anesthesia on the record. Could this be a problem?”
Answer: “There is a National Coverage Determination for ‘General Anesthesia during Cataract Surgery’. This policy indicates that the use of general anesthesia could be considered reasonable and necessary ‘if, for particular medical indications, it is the accepted procedure among ophthalmologists in your community to use general anesthesia’. Based on this policy the answer to your question would be yes. Providers should be aware of the policy when providing services for cataracts and match the surgeon’s record and/or denote the medical indication that would require general anesthesia.”
Contributed by ACE Compliance Auditor – Debbie Farmer, CPC, ACS-AN
Question: If I place a central line for a case and afterward the surgeon wants it changed in the recovery room to a triple lumen so that the patient can go to the floor, is this separately billable?
Answer: My understanding is that a single lumen catheter is being replaced with a triple lumen catheter using a guide wire. This is not billable as a separate procedure.
Contributed by ACE Consultant – James Mallow, MD
CODING Tip – Discarded Drugs
In the MLN Matters article MM6711 the use of the JW modifier for billing discarded drugs is updated. The JW modifier should be used to identify unused drugs or biological from single use vials or single use packages that are appropriately discarded – except for drugs provided under the Competitive Acquisition Program for Part B.
MM6711 states: “For example, a single use vial labeled to contain 100 units of a drug, where 95 units are used and billed and paid on one line, the remaining 5 units will be billed and paid on another line using the JW modifier. The JW modifier is only applied to units not used. NOTE: Multi-use vials are not subject to payment for discarded amounts of drug or biological.”
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