4/1/2015
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Audrey Andrews, Senior Vice President and General Counsel, Tenet Healthcare
Vanessa Benavides, Chief Compliance Officer, Tenet Healthcare
Tamara Forys, Senior Counsel, HHS‐OIG
Tony Maida, Partner, McDermott Will & Emery
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Overview What is important in evaluating whether to exclude companies or executives, require a CIA, or reserve?
What the evolution of CIA requirements means for your compliance program today?
What steps should your organization take now to help prevent or mitigate a CIA in the future?
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Part I: CIA and Exclusion Decisions OIG’s Role in False Claims Act Cases
Engaging with OIG
What does OIGconsider?
Non Binding Criteria
Exclusion
Reservation
CIA/IA
Individual Liability
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OIG’s Role in FCA Cases Health care settlements with DOJ often give rise to OIG exclusion authorities.
Individuals and entities engage with the OIG separately.
Enter into Corporate or Individual Integrity Agreements (CIA/IA) in exchange for waiver of release of OIG certain exclusion authorities.
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OIG’s Role in FCA cases OIG and DOJ work together to settle health care matters OIG Agents often involved in investigations
OIG Counsel provide agency support
Only OIG has authority to release exclusion authorities
Settlements are typically signed by DOJ and OIG
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Engaging with OIG Engage with the OIG as early as possible.
Fruitful discussion depends on facts (i.e., civil‐only resolution? criminal charges? other agency sanctions?)
• Mandatory exclusion CANNOT be waived by the OIG
• Discussions with OIG primarily forward‐looking
• Focused on current and future compliance program
• May be relevant to discuss corporation, subsidiaries, and/or individuals
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OIG has three options:
• By agreement or through regulatory process
Exclusion
• In the settlement agreement
Reservation
• of OIG’s permissive exclusion authority in exchange for a CIA or an IA
Release
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What does OIG Consider? Non‐binding 1128(b)(7) Criteria
Since 1997, OIG has used these to evaluate whether to impose a permissive exclusion or release 1128(b)(7) in exchange for an IA or CIA.
In June 2014, OIG solicited comments on how to revise the criteria.
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Non‐binding 1128(b)(7) CriteriaCategories
The circumstances of the misconduct and seriousness of the offense;
The response to the allegations;
The likelihood that the conduct or other fraud will occur again; and
Financial responsibility.
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Exclusion, Reservation, or CIA Exclusion
Agree to a term of exclusion
Often included in FCA settlement
Length of Exclusion based on factors in 42 CFR 1001.901
Reservation OIG reserves exclusion authority in the settlement agreement
CIA/IA and Release Corporate Integrity Agreement
Integrity Agreement
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Individual Liability Administrative enforcement actions against individuals
CIA provisions focused on individuals
Examples
Civil Monetary Penalties
Exclusion
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Mickey Mouse Hospital Hypo Goofy, a former biller for Mickey Mouse Hospital, filed a qui tam against the hospital alleging:
Certain MMH doctors are performing medically unnecessary invasive cardiac procedures;
MMH’s biggest cardiac surgeon, Dr. Duck, has an ownership interest in the distributor that sells the stents used in the hospital;
Various doctors also received lucrative medical director contracts for no‐show jobs, orchestrated by the former CEO Cruella DeVille.
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Part II: CIA Evolution
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CIA Purpose Originally: To establish compliance program
Now:
To provide assurance to OIG that entity’s compliance program is active after significant investigation/settlement through monitoring
To require certain changes or improvements to the compliance program
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CIAs by the Numbers In the past 5 years, the OIG has entered into over 200 CIAs and IAs.
35 have been with Individuals or Small Practices
29 with Hospitals
18 with Pharmaceutical Manufacturers
In the past year, OIG has signed 50 CIAs/IAs
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CIA Types Corporate Integrity Agreement Large Organization
Mid‐size Business
Integrity Agreement Small Business/Physician Practice
Individual
Certification of Compliance Agreement Discontinued after 2008 Open Letter
Specialized CIA Quality of Care
Arrangements Review
Marketing
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OIG Approach to Monitoring OIG monitor assigned to each CIA
Assist providers in implementing compliance measures and practices that make sense for their business models
Enforce the terms of the CIA
Open communication is key
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Requirements Compliance Officer
Certifications
Code of Conduct
Policies and Procedures
Risk Assessment
Training
IRO & Reviews
Hotline
Ineligible Persons
Reportable Events
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Compliance Officer Qualifications
Member of senior management
Who does the CO report to?
Independent from GC and CFO
How do CO and GC interact on compliance?
Board access
Job duties
What if your compliance officer wears multiple hats?
Certification of CIA reports
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Tone from the Top Board Compliance Committee
Board resolution
Executive Compliance Committee
Executive and Management Certifications
Why: Make everyone have skin in the game
Board
C‐suite
Key Management
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Code of Conduct Employee distribution and acknowledgment
Set tone and give mission statement
Practical advice?
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Policies and Procedures Claims, Arrangements, and Quality
OIG may change based on underlying case
Available to employees
Review yearly for updates
Practical advice?
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Training Old model: Specific hours requirement and certify each covered person’s completion
New:
Large entity: Training plan developed by entity reviewed and approved by OIG monitor
Small entity/individual:
Hours requirement
Certain online courses or seek approval for others
Practical advice on effective training?
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Risk Assessment Reflects current state of compliance practices
(1) a process for identifying and prioritizing potential risks;
(2) developing an annual work plan to evaluate, including internal auditing and monitoring;
(3) developing action plans to remediate risk; and
(4) tracking results to assess the effectiveness of the risk assessment and internal review process, including any remediation efforts.
Requires compliance, legal, and appropriate department leaders involvement, at least annually.
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IRO Qualifications Claims Review
Expertise in industry sector
Arrangements Review
Expertise in Anti‐kickback Statute and Stark Law
Some recent CIAs have required law firm
Quality
Clinical expertise
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IRO/Monitor Selection Usually selected by entity with OIG veto
Quality Exception –Quality Monitor is selected by OIG
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Independent Monitor New development in DaVita CIA
Modelled after DPA and similar to Quality Monitors
Selected by OIG
Greater authority
Approval rights over certain transactions
Increased reporting to OIG
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IRO Reviews Arrangements Evolution:
Started with Legal IRO
Moved to Arrangements Review
Added Focus Arrangements Review
Systems Review
Legal IRO Re‐emergence in Halifax and King’s Daughters
DaVita Monitor
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IRO Reviews Claims:
General past approach: 50 claims
Current approach: More variable Focus on specific claim types
Multiple facilities or regions
Risk assessment
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Quality Reviews Past Approach‐ Nursing Home CIAs
Current Approach‐all types of providers
Quality Monitor Systems Review of quality systems
Response to quality of care issues
Quality Dashboard
Quality IRO review In addition to Quality Monitor or stand‐alone
Claims review for Medical necessity
Clinical expertise
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IRO Reviews Practical advice on using IROs?
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Hotline Confidential reporting mechanism
Practical advice?
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Ineligible Persons Screening LEIE and GSA
Removal if excluded or convicted but not yet excluded
Practical advice?
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Reportable Events Overpayments reporting
Reportable Event definition includes:
Substantial Overpayment
Matter that reasonable person would consider a probable violation of criminal, civil, or administrative laws applicable to any Federal health care program for which penalties or exclusion may be authorized;
Stark exception
Practical advice?
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Part III: Take‐aways for Compliance Programs Today
Evolving OIG decision‐making and CIA requirements show Govt’s expectations change over time
Compliance needs to evolve to reflect those changes and even stay ahead of the curve
Good practices developed today may be the ounce of prevention to prevent or mitigate a CIA in the future
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Know Your Data Predictive Analytics
Robust internal audit
Peer‐comparsions
Sunshine data
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Internal Inquiries Systematic process to review reported issues and make informed and timely decisions on resolution
Overpayments
SRDP or SDP
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Tenet’s Quality, Compliance & Ethics Program Charter The Charter is the governing
document for the program
Sets forth our department structure and operating guidelines.
Sets forth the scope of our ethics and compliance program.
Purpose of the Charter:
Support and maintain Tenet’s responsibility to Federal healthcare programs.
Supports a corporate philosophy that fosters the highest ethical standards and values compliance.
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Measuring Performance Drives Effectiveness
• Measures performance in key areas of compliance
• Scorecards for provider entities and compliance officers
• Scores are reported to Tenet management and Board
Compliance Scorecards
• Independently performed by Tenet’s internal audit team
• Measures program performance against Charter requirements
• Reported to Tenet’s Board
Annual Effectiveness
Review
• Component of Tenet’s annual employee engagement survey
• Gauges employees’ perception of compliance culture within their facility and Tenet overall
• Results are reported to Tenet management and Board
Culture of Compliance
Survey
Program Effectiveness: Leadership Expectations Tone at the Top: Tenet Board & Senior Management
Tone in the Middle: Hospital/Business Unit Leadership Teams
All managers have a heightened responsibility
All employees must understand and abide by Tenet’s Standards of Conduct
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Program Effectiveness: Tie Compensation to Ethics & Compliance Performance
• Every employee is annually evaluated on ethics and compliance
• Individual incentive compensation is also modified for positive and negative behaviors in quality, compliance and ethics
– Positive – going substantially beyond the Company’s high expectations
– Negative – falling short of the Company’s high expectations but not significant enough to result in employment actions
• Modifier process is explained during executive orientation
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