This column is not to be substituted for legal advice. The writer, JANET K. FELDKAMP, practices in various aspects of health care, including long-term care survey and certification, certificate of need, health care acquisitions, physician and nurse practice, managed care and nursing-related issues, and fraud and abuse. She is affiliated with Benesch Friedlander Coplan & Aronoff LLP of Columbus, Ohio.Nursing homes have a new set of government guidelines to follow on fraud, abuse, and enforcement of federal nursing home regulations.Last fall, the Office of Inspector General (OIG) for the Department of Health and Human Services released its final “Supplemental Compliance Program Guidance” as a companion piece to the office's Compliance Program for Nursing Facilities (the “Compliance Guidance” released in 2000, 65 Fed. Reg. 14289).While the original Compliance Guidance broadly describes a viable compliance program, the Supplemental Compliance Guidance focuses on quality of care, the submission of accurate claims, the federal anti-kickback statute, and the handling of those issues in ongoing compliance programs.Point by Point by PointSpecifically, the OIG is telling nursing facilities to follow the straight and narrow by:▸ Implementing an interdisciplinary and comprehensive team approach to resident-care plans. The OIG specifically details the importance of participation by attending physicians in the care-planning process.▸ Complying with Medicare and Medicaid conditions of participation and having ongoing training on that topic.▸ Monitoring and implementing staffing plans that ensure proper coverage of resident care by competent individuals properly trained to handle the tasks to which they are assigned.▸ Promoting resident safety, including comprehensive accident-prevention measures. Facilities should also have clear guidance related to incident reporting, investigation, and outcomes. Contributing to safety are proper hiring and background checks of all employees and contractors in a facility.▸ Ensuring the proper management of medication, including the participation of consulting pharmacists.▸ Monitoring the appropriate use of psychotropic medications to ensure that these products are not used unnecessarily or inappropriately as chemical restraints. The OIG suggests that psychotropic medication should be subject to oversight by a collaboration of persons including attending physicians, the nursing staff, the medical director, the consulting pharmacist, and the administration of the facility.The OIG's Supplemental Compliance Guideline also focuses on the following areas concerning accurate submission of Medicare and Medicaid claims:▸ Proper reporting of resident case mixes with accurate Minimum Data Set documentation.▸ Making false claims by overusing therapies that increase Part B billing by increasing case mix severity. The OIG is also concerned with the opposite problem: therapy being withheld from residents who need it so a facility can save money on Part A.▸ Billing for restorative or personal care services that are insufficiently provided to residents or not at all.▸ Employing or contracting with entities or individuals already excluded from Medicare or Medicaid reimbursement.Finally, the new supplement focuses on potential risks to nursing facilities under federal anti-kickback laws and regulations. The OIG specifically cautions facilities to:▸ Avoid arrangements that provide for free goods or services to providers.▸ Ensure that all service arrangements are necessary and are paid for at fair market value and without regard to the volume or value of and federal health care program business.▸ Make sure all discounts received are proper and properly documented.▸ Carefully analyze hospice and hospital reserved-bed arrangements for potential kickbacks.▸ Avoid swapping arrangements whereby a supplier provides Part A items and services at a low rate in exchange for Part B referrals to the supplier.What Does the Additional Guidance Mean?The Supplemental Compliance Guidance has significant impact on nursing facilities. The guidance itself is just one part of the OIG's increasing efforts to crack down on fraud and abuse in the nursing home industry and to focus on quality of care in this environment.The recent implementation of the CMS's 5-Star Quality Rating system and increasing survey efforts also demand that nursing facilities focus on quality of care. The new guidance is just as important because it reveals how a nursing facility's failure to provide good resident care may give rise to criminal and civil fraud-and-abuse allegations.As an example of the government's position, on Aug. 28, 2008, in an agreement with a cited Washington, D.C., nursing facility, the OIG focused almost entirely on compliance programs and obligations. The OIG alleged that the facility failed to provide proper resident nutrition and hydration, care planning and nursing interventions, or assessments and evaluations of residents' needs. The OIG focused on the staff's failures to properly manage medication, prevent and manage falls, and prevent and treat pressure ulcers.The facility was required to pay the federal government damages of $1.7 million plus interest and to pay the District of Columbia damages of $320,650. The case and the agreement that came out of it demonstrate the importance of nursing facilities' focusing on quality of care.To avoid such government intervention, nursing facilities must focus on traditional compliance programs and policies but also greatly expand upon them to find ways to carefully monitor quality of care provided to the facility's residents. A facility's quality-care policies must come alive and become part of the facility's culture.The costs of implementing and maintaining an appropriate compliance program prior to a governmental investigation are far less than the payment of damages and costs associated with an investigation, civil fines, and imposition of a Corporate Integrity Agreement (CIA). The OIG has demonstrated its commitment to quality of care and facilities' compliance with nursing home regulations, and its recent CIA demonstrates what a facility might expect if it's found to be providing low quality care to its residents.The benefits of updating your facility's compliance program are great. First and foremost, implementing a comprehensive policy can deflect future criminal complaints and allegations. Further, a good compliance policy and proof that your facility follows it can avert civil fines and the imposition of a CIA.Such a program can do more than keep you out of trouble. It is also likely to enhance your facility's reputation, increase residents' and families' satisfaction, improve employee morale and retention, and hike occupancy.The OIG will remain vigilant in identifying fraud and abuse issues at facilities failing to meet quality of care standards or to implement effective compliance programs. Updating, maintaining, and implementing smart policies and procedures will not only avoid governmental interference and investigation, but will also aid your facility in creating and promoting a safe and healthy environment for residents and employees. This column is not to be substituted for legal advice. The writer, JANET K. FELDKAMP, practices in various aspects of health care, including long-term care survey and certification, certificate of need, health care acquisitions, physician and nurse practice, managed care and nursing-related issues, and fraud and abuse. She is affiliated with Benesch Friedlander Coplan & Aronoff LLP of Columbus, Ohio. Nursing homes have a new set of government guidelines to follow on fraud, abuse, and enforcement of federal nursing home regulations. Last fall, the Office of Inspector General (OIG) for the Department of Health and Human Services released its final “Supplemental Compliance Program Guidance” as a companion piece to the office's Compliance Program for Nursing Facilities (the “Compliance Guidance” released in 2000, 65 Fed. Reg. 14289). While the original Compliance Guidance broadly describes a viable compliance program, the Supplemental Compliance Guidance focuses on quality of care, the submission of accurate claims, the federal anti-kickback statute, and the handling of those issues in ongoing compliance programs. Point by Point by PointSpecifically, the OIG is telling nursing facilities to follow the straight and narrow by:▸ Implementing an interdisciplinary and comprehensive team approach to resident-care plans. The OIG specifically details the importance of participation by attending physicians in the care-planning process.▸ Complying with Medicare and Medicaid conditions of participation and having ongoing training on that topic.▸ Monitoring and implementing staffing plans that ensure proper coverage of resident care by competent individuals properly trained to handle the tasks to which they are assigned.▸ Promoting resident safety, including comprehensive accident-prevention measures. Facilities should also have clear guidance related to incident reporting, investigation, and outcomes. Contributing to safety are proper hiring and background checks of all employees and contractors in a facility.▸ Ensuring the proper management of medication, including the participation of consulting pharmacists.▸ Monitoring the appropriate use of psychotropic medications to ensure that these products are not used unnecessarily or inappropriately as chemical restraints. The OIG suggests that psychotropic medication should be subject to oversight by a collaboration of persons including attending physicians, the nursing staff, the medical director, the consulting pharmacist, and the administration of the facility.The OIG's Supplemental Compliance Guideline also focuses on the following areas concerning accurate submission of Medicare and Medicaid claims:▸ Proper reporting of resident case mixes with accurate Minimum Data Set documentation.▸ Making false claims by overusing therapies that increase Part B billing by increasing case mix severity. The OIG is also concerned with the opposite problem: therapy being withheld from residents who need it so a facility can save money on Part A.▸ Billing for restorative or personal care services that are insufficiently provided to residents or not at all.▸ Employing or contracting with entities or individuals already excluded from Medicare or Medicaid reimbursement.Finally, the new supplement focuses on potential risks to nursing facilities under federal anti-kickback laws and regulations. The OIG specifically cautions facilities to:▸ Avoid arrangements that provide for free goods or services to providers.▸ Ensure that all service arrangements are necessary and are paid for at fair market value and without regard to the volume or value of and federal health care program business.▸ Make sure all discounts received are proper and properly documented.▸ Carefully analyze hospice and hospital reserved-bed arrangements for potential kickbacks.▸ Avoid swapping arrangements whereby a supplier provides Part A items and services at a low rate in exchange for Part B referrals to the supplier. Specifically, the OIG is telling nursing facilities to follow the straight and narrow by: ▸ Implementing an interdisciplinary and comprehensive team approach to resident-care plans. The OIG specifically details the importance of participation by attending physicians in the care-planning process. ▸ Complying with Medicare and Medicaid conditions of participation and having ongoing training on that topic. ▸ Monitoring and implementing staffing plans that ensure proper coverage of resident care by competent individuals properly trained to handle the tasks to which they are assigned. ▸ Promoting resident safety, including comprehensive accident-prevention measures. Facilities should also have clear guidance related to incident reporting, investigation, and outcomes. Contributing to safety are proper hiring and background checks of all employees and contractors in a facility. ▸ Ensuring the proper management of medication, including the participation of consulting pharmacists. ▸ Monitoring the appropriate use of psychotropic medications to ensure that these products are not used unnecessarily or inappropriately as chemical restraints. The OIG suggests that psychotropic medication should be subject to oversight by a collaboration of persons including attending physicians, the nursing staff, the medical director, the consulting pharmacist, and the administration of the facility. The OIG's Supplemental Compliance Guideline also focuses on the following areas concerning accurate submission of Medicare and Medicaid claims: ▸ Proper reporting of resident case mixes with accurate Minimum Data Set documentation. ▸ Making false claims by overusing therapies that increase Part B billing by increasing case mix severity. The OIG is also concerned with the opposite problem: therapy being withheld from residents who need it so a facility can save money on Part A. ▸ Billing for restorative or personal care services that are insufficiently provided to residents or not at all. ▸ Employing or contracting with entities or individuals already excluded from Medicare or Medicaid reimbursement. Finally, the new supplement focuses on potential risks to nursing facilities under federal anti-kickback laws and regulations. The OIG specifically cautions facilities to: ▸ Avoid arrangements that provide for free goods or services to providers. ▸ Ensure that all service arrangements are necessary and are paid for at fair market value and without regard to the volume or value of and federal health care program business. ▸ Make sure all discounts received are proper and properly documented. ▸ Carefully analyze hospice and hospital reserved-bed arrangements for potential kickbacks. ▸ Avoid swapping arrangements whereby a supplier provides Part A items and services at a low rate in exchange for Part B referrals to the supplier. What Does the Additional Guidance Mean?The Supplemental Compliance Guidance has significant impact on nursing facilities. The guidance itself is just one part of the OIG's increasing efforts to crack down on fraud and abuse in the nursing home industry and to focus on quality of care in this environment.The recent implementation of the CMS's 5-Star Quality Rating system and increasing survey efforts also demand that nursing facilities focus on quality of care. The new guidance is just as important because it reveals how a nursing facility's failure to provide good resident care may give rise to criminal and civil fraud-and-abuse allegations.As an example of the government's position, on Aug. 28, 2008, in an agreement with a cited Washington, D.C., nursing facility, the OIG focused almost entirely on compliance programs and obligations. The OIG alleged that the facility failed to provide proper resident nutrition and hydration, care planning and nursing interventions, or assessments and evaluations of residents' needs. The OIG focused on the staff's failures to properly manage medication, prevent and manage falls, and prevent and treat pressure ulcers.The facility was required to pay the federal government damages of $1.7 million plus interest and to pay the District of Columbia damages of $320,650. The case and the agreement that came out of it demonstrate the importance of nursing facilities' focusing on quality of care.To avoid such government intervention, nursing facilities must focus on traditional compliance programs and policies but also greatly expand upon them to find ways to carefully monitor quality of care provided to the facility's residents. A facility's quality-care policies must come alive and become part of the facility's culture.The costs of implementing and maintaining an appropriate compliance program prior to a governmental investigation are far less than the payment of damages and costs associated with an investigation, civil fines, and imposition of a Corporate Integrity Agreement (CIA). The OIG has demonstrated its commitment to quality of care and facilities' compliance with nursing home regulations, and its recent CIA demonstrates what a facility might expect if it's found to be providing low quality care to its residents.The benefits of updating your facility's compliance program are great. First and foremost, implementing a comprehensive policy can deflect future criminal complaints and allegations. Further, a good compliance policy and proof that your facility follows it can avert civil fines and the imposition of a CIA.Such a program can do more than keep you out of trouble. It is also likely to enhance your facility's reputation, increase residents' and families' satisfaction, improve employee morale and retention, and hike occupancy.The OIG will remain vigilant in identifying fraud and abuse issues at facilities failing to meet quality of care standards or to implement effective compliance programs. Updating, maintaining, and implementing smart policies and procedures will not only avoid governmental interference and investigation, but will also aid your facility in creating and promoting a safe and healthy environment for residents and employees. The Supplemental Compliance Guidance has significant impact on nursing facilities. The guidance itself is just one part of the OIG's increasing efforts to crack down on fraud and abuse in the nursing home industry and to focus on quality of care in this environment. The recent implementation of the CMS's 5-Star Quality Rating system and increasing survey efforts also demand that nursing facilities focus on quality of care. The new guidance is just as important because it reveals how a nursing facility's failure to provide good resident care may give rise to criminal and civil fraud-and-abuse allegations. As an example of the government's position, on Aug. 28, 2008, in an agreement with a cited Washington, D.C., nursing facility, the OIG focused almost entirely on compliance programs and obligations. The OIG alleged that the facility failed to provide proper resident nutrition and hydration, care planning and nursing interventions, or assessments and evaluations of residents' needs. The OIG focused on the staff's failures to properly manage medication, prevent and manage falls, and prevent and treat pressure ulcers. The facility was required to pay the federal government damages of $1.7 million plus interest and to pay the District of Columbia damages of $320,650. The case and the agreement that came out of it demonstrate the importance of nursing facilities' focusing on quality of care. To avoid such government intervention, nursing facilities must focus on traditional compliance programs and policies but also greatly expand upon them to find ways to carefully monitor quality of care provided to the facility's residents. A facility's quality-care policies must come alive and become part of the facility's culture. The costs of implementing and maintaining an appropriate compliance program prior to a governmental investigation are far less than the payment of damages and costs associated with an investigation, civil fines, and imposition of a Corporate Integrity Agreement (CIA). The OIG has demonstrated its commitment to quality of care and facilities' compliance with nursing home regulations, and its recent CIA demonstrates what a facility might expect if it's found to be providing low quality care to its residents. The benefits of updating your facility's compliance program are great. First and foremost, implementing a comprehensive policy can deflect future criminal complaints and allegations. Further, a good compliance policy and proof that your facility follows it can avert civil fines and the imposition of a CIA. Such a program can do more than keep you out of trouble. It is also likely to enhance your facility's reputation, increase residents' and families' satisfaction, improve employee morale and retention, and hike occupancy. The OIG will remain vigilant in identifying fraud and abuse issues at facilities failing to meet quality of care standards or to implement effective compliance programs. Updating, maintaining, and implementing smart policies and procedures will not only avoid governmental interference and investigation, but will also aid your facility in creating and promoting a safe and healthy environment for residents and employees. AMDA's CommentsAMDA's comments on the proposed rule focused on physician's involvement in the development of resident care plans and therapy services.The final rule addressed AMDA's concerns regarding barriers to communication between nursing facilities and the attending physician in the resident's care plan process. The final rule states that nursing facilities can “facilitate participation by attending physicians, who often are not physically present at the nursing facility on a daily basis.”The guidance further states that facilities can “improve communication with physicians by providing advance notice of care planning meetings” and that “nursing facilities should evaluate, in conjunction with the attending physician, how best to ensure physician participation—whether via consultation and post-meeting debriefing, or telephone or personal attendance at meetings.” AMDA's comments on the proposed rule focused on physician's involvement in the development of resident care plans and therapy services. The final rule addressed AMDA's concerns regarding barriers to communication between nursing facilities and the attending physician in the resident's care plan process. The final rule states that nursing facilities can “facilitate participation by attending physicians, who often are not physically present at the nursing facility on a daily basis.” The guidance further states that facilities can “improve communication with physicians by providing advance notice of care planning meetings” and that “nursing facilities should evaluate, in conjunction with the attending physician, how best to ensure physician participation—whether via consultation and post-meeting debriefing, or telephone or personal attendance at meetings.”