Breaking Down the OIG’s First Industry-Specific Guidance

The HHS OIG recently issued its first Industry Segment-Specific Compliance Program Guidance, or ICPG, with many more expected. This first ICPG covers Skilled Nursing Facilities and Nursing Facilities.

Let’s review some of the highlights.

1. Quality of Care and Quality of Life

For decades, the OIG and other government enforcement agencies have emphasized the importance of the quality of care and quality of life for nursing facility residents.

When a nursing facility submits a claim to Medicare or Medicaid for reimbursement, it certifies the services were provided in compliance with all applicable statutes, regulations, and rules. If a nursing facility does not provide care consistent with professional standards of quality, or in an environment that promotes quality of life, claims for reimbursement may be considered false.

The ICPG provides the following examples of quality and related safety concerns that can lead to submission of false claims:

providing medically unnecessary or grossly substandard services
housing residents in unacceptable or dangerous living conditions
failing to provide residents with activities
failing to provide residents with needed psychiatric care

2. Billing Requirements

The ICPG states, “Ensuring compliance with Medicare and Medicaid billing requirements should be a core function of nursing facility compliance program operations.”

The OIG expects nursing facilities to be proactive in their oversight of billing compliance. This includes conducting regular reviews to ensure billing and coding practices are current and accurate, as well as performing regular internal billing and coding audits. Even if an entity makes an isolated billing error, that entity still has an obligation to repay the overpayment to avoid False Claims Act liability.

The ICPG specifically addresses the following risk areas associated with billing requirements:

SNF Prospective Payment System (PPS)
Value-Based Payment Models and Programs
Medicare Advantage and Medicaid Managed Care
Medicare Part D
Medicare Health Plan Enrollment for Nursing Facility Residents

Interestingly, the ICPG for nursing facilities also refers readers to a supplement on understanding reimbursement for nursing facilities, which can be viewed at https://oig.hhs.gov/documents/compliance/10039/nf-icpg-supplement.pdf.

3. Anti-Kickback Risks

The OIG’s General Compliance Program Guidance (GCPG) highlighted some of the risks associated with the Federal Anti-Kickback Statute (AKS) in the healthcare industry. The nursing facility ICPG provides many helpful and specific AKS risks to unique to nursing facilities. Among the specific risks highlighted by the OIG are:

Free (or Below Fair Market Value) Goods and Services
Discounts
Arrangements for Services and Supplies
Long-Term Care Pharmacy and Consultant Pharmacist Arrangements
Hospital Arrangements
Hospice Arrangements
Care Coordination and Value-Based Care Arrangements
Joint Ventures

The ICPG emphasizes that all referral relationships call for vigilance under the Federal AKS. The discussions in the ICPG not only highlight several risk areas for nursing facilities under this law, but it also provides excellent recommendations for mitigating those risks. OIG also stresses that nursing facilities should scrutinize the listed risk areas as part of their risk assessment, internal review, and monitoring processes.

CJ Wolf, MD, M.Ed. is a healthcare compliance professional with over 22 years of experience in healthcare economics, revenue cycle, coding, billing, and healthcare compliance. He has worked for Intermountain Healthcare, the University of Texas MD Anderson Cancer Center, the University of Texas System, an international medical device company and a healthcare compliance software start up. Currently, Dr. Wolf teaches and provides private healthcare compliance and coding consulting services as well as training.  