June 5, 2025 • 47 mins
Join Healthicity’s CJ Wolf and Compliagent’s Paige Pennington as they break down the first industry-specific compliance program guidance (ICPG) from the OIG—focused entirely on skilled nursing facilities.
Key Takeaways:
- Why the OIG prioritized SNFs
- Top risk areas flagged in the new guidance
- The evolving role of compliance in quality and contracting
- Actionable steps for aligning your risk assessments and audit plans
This episode is a must-listen for compliance professionals navigating the post-acute space.
You can reach out to Paige at ppennington@compliagent.com or via phone at 310-736-4972.
Thank you for listening! Please share, like, and subscribe.
If you'd like to see more compliance and auditing content feel free to follow us on social media.
Check out our resource center and weekly compliance newsletter for additional compliance and auditing content from our experts.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 00 (00:00):
Hello, welcome everybody to another episode of
Compliance Conversations.
I'm CJ Wolf with Healthicity.
And today we're going to betalking about some of the OIG
guidance.
I have a real expert here onsome of that information,
especially some of the recentICPG that was recently
(00:21):
published.
But before we get into ourtopic, let me tell you who our
wonderful guest is, PaigePennington.
Paige, welcome back.
I know you've been on thepodcast before.
Speaker 01 (00:30):
Thank you for having me.
Looking forward to speaking toyou at length about the OIG's
ICPG.
Speaker 00 (00:37):
Yeah, we're so excited to have you.
And you've probably done thisbefore, but it's probably been a
while for our guests.
So we'd love for you just totell us about yourself,
introduce yourself, what you do,kind of your background,
whatever you're comfortablesharing.
We'd love to hear that beforewe jump into the topic.
Speaker 01 (00:53):
Hi, everybody.
Thanks for tuning in today.
My name is Paige, as CJmentioned.
I'm a co-founder of acompliance consulting firm
called Compliagent.
We've been around since,goodness, 2010, 2011-ish.
We work with all types ofhealthcare providers on building
out their compliance programs,helping them maintain it.
(01:15):
Sometimes we get involved withoverseeing corporate integrity
agreements or serving asindependent auditors.
Our real Relationships with ourclients really depend on what
their compliance needs are.
Sometimes we meet folks thatare at the very beginning of
their compliance journey andsay, where do we start?
And other times we're gettingmore involved in a very
(01:35):
sophisticated model wherethey've been at it for a decade
or two and just want an outsiderperspective on compliance.
How do you think we're doing?
What can we improve?
So we meet our clients wherethey are across the healthcare
spectrum.
With that being said, though,my expertise is certainly in the
post-acute care side.
I work primarily with long-termcare facilities, skilled
(01:58):
nursing, nursing homes, homehealth hospice.
So Hence why today I'm going tobe focusing on the
industry-specific guidance forskilled nursing facilities,
because that is where I spendabout 85% of my time.
Speaker 00 (02:14):
Yeah, and we're so excited to hear from you.
And for those of you who'vebeen listeners and you partake
of a lot of the resources postedon Healthicity's website,
you'll see, maybe we can evenfind these links, webinars that
Paige has done with us.
She's an absolute expert inthis space and just one of the
nicest and best people to workwith.
(02:34):
So I highly encourage you toconsider her and their services.
They're great.
So Paige, let's jump into thisICPG.
And let me just kind of givethe folks some background.
Most of our folks arecompliance folks and audience,
so they already know this.
But as we all know, the OIG haspublished a new general
(02:56):
compliance program guidancedocument, which we've been
talking about for over a yearand a half, I think now.
But at the end of last year,they published their first ICPG.
They promised that they wouldpublish these industry
guidelines.
kind of sub segments of thehealthcare industry specific
guidance.
So, and that's what we're gonnatalk about.
And so Paige, tell us a littlebit about this recently updated,
(03:21):
you know, ICPG for nursingfacilities and what your initial
thoughts are on this.
Speaker 01 (03:28):
Yeah, I think it's telling that the OIG picked
skilled nursing as the industry,to focus on for their first
ICPG because we got the generalcompliance program guidance that
is broadly applicable to anytype of provider in the
healthcare side.
That could be adapted for largeorganizations, small
(03:50):
organizations, home health,hospice, skilled nursing,
hospitals.
And that came out in 2023 andthat was, you know, meant to be
what I would say provideragnostic, not focusing on anyone
and is very geared toward thoseseven elements of compliance.
And we knew that industryspecific stuff was coming.
But the fact that skillednursing got the first guidance,
(04:13):
I think tells you a little bitabout what the government views
as their priority list forenforcement.
Skilled nursing facilities havethe most recent guidance out
there.
So The previous round ofguidance was issued by OIG 1998
through 2008.
The skilled nursing guidancecame out in 2000 initially and
was supplemented in 2008,technically making this industry
(04:36):
the most recent guidance fromthe OIG.
So you would think that OIGwould naturally want to update
its guidance that they issued in1998 before they updated the
more recent 2008 guidancedocuments.
Speaker 02 (04:51):
Exactly.
Speaker 01 (04:52):
It's not the approach they took.
So, you know, there are, youknow, guidance documents for
hospice and labs that haven'tbeen touched since the 90s.
And those were not prioritized.
So I think that we will seemore enforcement in the skilled
nursing industry.
Bad for providers, kind of goodfor me as a consultant.
(05:15):
But, you know, I mean, it's...
It is definitely the tone of wehave concerns about this sector
of the industry more so thanother sectors.
The OIG recently updated itswebsite to specifically say that
other industry guidance forhospitals, clinical
(05:35):
laboratories, and MedicareAdvantage programs is expected
in 2025 with hospice and pharmato follow sometime later, 2026,
2027.
But Medicare Advantage doesn'teven currently have guidance,
period.
Not from the 90s, not from anytime.
So being prioritized overMedicare Advantage, which is a
(05:57):
huge payer program, issurprising and probably fairly
concerning for a lot of myskilled nursing clients.
So I would tell providers inthis sector of the industry, dot
your I's and cross your T's.
Speaker 00 (06:11):
Absolutely.
That's such a greatperspective, Paige, about and I
hadn't really thought about itthat way, that they did have,
the skilled nursing facilitiesdid have the most recent
published guidance in the oldmethodology, right, through the
Federal Register in 2008.
So yeah, interesting thatthey're visiting that one first.
Great, great perspective onthat.
So tell me what you think, werethere any surprises?
(06:36):
So maybe what was not asurprise?
What was a surprise when youfirst kind of read through the
ICPG?
Speaker 01 (06:43):
Yeah, I liked how the OIG approached the guidance
in their rebranding of theseolder documents and kind of
re-imagining how they'redivided.
I thought it was smart to pullout the seven elements so they
weren't repeating the samecontent in each
industry-specific guidancedocument.
So organizationally as a type Aperson, I'm like, oh, this
(07:06):
makes sense.
You have a general one thateveryone should look at, and
then you have risk-based programguidance that leaves out
largely the seven elements stuffand focuses just on the risk
specific areas that they hopeproviders are focusing their
training policies and monitoringand auditing efforts on.
(07:26):
So organizationally, I thought,good, it was a nice cleanup,
great.
The federal government isn'talways great at streamlining,
but I thought that this was avery appropriate way to
bifurcate those two guidanceapproaches
Speaker 03 (07:42):
That being said, the usual suspects are still there,
right?
Unknown (07:45):
We see risk areas in staffing and medication
management with a focus onpsychotropics and
antipsychotics.
Speaker 01 (07:54):
We see the mention of abuse and neglect as a
concern, and then obviouslyaccuracy of documentation to
support billing under theMedicare program.
So these were in the 2000documents.
the 2008 documents, they are inthis document.
And I suspect in 10 years or 15years from now, he'll be in the
next iteration as well.
So that stuff doesn'taltogether surprise me.
(08:17):
I think that they did a betterjob in this document of giving
practical examples versus citingderegulations and talking about
things in theory.
With each of these sections,they really did break down, this
is our concern, this is how wesee it happen, here are some
recommendations for what wethink you should be doing as
part of your compliance program.
So yeah, on that respect, okay,great, nice update.
(08:42):
There were a handful of topicsI was a little bit surprised to
see in this document and not anegative surprise and like, I
don't think this is an issue inthe industry.
But I was surprised to see itwas at the level of the OIG
feeling it was worth mentioning.
(09:03):
So, you know, some of thisstuff I was like, oh, this is,
you know, on the OIG's radar.
That's interesting.
Maybe I as a consultant toskilled nursing facilities
should call this stuff out alittle bit more and focus on it
more than I have historically.
So the first one, that I waskind of surprised to see was
(09:24):
this recognition paragraph aboutthe changing demographics and
the patient population, theacknowledgement that skilled
nursing facilities are taking onyounger populations with higher
acuity and also a lot of morebehavioral or mental health
needs than has historically beenthe case in the nursing
(09:46):
industry.
So, you know, I think to thegeneral public, they hear
nursing home and they stillthink that like grandma's going
to the nursing home so shedoesn't live by herself and they
treat it in their minds morelike a independent but assisted
living type of setting, not highacuity post-surgery with like
(10:08):
complex medical comorbidities.
And that's just not what theindustry is.
Like we are really seeing ahigh push on acuity, a ton of
behavioral and mental healthneeds.
And so I thought it was nicethat the OIG called that out,
albeit this is a guidancedocument.
So it's not like they solved aproblem for us by saying, here's
(10:28):
how to address this.
It's more like we're at leastacknowledging the problem or
acknowledging that you guys arefaced with these problems and
are becoming more akin to ahospital than the assisted
living or independent livingside.
So I thought that it wassurprising that they
acknowledged it in this documentbecause I wouldn't necessarily
(10:52):
say it's a compliance risk, butthey did tie it into the
requirements of participation.
specifically to the facilityassessment piece, which was
recently updated by CMS inAugust of 2024, and said, in
consideration of all of thesemore complex things that you
(11:13):
have to consider when you'readmitting your patients, make
sure that you have the capacityand ability and the resources to
provide appropriate services.
So if you are taking onpatients with behavioral needs
or mental health needs, makesure your staff is getting that
training.
So this really, I thinkdovetails with the idea of not
(11:35):
only sufficiency of staff bynumber, which we know is a whole
separate issue in the skillednursing industry, but also the
competency of your staff toappropriately care for the
resident population that you arechoosing to admit.
So I thought that was, youknow, consistent with some of
(11:56):
the stuff that we've seen fromCMS.
I didn't necessarily expect tosee it in this document as a
risk area of competency andcomplexity of the patient
population.
Speaker 00 (12:09):
Yeah.
And on that note, Paige, so itwas interesting to me, and maybe
you were going to talk aboutthis later, but they talk about
how, oh, there's lots ofturnover in staffing and nursing
facility.
Like they mentioned all ofthese hard things in the
industry, right?
And basically I just felt like,okay, they're pointing out the
obvious and they're just kind ofsaying, this is hard, but you
(12:31):
got to deal with it.
I don't, did you come away withthat?
It felt like I'm the staffing.
I
Speaker 01 (12:35):
think that is kind of the tone throughout this
document.
There are a few places wherethey give recommendations or
share.
These are what other providershave done that leave you as
successful solutions.
Speaker 02 (12:49):
Yeah.
Speaker 01 (12:49):
Certainly not in the realm of staffing.
I mean, Every nursing homeoperator nationwide is waiting
to see what the currentadministration does with the
proposed minimum federalstaffing mandate rule that is
going to roll out in pieces.
It's the shortage of qualifiednurses in all different levels,
(13:12):
RNs, LPNs, and your nursingassistants.
is a concern in the industry.
And it's not that people don'twant to hire these individuals.
It is literally that finding,hiring, retaining.
I don't have a perfectsolution.
Everyone wants to talk to meabout this and say, what should
(13:33):
we do?
And there's no like, here areyour six steps.
If you do this, you'll besuccessful and you'll never lose
a nurse again.
I wish it was that easy.
But yeah, a lot of timesstaffing comes up as it ties
into these risk areas.
but there's really no solutionhere.
It's like, do stuff to promoteretention.
And it's like, what is thestuff that you want us to do?
Speaker 00 (13:54):
Exactly.
Okay.
I'm glad I wasn't the only onewho kind of read it that way.
And sorry to interrupt.
Go ahead.
Any other like surprises thatyou were talking about?
Speaker 01 (14:03):
Yes, certainly.
Full of surprises.
Okay.
I have a few other areas thatare on my short list of
call-outs for this particularquestion I was anticipating.
The next one was related tocare planning and activities.
So care planning as a potentialrisk area was included in the
(14:24):
2008 guidance.
So not wholly surprising, butthe lumping it in with
activities was a little bit of anuance that I generally, again,
don't think of the OIG honingin on.
When I think of OIG, I'mthinking really high level, like
false claims, inaccuratebilling, anti-kickback.
(14:44):
I'm not thinking the OIG caresso much about person-centered
care.
And well, I retract thatstatement because they certainly
do because it's been, it wasreally woven throughout this
document and a lot of thequality areas they brought back
to align with CMS.
So I think the two agenciesreally are starting to mirror
(15:09):
each other in terms of thisguidance.
Now, aligning more with whatCMS pushed out in 2016 with the
big revision of the ROPs on theperson-centered approach to
care.
So I thought that that wasnice, but again, surprising to
see that care planning andappropriateness of activities.
(15:30):
And at one point the OIG even,you know, I'll quote this from
them, says that engagement insocially and cognitively
enriching activities is anessential part contributing
factor in a resident's qualityof life and well-being.
Speaker 00 (15:46):
Yeah, that was so interesting.
And they put it in the context,I think, if I remember right,
they prefaced this whole thing,kind of like what you were
saying before about thischanging kind of population.
They talked about how nursingfacilities are not just about
taking care of the physicalneeds of somebody medically, but
it's also often their home orat least part-time or temporary
(16:11):
home.
And so they talk about it asthis is their home and
well-being and activities.
Unknown (16:15):
Yeah.
Speaker 01 (16:16):
For sure.
That's exactly how they positthis, you know, whole section is
don't take care of only theclinical needs.
It is for all of the folks inlong-term care.
They'll be familiar with this.
It's the psychosocial wellbeingof the individual.
So it is the whole person, notjust the medical or clinical
(16:36):
side that the expectation is thenursing home is being paid to
promote these things.
So it's, I didn't expect it tobe in here.
I view this as more, like ifyou gave me the sentence and
said, which agency did it comefrom?
Oh, I guess it would have beenCMS.
This feels very survey qualityof life.
(16:56):
I'm surprised it made it intothe compliance program.
But there was a big focus onquality as a component of
compliance in the generalcompliance program guidance that
was issued in 2023.
So maybe I shouldn't have beenso surprised that OIG is leaning
(17:16):
a little bit more into likeperson centered care and
preferences and dignity.
But this was not the tone oftheir 2000-2008 guidance
documents.
It was nice, but stillsurprising to see here.
Speaker 03 (17:35):
Gotcha.
Unknown (17:37):
Let's see.
What else?
What else did I think wassurprising?
Speaker 01 (17:41):
Anti-kickback statute got a big upgrade.
And by upgrade, I mean it usedto be a short section in the
statute.
previous guidance documents.
It's now a very large sectionof the guidance.
So I think they called outmaybe like seven or eight
different areas of risk underthe anti-kickback statute in
(18:04):
this industry specific programguidance that just came out in
the previous guidance.
I got to mention, you know, andwe talk about this as it
relates to physician contractingand how the you market to your
referral sources.
And that's typical stuff thatwe talk about with our clients.
There was a lot of focus on thecontracting piece.
(18:28):
So for me, I'm, you know, mywheels are spinning thinking I
should be doing more with myclients in this area because the
OIG is really leaning into thearrangements with other
healthcare providers.
So there was a lot morediscussion about, you know, free
or discounted goods from otherproviders, the contracting
(18:50):
arrangements with hospices,particularly the rates that are
paid to the skilled nursingfacility for the different
levels of care, arrangementswith long-term care pharmacies,
joint ventures.
So the contracting piece andthe rate setting played a much
more significant role.
There was also some interestingdiscussion about hospital
(19:14):
arrangements that I don't recallseeing in the 2008 guidance
that come up pretty regularlyfor me with my clients.
So I was surprised that thesewere raised as red flags and is
now really making me wannacircle back with my clients to
take a secondary review on someof these documents.
(19:35):
Now having insight into whatthe OIG is viewing as risky
behavior so i want to spend alittle bit of time calling each
of these out because i thinkthat these are things that most
nursing home groups are doing insome regard maybe not in all
their facilities i think it'sprobably a little bit dependent
(19:56):
on the market my guess would bein bigger metropolitan areas
these topics come up but thefirst one was related to
payments to accept a dischargepatient from a hospital so The
concept being the hospital mightoffer to supplement the payment
to the nursing facility becausethe clinical care that the
(20:19):
patient needs is going to bemore expensive than what
Medicare might pay out under thePDPM HIPPS code.
So to get the nursing facilityto accept the patient so the
hospital can open the bed, thehospital says, we will basically
subsidize your Medicarepayment.
Please accept this patient.
(20:39):
and move this along for us.
So the OIG calls this outspecifically and says, there is
no safe harbor protectionavailable for this type of
arrangement under the federalanti-kickback statute.
So be careful.
They don't tell you how tostructure this arrangement.
They just give you a warningof, be careful we're on to this
(21:00):
and they're not wrong i haveplenty of clients who get these
letters of understanding uh oryou know one page agreements
that say hey this patient's onthis very expensive medication
it's not carved out underconsolidated billing we will
cover the cost we justdesperately need to open this
bed and no one else will takethis patient that's basically
(21:22):
the scenario that presentsitself and it's not uncommon but
it is a little bit of a redflag that the OIG is calling
this out as a concern.
So I'm certainly going forwardwith my clients, going to do
some education around this area,asked to be looped into the
conversation whenever theseissues come up in the future.
(21:42):
So I thought that wasinteresting because I don't
recall that being in the lastguidance document.
Speaker 00 (21:50):
Yeah, that was really specific kind of call
out.
It's like they
Speaker 01 (21:54):
had something that they were, pointing to and
somehow this had come up andthey haven't even issued an
advisory opinion on somethinglike this, which you might
expect.
But I'm like, how did theybecome aware?
Why is this on their radar?
And are they going to dosomething about it is the bigger
question.
The second item under thehospital arrangements that they
(22:17):
carved out as a potentialconcern was reserve or bed hold
payments basically made by thehospital to hold a certain
number of beds.
And sometimes we see this notwith the hospital, but with a
health plan.
This health plan plan wants toreserve five beds in this
(22:37):
building.
So they always have a locationto discharge their patients to
because they're contracted withthis facility as a provider.
So not uncommon.
I see this pretty regularly.
The OIG does note that there isa proper way to structure this
arrangement, albeit They don'ttell you what that is.
But what they do say is whatthey're concerned about.
(23:01):
So they say there is a good wayto do this in a way that we
would not say that you areliable under the anti-kickback
statute.
You figure that out on yourown.
What we will tell you is thatwe are concerned in double
dipping.
So the nursing facility gettingpaid while the bed is actually
occupied by another patient.
So they want to make sure thatthere is a process to make sure
(23:24):
that doesn't occur.
They are concerned about thehospital paying for more beds
than they legitimately need.
So at any given time, maybethis hospital or health plan,
for example, only ever has threeor four patients in that
building, but they're paying for10 beds.
That would be suspicious.
And then the other piece isexcessive payments.
(23:46):
So even if the amount of bedsthat they're asking you to
reserve is excessive, you know,consistent with what your
average census is for that payeror that hospital at that
building.
What are you paying to reservethe bed?
Is that fair market value?
And if not, why?
So those are some things thatnow with this call out on this
(24:07):
topic in the industry guidance,I certainly want to in the
future look at these contractsas they come across and say,
okay, we need to make sure thatthis rates that they're
reserving the beds for isconsistent with your Medicaid
rate or your private rate forjust room and board or whatever
(24:27):
it is.
But we have to figure out howwe are basing this rate to say
it's fair market value and notjust accepting a dollar.
Speaker 00 (24:36):
Yeah, so interesting.
Sorry, I didn't mean tointerrupt.
Go ahead, finish your
Speaker 01 (24:41):
thought.
No, I think that was the end ofmy thought.
I was just going to reiterate.
So I think it's reallyimportant that providers go back
and look at these arrangementsbecause if they have them and
they haven't been reviewed in ahandful of years, the fair
market value rate not be thereanymore and they might need to
adjust it up or down, probablyup.
But it's something that we havenot seen commented on, although
(25:05):
it's certainly an industrypractice that exists.
Speaker 00 (25:09):
Yeah.
I want to ask you a follow-upquestion about kind of this
whole anti-kickback section.
In one moment, we're going totake a quick break, everyone,
and we'll be right back.
Welcome back everyone from thebreak.
Paige has been telling usabout, you know, these very
specific kind of call-outs inthe anti-kickback section.
(25:30):
And Paige, I'm just wonderingmaybe at a general level, like
this seems like they've,they've, they've gone pretty
deep into some very specificexamples.
They had another one that youwere talking about that you and
I communicated about this, thepharmacy consultants and all
those sorts of things.
Do you think this is going tobe indicative?
Like I'm trying to predict likewhat the guidance might be for
(25:51):
hospitals and physicians andlabs.
I'm curious.
I'm thinking this might be anexample of they did some pretty
specific AKS risks for this ICPGvaccine.
I'm hoping and thinking they'lldo similars for other ICPGs.
What are your thoughts on that?
Speaker 01 (26:09):
I would hope so.
I mean, I hope that they didn'tgive all of the risk and say,
we feel like this is the nursinghome's problem to solve.
You know, it's a 50-50arrangement.
So everything that's mirroredin here, I would expect to see
in the hospital guidance or inthe hospice guidance or If it
wasn't, I feel like that's quiteunfair to say nursing homes
(26:31):
solve the problem when there aretwo providers to these
arrangements.
But I will say that I thinkit's an interesting approach to
the AKS category of risk,because like I said before the
break, when I'm talking aboutAKS with my clients, I'm
primarily focusing on no wedon't give gift cards to the
(26:52):
computers for referrals or likethese are appropriate ranges for
professional business dinnersto talk about quality and this
is how we structure ourphysician consulting
arrangements our medicaldirectorships and how we
document so those are typicallythe areas i'm talking about with
my clients when it comes toanti-kickback statute risk this
(27:14):
focus was so much heavier oncontracting.
So I feel like, okay, I need togo work with the procurement
department or make legal who isreviewing these contracts aware
of these risks and maybe come upwith a one-pager or half-pager
about compliance considerations.
Please run these by me as yourconsultant when these issues
(27:36):
come up.
Don't just look at theboilerplate legal terms of the
agreement.
You have to be mindful about X,Y, and Z.
So I feel like it became alittle bit more sophisticated
than I typically approach withmy clients.
So that puts something on myto-do list for sure going into
2025.
Yeah,
Speaker 00 (27:57):
I'm so glad you brought that up because, you
know, so many times like peoplewill tell me, oh, well, our
legal department, you know,reviewed this agreement.
It's usually not the agreementand what's in writing that's the
problem.
It's the backstory.
It's are you actually, first ofall, doing what you said you're
doing in the agreement?
So you can't just write anagreement and say you're going
to do X, Y, and Z, and then youdo A, B, and C.
(28:19):
And so it's not just, oh, legalreviewed the agreement.
Well, has anybody reviewed thesituation or the context, right?
Like what's going on behind thescenes?
You didn't tell me that youguys were also doing this little
interaction behind the scenes.
That didn't make it into theagreement because if it had, it
wouldn't have been cleared.
(28:40):
So I'm with you.
I think it's so interestingthat These are very kind of
contractual types ofarrangements that have been
highlighted here.
Speaker 01 (28:50):
Yeah, there's definitely work for any nursing
home chain that has like ageneral counsel that is in
charge of reviewing contracts ormaybe even a procurement
department that is responsiblefor approving these
arrangements.
Compliance needs to be workingclosely with them and giving
(29:11):
them a short list of, these arethe issues I want you to spot
check.
I don't need to review thewhole agreement.
I'm not reviewing, for example,like the indemnity clause.
That is of no concern to thecompliance officer.
That is a legal function.
Or the arbitration clause orthe termination language.
The compliance officer isgenerally not concerned with
(29:32):
that.
I totally get that that is alegal function and I don't want
that to come to compliance.
But I do want compliance to beat the table to call out some of
these real compliance issuesaround fair market value and
clear language in there thatsays we won't do X, Y, and Z.
And the anti-kickback statutelanguage should be in there.
(29:53):
So there is a compliance pieceto these contract workflows
within an organization.
And I think this is reallytelling the compliance officer,
if you're not already puttingyourself at that table, you need
to insert yourself in thesediscussions.
Speaker 00 (30:10):
Yeah, I agree.
And I'm going to predict thatother ICPGs that come out are
going to kind of have a similartheme, that the specifics or the
risks might be like thescenarios might be slightly
different.
But the theme of what we justtalked about, I think, is going
to be in those.
So let me kind of shift gears alittle bit here.
And you've shared a lot ofreally great specifics.
(30:33):
And you've already kind ofshared a little bit of this.
So if you don't have more onthis topic, that's fine.
But what does all of thisinformation kind of inform you
about how you're going toapproach and how we should all
approach developing complianceand ethics programs?
I mean, you mentioned a littlebit about it, but anything else?
Of course I have additionalthoughts.
Speaker 01 (30:53):
So, yeah, I think that this is not your seven
elements document, right?
That's a general complianceprogram guidance.
But that being said, thisdocument really shapes how you
approach, I think, two of thoseseven elements.
One is the design of yourprogram, the who is
participating in thesediscussions.
(31:14):
How does the compliance programget involved in areas that have
traditionally been like, Markedas this is clinicals role and
responsibility, or this is legalfunction.
And I think the other piece ofit is obviously the auditing and
monitoring element and riskidentification.
So for me, I was, you know,giving our team a pat on the
(31:36):
back of, I think we've beendoing this.
The right way, everything thatwe approach with.
structuring a complianceprogram, education, designating
roles and responsibilitiesreally jives with what the OIG
is putting out between thegeneral and industry-specific
guidance documents together.
So I feel like we are on theright track in terms of
(32:00):
structure.
Like I said, a few pointsthroughout this conversation, I
definitely have some items on myhomework list that I want to
circle back to our clients toreinforce or maybe do an audit
in an area where we haven'treally taken the initiative as
the compliance team to auditbefore and kind of delegated off
to people.
(32:20):
But for me, I think one of thebig takeaways is structure.
So compliance has to have aseat at the table.
I think that for me, especiallywhen starting with a client
that is building their program,not coming into someone who has
an established program, butsomeone who's building out their
program or formalizing it forthe first time, it's not
(32:42):
uncommon for us to get pushbackfrom other disciplines like IT
or particularly the clinicalteam saying, we don't report to
you.
We're our own vertical withinthe company.
I report to the president orthe CEO, kind of stay in your
lane compliance people.
And I get it.
It's unusual for you to beasked to report to someone who
(33:07):
is not your direct supervisor.
And sometimes, you know, egoscan get involved.
These people have been expertsin their fields for likely
decades.
So sharing your work productwith someone else in
anticipation of getting feedbackor notes feels uncomfortable.
But for me, it's something youhave to overcome to have a
(33:28):
compliance program that isactually effective and working
in the way that the OIG expectsit to work.
Now, for example, let's say Ihave a regional MDS consultant
and this person is going to bemore skilled at reviewing an MDS
and telling you if you havecoded it accurately based on
what's in the medical recordthan your compliance officer.
(33:50):
I expect your complianceofficer to be a generalist and
your MDS consultant or yourregional MDS consultant to be
the expert.
That being said, if thatconsultant finds a error in the
coding of a standalone MDSassessment when they were doing
a proactive, you know, samplesize, randomly selected audit,
(34:12):
and they tell the facility-basedMDS person, oh, I found this
error, you know, correct it andresubmit a modified MDS
assessment.
That might be the end of that.
Yeah.
No one else is told about that.
But if the compliance officerthrough the compliance committee
or whatever other channel theyhave for communication is told
(34:34):
about an improperly coded MDS,as a compliance professional,
I'm thinking, okay, I have a fewquestions.
Was this isolated?
Like what was the cause of theerror in coding?
Was this a misunderstanding ofthe rule and therefore is going
to affect other charts or otherMDS assessments that also need
(34:55):
to be corrected?
How patterned was this?
What's our look back period?
Are we going back the six yearsunder the Medicare A and B 60
day refund rule?
Should we be getting legalcounsel involved right now to
privilege our internal duediligence?
to determine what ouroverpayment liability is.
So I'm not saying what theregional did was incorrect in
(35:17):
directing the facility-basedperson to modify the MDS.
That's absolutely what theyneed to do.
But there is a very bigconversation that that triggers
that when someone who is focusedon their specific role acts
alone and doesn't informationshare, you miss out on the
bigger picture and the actualfalse claims risk that comes
(35:40):
with not sharing thatinformation.
So I think it is a hurdle forcompanies who are developing and
building their complianceprogram to get past some of the
breaking down of the walls andinformation sharing and
integrating and recognizingcompliance as its own discipline
and the compliance officer as aperson that has a distinct
(36:03):
skillset to help the company andnot feel like it's, oh no, it's
big brother watching my everymove, but really acknowledging
that you approach this verydifferently.
Like we are working to solvethe same problem, but we have
different experiences and skillsets that we're bringing to the
table to tackle it.
(36:23):
So I think that that issomething that these two
documents say you need to do areally good job at making sure
these organizations walls arenot built up between the
different verticals within yourcompany.
So I think that that issomething that helps me feel
that as consultants, we've donea really good job.
(36:44):
That is the approach we'vealways taken.
It is information sharing.
So I felt like that wasreinforced throughout these two
documents.
And that kind of, I guess,takes me into this discussion at
the end of this ICPG that theOIG has about who your
compliance officer is.
(37:05):
And I thought that this wasinteresting because in, at least
for skilled nursing facilities,we have a CMS mandate to have a
compliance and ethics programat F895.
Slightly different requirementsif you're five or more
buildings, slightly lighterrequirements if you're four or
fewer buildings, But for thelarger groups, you're expected
(37:27):
to have a compliance officer forwhom compliance is a major job
responsibility, although majorjob responsibility is not
defined.
The OIG in this document in theindustry-specific guidance says
this person should havesufficient experience in
managing both complianceprograms, but also have
involvement in quality.
(37:47):
It's hard for someone that hasno idea what an MDS is to
identify when there's concerns,for example, or that doesn't
really understand the clinicalside or the care that we give to
identify when concerns rise tothe level of substandard care.
So there does need to be somecross-training there.
I think it's probably easierfor chains of nursing homes that
(38:11):
have 20 plus facilities to notonly budget for this position,
but they also probably have alot more people with these skill
sets that they can promote intothe role internally versus
sourcing externally.
I think it is particularly hardfor the people or the groups in
five to 15-ish locationsbudgeting to have a full-time
(38:36):
compliance position, or if not afull-time compliance position,
giving someone who already has afull-time role an additional
responsibility for thecompliance program and giving
them two areas to oversee.
So I just think that it issomething that the OIG notes in
here that really does impact howyou've structured your
(38:59):
compliance program because oftheir emphasis on quality and
really integrating theseprograms as not quality you live
over here and you never have totalk to your compliance officer
because you do two verydistinct functions.
It is making sure that yourcompliance officer has the
requisite authority to do theirjob and the knowledge and
(39:21):
experience to identify the redflags within the quality of
care, discipline, or vertical ofthe company.
Speaker 00 (39:29):
Yeah, Paige, those are great insights, such great
insights.
And I'm glad you kind of talkedabout how it's the two
documents going together.
I think the OIG has really,designed it this way, that the
GCPG is not just something yougloss over, but that's kind of
the prerequisite for readingyour ICPGs.
And so really, I appreciate theway you kind of paired those
(39:52):
two together.
We are kind of coming towardsthe end of our time.
But I wanted to give you sometime to kind of share last
minute thoughts, any takeaways,or maybe something I didn't ask
that you feel is reallyimportant to share.
Unknown (40:06):
Yeah.
Speaker 01 (40:07):
I would say that this is probably a good time for
anyone with an establishedcompliance program that says,
oh, we have a good program inplace, we have a really
qualified compliance officer.
If you haven't done acomprehensive compliance program
review, the timing would beright.
Like I said at the beginning, Ithink there's going to be an
(40:31):
industry focus on enforcementfor skilled nursing facilities.
go back, make sure your I's aredotted, your T's are crossed.
If you rolled out this programand haven't really looked at
your documentation to see howyou're recording it and
supporting it, it's timely to dothat now.
Specifically, I would focus onthe person sitting in the
(40:51):
compliance officer role to makesure, like I said, they have the
requisite authority,independence, and experience to
carry out the role.
At a minimum, I would recommendstarting by looking at who you
have in your compliance officerrole and making sure that person
has the requisite authority,independence, and experience to
carry out their jobresponsibilities.
Second, I would make sure thatyou have a really integrated
(41:15):
compliance department with thoseother disciplines, making sure
that your compliance committeeis effective and that the folks
participating in those meetingsare reporting relevant
information and doing dataanalysis and trending.
And then I would go through thetable of contents of this
industry specific guidancedocument and say, what are we
(41:36):
doing in these areas?
And then document how you riskrank them and prioritize them,
what you're doing for auditingand make sure that you are
ensuring that should the OIG orDOJ knock on your door, you have
good sufficient documentationto show your good faith efforts
that you are respondingappropriately to the guidance
(41:57):
that the government's givingyou.
in your monitoring and auditingprograms.
Speaker 00 (42:02):
Yeah.
And, you know, I think that ata minimum, we should be taking
like these ICPGs and anyspecific risks.
Like, you know, we spent a lotof time at the beginning talking
about AKS and those specificcall-outs.
We should at least on our riskassessments be looking at every
one of those call-outs andquantifying how big of a risk is
(42:22):
this for us?
Or if you could substantiate,you know, we don't, Get involved
in that.
We don't have these pharmacycontracts.
We don't have this or we do.
And to this level, like at aminimum, it feels like our risk
assessment should at least becommenting on each of the call
outs in these ICPGs.
It doesn't mean those are theonly risks.
(42:43):
Of course, there may be others,but it feels like at a minimum,
we should be addressing thoseto your point.
Speaker 01 (42:49):
Yeah, I 100% agree with you.
I really literally feel likeyou could take this table of
contents and cut and paste it.
And then in the column next toit, right?
Like, is this a risk?
Yes, no.
Speaker 00 (42:59):
And why?
What is it?
Speaker 01 (43:01):
For example, you don't have a joint venture.
So you write no and you donothing.
Great.
But we considered whether ornot it was a risk.
And then for any of the yeses,it's How high of a risk is this,
you know, to be really basic,high, low, medium risk?
And when are we going to do anaudit of our risk based on the
priority?
(43:21):
And I think that that is if youdon't have a formalized written
audit program, the basis fordeveloping it.
Speaker 00 (43:31):
Yeah, such great advice.
Paige, you're always amazing totalk to and always share such
great insights.
And you have all of theknowledge, but then also the
practical experience.
I know you're actually workingwith clients in all of these
areas.
And so you've seen what worksand what doesn't work.
And so really appreciate yourwillingness to share your
(43:51):
expertise today.
Speaker 01 (43:52):
I'm happy to be on here and share that feedback.
I think that there is probablya lack of folks that really
understand the skilled nursingindustry specifically in the
compliance discipline.
So I enjoy talking about thisand raising the awareness around
the risks for this segment ofthe healthcare industry.
(44:14):
So thanks for having me.
Speaker 00 (44:16):
Absolutely.
And for those listening, wewill include Paige's contact
information in the show notes.
So if you have questions or ifyou feel like you need her help
or Compligents help, you canhave that contact information.
And thank you to all those whoare always listening.
We always ask this at the end.
If you have a topic that youwant to hear addressed, please
(44:38):
share it with us.
If you have a speaker or anexpert or somebody that you know
that would make a great guest,please pass their name along to
us.
And thanks Again, everyone forlistening.
Until next time, take care.
Hello, welcome everybody to another episode of
Compliance Conversations.
I'm CJ Wolf with Healthicity.
And today we're going to betalking about some of the OIG
guidance.
I have a real expert here onsome of that information,
especially some of the recentICPG that was recently
(00:21):
published.
But before we get into ourtopic, let me tell you who our
wonderful guest is, PaigePennington.
Paige, welcome back.
I know you've been on thepodcast before.
Speaker 01 (00:30):
Thank you for having me.
Looking forward to speaking toyou at length about the OIG's
ICPG.
Speaker 00 (00:37):
Yeah, we're so excited to have you.
And you've probably done thisbefore, but it's probably been a
while for our guests.
So we'd love for you just totell us about yourself,
introduce yourself, what you do,kind of your background,
whatever you're comfortablesharing.
We'd love to hear that beforewe jump into the topic.
Speaker 01 (00:53):
Hi, everybody.
Thanks for tuning in today.
My name is Paige, as CJmentioned.
I'm a co-founder of acompliance consulting firm
called Compliagent.
We've been around since,goodness, 2010, 2011-ish.
We work with all types ofhealthcare providers on building
out their compliance programs,helping them maintain it.
(01:15):
Sometimes we get involved withoverseeing corporate integrity
agreements or serving asindependent auditors.
Our real Relationships with ourclients really depend on what
their compliance needs are.
Sometimes we meet folks thatare at the very beginning of
their compliance journey andsay, where do we start?
And other times we're gettingmore involved in a very
(01:35):
sophisticated model wherethey've been at it for a decade
or two and just want an outsiderperspective on compliance.
How do you think we're doing?
What can we improve?
So we meet our clients wherethey are across the healthcare
spectrum.
With that being said, though,my expertise is certainly in the
post-acute care side.
I work primarily with long-termcare facilities, skilled
(01:58):
nursing, nursing homes, homehealth hospice.
So Hence why today I'm going tobe focusing on the
industry-specific guidance forskilled nursing facilities,
because that is where I spendabout 85% of my time.
Speaker 00 (02:14):
Yeah, and we're so excited to hear from you.
And for those of you who'vebeen listeners and you partake
of a lot of the resources postedon Healthicity's website,
you'll see, maybe we can evenfind these links, webinars that
Paige has done with us.
She's an absolute expert inthis space and just one of the
nicest and best people to workwith.
(02:34):
So I highly encourage you toconsider her and their services.
They're great.
So Paige, let's jump into thisICPG.
And let me just kind of givethe folks some background.
Most of our folks arecompliance folks and audience,
so they already know this.
But as we all know, the OIG haspublished a new general
(02:56):
compliance program guidancedocument, which we've been
talking about for over a yearand a half, I think now.
But at the end of last year,they published their first ICPG.
They promised that they wouldpublish these industry
guidelines.
kind of sub segments of thehealthcare industry specific
guidance.
So, and that's what we're gonnatalk about.
And so Paige, tell us a littlebit about this recently updated,
(03:21):
you know, ICPG for nursingfacilities and what your initial
thoughts are on this.
Speaker 01 (03:28):
Yeah, I think it's telling that the OIG picked
skilled nursing as the industry,to focus on for their first
ICPG because we got the generalcompliance program guidance that
is broadly applicable to anytype of provider in the
healthcare side.
That could be adapted for largeorganizations, small
(03:50):
organizations, home health,hospice, skilled nursing,
hospitals.
And that came out in 2023 andthat was, you know, meant to be
what I would say provideragnostic, not focusing on anyone
and is very geared toward thoseseven elements of compliance.
And we knew that industryspecific stuff was coming.
But the fact that skillednursing got the first guidance,
(04:13):
I think tells you a little bitabout what the government views
as their priority list forenforcement.
Skilled nursing facilities havethe most recent guidance out
there.
So The previous round ofguidance was issued by OIG 1998
through 2008.
The skilled nursing guidancecame out in 2000 initially and
was supplemented in 2008,technically making this industry
(04:36):
the most recent guidance fromthe OIG.
So you would think that OIGwould naturally want to update
its guidance that they issued in1998 before they updated the
more recent 2008 guidancedocuments.
Speaker 02 (04:51):
Exactly.
Speaker 01 (04:52):
It's not the approach they took.
So, you know, there are, youknow, guidance documents for
hospice and labs that haven'tbeen touched since the 90s.
And those were not prioritized.
So I think that we will seemore enforcement in the skilled
nursing industry.
Bad for providers, kind of goodfor me as a consultant.
(05:15):
But, you know, I mean, it's...
It is definitely the tone of wehave concerns about this sector
of the industry more so thanother sectors.
The OIG recently updated itswebsite to specifically say that
other industry guidance forhospitals, clinical
(05:35):
laboratories, and MedicareAdvantage programs is expected
in 2025 with hospice and pharmato follow sometime later, 2026,
2027.
But Medicare Advantage doesn'teven currently have guidance,
period.
Not from the 90s, not from anytime.
So being prioritized overMedicare Advantage, which is a
(05:57):
huge payer program, issurprising and probably fairly
concerning for a lot of myskilled nursing clients.
So I would tell providers inthis sector of the industry, dot
your I's and cross your T's.
Speaker 00 (06:11):
Absolutely.
That's such a greatperspective, Paige, about and I
hadn't really thought about itthat way, that they did have,
the skilled nursing facilitiesdid have the most recent
published guidance in the oldmethodology, right, through the
Federal Register in 2008.
So yeah, interesting thatthey're visiting that one first.
Great, great perspective onthat.
So tell me what you think, werethere any surprises?
(06:36):
So maybe what was not asurprise?
What was a surprise when youfirst kind of read through the
ICPG?
Speaker 01 (06:43):
Yeah, I liked how the OIG approached the guidance
in their rebranding of theseolder documents and kind of
re-imagining how they'redivided.
I thought it was smart to pullout the seven elements so they
weren't repeating the samecontent in each
industry-specific guidancedocument.
So organizationally as a type Aperson, I'm like, oh, this
(07:06):
makes sense.
You have a general one thateveryone should look at, and
then you have risk-based programguidance that leaves out
largely the seven elements stuffand focuses just on the risk
specific areas that they hopeproviders are focusing their
training policies and monitoringand auditing efforts on.
(07:26):
So organizationally, I thought,good, it was a nice cleanup,
great.
The federal government isn'talways great at streamlining,
but I thought that this was avery appropriate way to
bifurcate those two guidanceapproaches
Speaker 03 (07:42):
That being said, the usual suspects are still there,
right?
Unknown (07:45):
We see risk areas in staffing and medication
management with a focus onpsychotropics and
antipsychotics.
Speaker 01 (07:54):
We see the mention of abuse and neglect as a
concern, and then obviouslyaccuracy of documentation to
support billing under theMedicare program.
So these were in the 2000documents.
the 2008 documents, they are inthis document.
And I suspect in 10 years or 15years from now, he'll be in the
next iteration as well.
So that stuff doesn'taltogether surprise me.
(08:17):
I think that they did a betterjob in this document of giving
practical examples versus citingderegulations and talking about
things in theory.
With each of these sections,they really did break down, this
is our concern, this is how wesee it happen, here are some
recommendations for what wethink you should be doing as
part of your compliance program.
So yeah, on that respect, okay,great, nice update.
(08:42):
There were a handful of topicsI was a little bit surprised to
see in this document and not anegative surprise and like, I
don't think this is an issue inthe industry.
But I was surprised to see itwas at the level of the OIG
feeling it was worth mentioning.
(09:03):
So, you know, some of thisstuff I was like, oh, this is,
you know, on the OIG's radar.
That's interesting.
Maybe I as a consultant toskilled nursing facilities
should call this stuff out alittle bit more and focus on it
more than I have historically.
So the first one, that I waskind of surprised to see was
(09:24):
this recognition paragraph aboutthe changing demographics and
the patient population, theacknowledgement that skilled
nursing facilities are taking onyounger populations with higher
acuity and also a lot of morebehavioral or mental health
needs than has historically beenthe case in the nursing
(09:46):
industry.
So, you know, I think to thegeneral public, they hear
nursing home and they stillthink that like grandma's going
to the nursing home so shedoesn't live by herself and they
treat it in their minds morelike a independent but assisted
living type of setting, not highacuity post-surgery with like
(10:08):
complex medical comorbidities.
And that's just not what theindustry is.
Like we are really seeing ahigh push on acuity, a ton of
behavioral and mental healthneeds.
And so I thought it was nicethat the OIG called that out,
albeit this is a guidancedocument.
So it's not like they solved aproblem for us by saying, here's
(10:28):
how to address this.
It's more like we're at leastacknowledging the problem or
acknowledging that you guys arefaced with these problems and
are becoming more akin to ahospital than the assisted
living or independent livingside.
So I thought that it wassurprising that they
acknowledged it in this documentbecause I wouldn't necessarily
(10:52):
say it's a compliance risk, butthey did tie it into the
requirements of participation.
specifically to the facilityassessment piece, which was
recently updated by CMS inAugust of 2024, and said, in
consideration of all of thesemore complex things that you
(11:13):
have to consider when you'readmitting your patients, make
sure that you have the capacityand ability and the resources to
provide appropriate services.
So if you are taking onpatients with behavioral needs
or mental health needs, makesure your staff is getting that
training.
So this really, I thinkdovetails with the idea of not
(11:35):
only sufficiency of staff bynumber, which we know is a whole
separate issue in the skillednursing industry, but also the
competency of your staff toappropriately care for the
resident population that you arechoosing to admit.
So I thought that was, youknow, consistent with some of
(11:56):
the stuff that we've seen fromCMS.
I didn't necessarily expect tosee it in this document as a
risk area of competency andcomplexity of the patient
population.
Speaker 00 (12:09):
Yeah.
And on that note, Paige, so itwas interesting to me, and maybe
you were going to talk aboutthis later, but they talk about
how, oh, there's lots ofturnover in staffing and nursing
facility.
Like they mentioned all ofthese hard things in the
industry, right?
And basically I just felt like,okay, they're pointing out the
obvious and they're just kind ofsaying, this is hard, but you
(12:31):
got to deal with it.
I don't, did you come away withthat?
It felt like I'm the staffing.
I
Speaker 01 (12:35):
think that is kind of the tone throughout this
document.
There are a few places wherethey give recommendations or
share.
These are what other providershave done that leave you as
successful solutions.
Speaker 02 (12:49):
Yeah.
Speaker 01 (12:49):
Certainly not in the realm of staffing.
I mean, Every nursing homeoperator nationwide is waiting
to see what the currentadministration does with the
proposed minimum federalstaffing mandate rule that is
going to roll out in pieces.
It's the shortage of qualifiednurses in all different levels,
(13:12):
RNs, LPNs, and your nursingassistants.
is a concern in the industry.
And it's not that people don'twant to hire these individuals.
It is literally that finding,hiring, retaining.
I don't have a perfectsolution.
Everyone wants to talk to meabout this and say, what should
(13:33):
we do?
And there's no like, here areyour six steps.
If you do this, you'll besuccessful and you'll never lose
a nurse again.
I wish it was that easy.
But yeah, a lot of timesstaffing comes up as it ties
into these risk areas.
but there's really no solutionhere.
It's like, do stuff to promoteretention.
And it's like, what is thestuff that you want us to do?
Speaker 00 (13:54):
Exactly.
Okay.
I'm glad I wasn't the only onewho kind of read it that way.
And sorry to interrupt.
Go ahead.
Any other like surprises thatyou were talking about?
Speaker 01 (14:03):
Yes, certainly.
Full of surprises.
Okay.
I have a few other areas thatare on my short list of
call-outs for this particularquestion I was anticipating.
The next one was related tocare planning and activities.
So care planning as a potentialrisk area was included in the
(14:24):
2008 guidance.
So not wholly surprising, butthe lumping it in with
activities was a little bit of anuance that I generally, again,
don't think of the OIG honingin on.
When I think of OIG, I'mthinking really high level, like
false claims, inaccuratebilling, anti-kickback.
(14:44):
I'm not thinking the OIG caresso much about person-centered
care.
And well, I retract thatstatement because they certainly
do because it's been, it wasreally woven throughout this
document and a lot of thequality areas they brought back
to align with CMS.
So I think the two agenciesreally are starting to mirror
(15:09):
each other in terms of thisguidance.
Now, aligning more with whatCMS pushed out in 2016 with the
big revision of the ROPs on theperson-centered approach to
care.
So I thought that that wasnice, but again, surprising to
see that care planning andappropriateness of activities.
(15:30):
And at one point the OIG even,you know, I'll quote this from
them, says that engagement insocially and cognitively
enriching activities is anessential part contributing
factor in a resident's qualityof life and well-being.
Speaker 00 (15:46):
Yeah, that was so interesting.
And they put it in the context,I think, if I remember right,
they prefaced this whole thing,kind of like what you were
saying before about thischanging kind of population.
They talked about how nursingfacilities are not just about
taking care of the physicalneeds of somebody medically, but
it's also often their home orat least part-time or temporary
(16:11):
home.
And so they talk about it asthis is their home and
well-being and activities.
Unknown (16:15):
Yeah.
Speaker 01 (16:16):
For sure.
That's exactly how they positthis, you know, whole section is
don't take care of only theclinical needs.
It is for all of the folks inlong-term care.
They'll be familiar with this.
It's the psychosocial wellbeingof the individual.
So it is the whole person, notjust the medical or clinical
(16:36):
side that the expectation is thenursing home is being paid to
promote these things.
So it's, I didn't expect it tobe in here.
I view this as more, like ifyou gave me the sentence and
said, which agency did it comefrom?
Oh, I guess it would have beenCMS.
This feels very survey qualityof life.
(16:56):
I'm surprised it made it intothe compliance program.
But there was a big focus onquality as a component of
compliance in the generalcompliance program guidance that
was issued in 2023.
So maybe I shouldn't have beenso surprised that OIG is leaning
(17:16):
a little bit more into likeperson centered care and
preferences and dignity.
But this was not the tone oftheir 2000-2008 guidance
documents.
It was nice, but stillsurprising to see here.
Speaker 03 (17:35):
Gotcha.
Unknown (17:37):
Let's see.
What else?
What else did I think wassurprising?
Speaker 01 (17:41):
Anti-kickback statute got a big upgrade.
And by upgrade, I mean it usedto be a short section in the
statute.
previous guidance documents.
It's now a very large sectionof the guidance.
So I think they called outmaybe like seven or eight
different areas of risk underthe anti-kickback statute in
(18:04):
this industry specific programguidance that just came out in
the previous guidance.
I got to mention, you know, andwe talk about this as it
relates to physician contractingand how the you market to your
referral sources.
And that's typical stuff thatwe talk about with our clients.
There was a lot of focus on thecontracting piece.
(18:28):
So for me, I'm, you know, mywheels are spinning thinking I
should be doing more with myclients in this area because the
OIG is really leaning into thearrangements with other
healthcare providers.
So there was a lot morediscussion about, you know, free
or discounted goods from otherproviders, the contracting
(18:50):
arrangements with hospices,particularly the rates that are
paid to the skilled nursingfacility for the different
levels of care, arrangementswith long-term care pharmacies,
joint ventures.
So the contracting piece andthe rate setting played a much
more significant role.
There was also some interestingdiscussion about hospital
(19:14):
arrangements that I don't recallseeing in the 2008 guidance
that come up pretty regularlyfor me with my clients.
So I was surprised that thesewere raised as red flags and is
now really making me wannacircle back with my clients to
take a secondary review on someof these documents.
(19:35):
Now having insight into whatthe OIG is viewing as risky
behavior so i want to spend alittle bit of time calling each
of these out because i thinkthat these are things that most
nursing home groups are doing insome regard maybe not in all
their facilities i think it'sprobably a little bit dependent
(19:56):
on the market my guess would bein bigger metropolitan areas
these topics come up but thefirst one was related to
payments to accept a dischargepatient from a hospital so The
concept being the hospital mightoffer to supplement the payment
to the nursing facility becausethe clinical care that the
(20:19):
patient needs is going to bemore expensive than what
Medicare might pay out under thePDPM HIPPS code.
So to get the nursing facilityto accept the patient so the
hospital can open the bed, thehospital says, we will basically
subsidize your Medicarepayment.
Please accept this patient.
(20:39):
and move this along for us.
So the OIG calls this outspecifically and says, there is
no safe harbor protectionavailable for this type of
arrangement under the federalanti-kickback statute.
So be careful.
They don't tell you how tostructure this arrangement.
They just give you a warningof, be careful we're on to this
(21:00):
and they're not wrong i haveplenty of clients who get these
letters of understanding uh oryou know one page agreements
that say hey this patient's onthis very expensive medication
it's not carved out underconsolidated billing we will
cover the cost we justdesperately need to open this
bed and no one else will takethis patient that's basically
(21:22):
the scenario that presentsitself and it's not uncommon but
it is a little bit of a redflag that the OIG is calling
this out as a concern.
So I'm certainly going forwardwith my clients, going to do
some education around this area,asked to be looped into the
conversation whenever theseissues come up in the future.
(21:42):
So I thought that wasinteresting because I don't
recall that being in the lastguidance document.
Speaker 00 (21:50):
Yeah, that was really specific kind of call
out.
It's like they
Speaker 01 (21:54):
had something that they were, pointing to and
somehow this had come up andthey haven't even issued an
advisory opinion on somethinglike this, which you might
expect.
But I'm like, how did theybecome aware?
Why is this on their radar?
And are they going to dosomething about it is the bigger
question.
The second item under thehospital arrangements that they
(22:17):
carved out as a potentialconcern was reserve or bed hold
payments basically made by thehospital to hold a certain
number of beds.
And sometimes we see this notwith the hospital, but with a
health plan.
This health plan plan wants toreserve five beds in this
(22:37):
building.
So they always have a locationto discharge their patients to
because they're contracted withthis facility as a provider.
So not uncommon.
I see this pretty regularly.
The OIG does note that there isa proper way to structure this
arrangement, albeit They don'ttell you what that is.
But what they do say is whatthey're concerned about.
(23:01):
So they say there is a good wayto do this in a way that we
would not say that you areliable under the anti-kickback
statute.
You figure that out on yourown.
What we will tell you is thatwe are concerned in double
dipping.
So the nursing facility gettingpaid while the bed is actually
occupied by another patient.
So they want to make sure thatthere is a process to make sure
(23:24):
that doesn't occur.
They are concerned about thehospital paying for more beds
than they legitimately need.
So at any given time, maybethis hospital or health plan,
for example, only ever has threeor four patients in that
building, but they're paying for10 beds.
That would be suspicious.
And then the other piece isexcessive payments.
(23:46):
So even if the amount of bedsthat they're asking you to
reserve is excessive, you know,consistent with what your
average census is for that payeror that hospital at that
building.
What are you paying to reservethe bed?
Is that fair market value?
And if not, why?
So those are some things thatnow with this call out on this
(24:07):
topic in the industry guidance,I certainly want to in the
future look at these contractsas they come across and say,
okay, we need to make sure thatthis rates that they're
reserving the beds for isconsistent with your Medicaid
rate or your private rate forjust room and board or whatever
(24:27):
it is.
But we have to figure out howwe are basing this rate to say
it's fair market value and notjust accepting a dollar.
Speaker 00 (24:36):
Yeah, so interesting.
Sorry, I didn't mean tointerrupt.
Go ahead, finish your
Speaker 01 (24:41):
thought.
No, I think that was the end ofmy thought.
I was just going to reiterate.
So I think it's reallyimportant that providers go back
and look at these arrangementsbecause if they have them and
they haven't been reviewed in ahandful of years, the fair
market value rate not be thereanymore and they might need to
adjust it up or down, probablyup.
But it's something that we havenot seen commented on, although
(25:05):
it's certainly an industrypractice that exists.
Speaker 00 (25:09):
Yeah.
I want to ask you a follow-upquestion about kind of this
whole anti-kickback section.
In one moment, we're going totake a quick break, everyone,
and we'll be right back.
Welcome back everyone from thebreak.
Paige has been telling usabout, you know, these very
specific kind of call-outs inthe anti-kickback section.
(25:30):
And Paige, I'm just wonderingmaybe at a general level, like
this seems like they've,they've, they've gone pretty
deep into some very specificexamples.
They had another one that youwere talking about that you and
I communicated about this, thepharmacy consultants and all
those sorts of things.
Do you think this is going tobe indicative?
Like I'm trying to predict likewhat the guidance might be for
(25:51):
hospitals and physicians andlabs.
I'm curious.
I'm thinking this might be anexample of they did some pretty
specific AKS risks for this ICPGvaccine.
I'm hoping and thinking they'lldo similars for other ICPGs.
What are your thoughts on that?
Speaker 01 (26:09):
I would hope so.
I mean, I hope that they didn'tgive all of the risk and say,
we feel like this is the nursinghome's problem to solve.
You know, it's a 50-50arrangement.
So everything that's mirroredin here, I would expect to see
in the hospital guidance or inthe hospice guidance or If it
wasn't, I feel like that's quiteunfair to say nursing homes
(26:31):
solve the problem when there aretwo providers to these
arrangements.
But I will say that I thinkit's an interesting approach to
the AKS category of risk,because like I said before the
break, when I'm talking aboutAKS with my clients, I'm
primarily focusing on no wedon't give gift cards to the
(26:52):
computers for referrals or likethese are appropriate ranges for
professional business dinnersto talk about quality and this
is how we structure ourphysician consulting
arrangements our medicaldirectorships and how we
document so those are typicallythe areas i'm talking about with
my clients when it comes toanti-kickback statute risk this
(27:14):
focus was so much heavier oncontracting.
So I feel like, okay, I need togo work with the procurement
department or make legal who isreviewing these contracts aware
of these risks and maybe come upwith a one-pager or half-pager
about compliance considerations.
Please run these by me as yourconsultant when these issues
(27:36):
come up.
Don't just look at theboilerplate legal terms of the
agreement.
You have to be mindful about X,Y, and Z.
So I feel like it became alittle bit more sophisticated
than I typically approach withmy clients.
So that puts something on myto-do list for sure going into
2025.
Yeah,
Speaker 00 (27:57):
I'm so glad you brought that up because, you
know, so many times like peoplewill tell me, oh, well, our
legal department, you know,reviewed this agreement.
It's usually not the agreementand what's in writing that's the
problem.
It's the backstory.
It's are you actually, first ofall, doing what you said you're
doing in the agreement?
So you can't just write anagreement and say you're going
to do X, Y, and Z, and then youdo A, B, and C.
(28:19):
And so it's not just, oh, legalreviewed the agreement.
Well, has anybody reviewed thesituation or the context, right?
Like what's going on behind thescenes?
You didn't tell me that youguys were also doing this little
interaction behind the scenes.
That didn't make it into theagreement because if it had, it
wouldn't have been cleared.
(28:40):
So I'm with you.
I think it's so interestingthat These are very kind of
contractual types ofarrangements that have been
highlighted here.
Speaker 01 (28:50):
Yeah, there's definitely work for any nursing
home chain that has like ageneral counsel that is in
charge of reviewing contracts ormaybe even a procurement
department that is responsiblefor approving these
arrangements.
Compliance needs to be workingclosely with them and giving
(29:11):
them a short list of, these arethe issues I want you to spot
check.
I don't need to review thewhole agreement.
I'm not reviewing, for example,like the indemnity clause.
That is of no concern to thecompliance officer.
That is a legal function.
Or the arbitration clause orthe termination language.
The compliance officer isgenerally not concerned with
(29:32):
that.
I totally get that that is alegal function and I don't want
that to come to compliance.
But I do want compliance to beat the table to call out some of
these real compliance issuesaround fair market value and
clear language in there thatsays we won't do X, Y, and Z.
And the anti-kickback statutelanguage should be in there.
(29:53):
So there is a compliance pieceto these contract workflows
within an organization.
And I think this is reallytelling the compliance officer,
if you're not already puttingyourself at that table, you need
to insert yourself in thesediscussions.
Speaker 00 (30:10):
Yeah, I agree.
And I'm going to predict thatother ICPGs that come out are
going to kind of have a similartheme, that the specifics or the
risks might be like thescenarios might be slightly
different.
But the theme of what we justtalked about, I think, is going
to be in those.
So let me kind of shift gears alittle bit here.
And you've shared a lot ofreally great specifics.
(30:33):
And you've already kind ofshared a little bit of this.
So if you don't have more onthis topic, that's fine.
But what does all of thisinformation kind of inform you
about how you're going toapproach and how we should all
approach developing complianceand ethics programs?
I mean, you mentioned a littlebit about it, but anything else?
Of course I have additionalthoughts.
Speaker 01 (30:53):
So, yeah, I think that this is not your seven
elements document, right?
That's a general complianceprogram guidance.
But that being said, thisdocument really shapes how you
approach, I think, two of thoseseven elements.
One is the design of yourprogram, the who is
participating in thesediscussions.
(31:14):
How does the compliance programget involved in areas that have
traditionally been like, Markedas this is clinicals role and
responsibility, or this is legalfunction.
And I think the other piece ofit is obviously the auditing and
monitoring element and riskidentification.
So for me, I was, you know,giving our team a pat on the
(31:36):
back of, I think we've beendoing this.
The right way, everything thatwe approach with.
structuring a complianceprogram, education, designating
roles and responsibilitiesreally jives with what the OIG
is putting out between thegeneral and industry-specific
guidance documents together.
So I feel like we are on theright track in terms of
(32:00):
structure.
Like I said, a few pointsthroughout this conversation, I
definitely have some items on myhomework list that I want to
circle back to our clients toreinforce or maybe do an audit
in an area where we haven'treally taken the initiative as
the compliance team to auditbefore and kind of delegated off
to people.
(32:20):
But for me, I think one of thebig takeaways is structure.
So compliance has to have aseat at the table.
I think that for me, especiallywhen starting with a client
that is building their program,not coming into someone who has
an established program, butsomeone who's building out their
program or formalizing it forthe first time, it's not
(32:42):
uncommon for us to get pushbackfrom other disciplines like IT
or particularly the clinicalteam saying, we don't report to
you.
We're our own vertical withinthe company.
I report to the president orthe CEO, kind of stay in your
lane compliance people.
And I get it.
It's unusual for you to beasked to report to someone who
(33:07):
is not your direct supervisor.
And sometimes, you know, egoscan get involved.
These people have been expertsin their fields for likely
decades.
So sharing your work productwith someone else in
anticipation of getting feedbackor notes feels uncomfortable.
But for me, it's something youhave to overcome to have a
(33:28):
compliance program that isactually effective and working
in the way that the OIG expectsit to work.
Now, for example, let's say Ihave a regional MDS consultant
and this person is going to bemore skilled at reviewing an MDS
and telling you if you havecoded it accurately based on
what's in the medical recordthan your compliance officer.
(33:50):
I expect your complianceofficer to be a generalist and
your MDS consultant or yourregional MDS consultant to be
the expert.
That being said, if thatconsultant finds a error in the
coding of a standalone MDSassessment when they were doing
a proactive, you know, samplesize, randomly selected audit,
(34:12):
and they tell the facility-basedMDS person, oh, I found this
error, you know, correct it andresubmit a modified MDS
assessment.
That might be the end of that.
Yeah.
No one else is told about that.
But if the compliance officerthrough the compliance committee
or whatever other channel theyhave for communication is told
(34:34):
about an improperly coded MDS,as a compliance professional,
I'm thinking, okay, I have a fewquestions.
Was this isolated?
Like what was the cause of theerror in coding?
Was this a misunderstanding ofthe rule and therefore is going
to affect other charts or otherMDS assessments that also need
(34:55):
to be corrected?
How patterned was this?
What's our look back period?
Are we going back the six yearsunder the Medicare A and B 60
day refund rule?
Should we be getting legalcounsel involved right now to
privilege our internal duediligence?
to determine what ouroverpayment liability is.
So I'm not saying what theregional did was incorrect in
(35:17):
directing the facility-basedperson to modify the MDS.
That's absolutely what theyneed to do.
But there is a very bigconversation that that triggers
that when someone who is focusedon their specific role acts
alone and doesn't informationshare, you miss out on the
bigger picture and the actualfalse claims risk that comes
(35:40):
with not sharing thatinformation.
So I think it is a hurdle forcompanies who are developing and
building their complianceprogram to get past some of the
breaking down of the walls andinformation sharing and
integrating and recognizingcompliance as its own discipline
and the compliance officer as aperson that has a distinct
(36:03):
skillset to help the company andnot feel like it's, oh no, it's
big brother watching my everymove, but really acknowledging
that you approach this verydifferently.
Like we are working to solvethe same problem, but we have
different experiences and skillsets that we're bringing to the
table to tackle it.
(36:23):
So I think that that issomething that these two
documents say you need to do areally good job at making sure
these organizations walls arenot built up between the
different verticals within yourcompany.
So I think that that issomething that helps me feel
that as consultants, we've donea really good job.
(36:44):
That is the approach we'vealways taken.
It is information sharing.
So I felt like that wasreinforced throughout these two
documents.
And that kind of, I guess,takes me into this discussion at
the end of this ICPG that theOIG has about who your
compliance officer is.
(37:05):
And I thought that this wasinteresting because in, at least
for skilled nursing facilities,we have a CMS mandate to have a
compliance and ethics programat F895.
Slightly different requirementsif you're five or more
buildings, slightly lighterrequirements if you're four or
fewer buildings, But for thelarger groups, you're expected
(37:27):
to have a compliance officer forwhom compliance is a major job
responsibility, although majorjob responsibility is not
defined.
The OIG in this document in theindustry-specific guidance says
this person should havesufficient experience in
managing both complianceprograms, but also have
involvement in quality.
(37:47):
It's hard for someone that hasno idea what an MDS is to
identify when there's concerns,for example, or that doesn't
really understand the clinicalside or the care that we give to
identify when concerns rise tothe level of substandard care.
So there does need to be somecross-training there.
I think it's probably easierfor chains of nursing homes that
(38:11):
have 20 plus facilities to notonly budget for this position,
but they also probably have alot more people with these skill
sets that they can promote intothe role internally versus
sourcing externally.
I think it is particularly hardfor the people or the groups in
five to 15-ish locationsbudgeting to have a full-time
(38:36):
compliance position, or if not afull-time compliance position,
giving someone who already has afull-time role an additional
responsibility for thecompliance program and giving
them two areas to oversee.
So I just think that it issomething that the OIG notes in
here that really does impact howyou've structured your
(38:59):
compliance program because oftheir emphasis on quality and
really integrating theseprograms as not quality you live
over here and you never have totalk to your compliance officer
because you do two verydistinct functions.
It is making sure that yourcompliance officer has the
requisite authority to do theirjob and the knowledge and
(39:21):
experience to identify the redflags within the quality of
care, discipline, or vertical ofthe company.
Speaker 00 (39:29):
Yeah, Paige, those are great insights, such great
insights.
And I'm glad you kind of talkedabout how it's the two
documents going together.
I think the OIG has really,designed it this way, that the
GCPG is not just something yougloss over, but that's kind of
the prerequisite for readingyour ICPGs.
And so really, I appreciate theway you kind of paired those
(39:52):
two together.
We are kind of coming towardsthe end of our time.
But I wanted to give you sometime to kind of share last
minute thoughts, any takeaways,or maybe something I didn't ask
that you feel is reallyimportant to share.
Unknown (40:06):
Yeah.
Speaker 01 (40:07):
I would say that this is probably a good time for
anyone with an establishedcompliance program that says,
oh, we have a good program inplace, we have a really
qualified compliance officer.
If you haven't done acomprehensive compliance program
review, the timing would beright.
Like I said at the beginning, Ithink there's going to be an
(40:31):
industry focus on enforcementfor skilled nursing facilities.
go back, make sure your I's aredotted, your T's are crossed.
If you rolled out this programand haven't really looked at
your documentation to see howyou're recording it and
supporting it, it's timely to dothat now.
Specifically, I would focus onthe person sitting in the
(40:51):
compliance officer role to makesure, like I said, they have the
requisite authority,independence, and experience to
carry out the role.
At a minimum, I would recommendstarting by looking at who you
have in your compliance officerrole and making sure that person
has the requisite authority,independence, and experience to
carry out their jobresponsibilities.
Second, I would make sure thatyou have a really integrated
(41:15):
compliance department with thoseother disciplines, making sure
that your compliance committeeis effective and that the folks
participating in those meetingsare reporting relevant
information and doing dataanalysis and trending.
And then I would go through thetable of contents of this
industry specific guidancedocument and say, what are we
(41:36):
doing in these areas?
And then document how you riskrank them and prioritize them,
what you're doing for auditingand make sure that you are
ensuring that should the OIG orDOJ knock on your door, you have
good sufficient documentationto show your good faith efforts
that you are respondingappropriately to the guidance
(41:57):
that the government's givingyou.
in your monitoring and auditingprograms.
Speaker 00 (42:02):
Yeah.
And, you know, I think that ata minimum, we should be taking
like these ICPGs and anyspecific risks.
Like, you know, we spent a lotof time at the beginning talking
about AKS and those specificcall-outs.
We should at least on our riskassessments be looking at every
one of those call-outs andquantifying how big of a risk is
(42:22):
this for us?
Or if you could substantiate,you know, we don't, Get involved
in that.
We don't have these pharmacycontracts.
We don't have this or we do.
And to this level, like at aminimum, it feels like our risk
assessment should at least becommenting on each of the call
outs in these ICPGs.
It doesn't mean those are theonly risks.
(42:43):
Of course, there may be others,but it feels like at a minimum,
we should be addressing thoseto your point.
Speaker 01 (42:49):
Yeah, I 100% agree with you.
I really literally feel likeyou could take this table of
contents and cut and paste it.
And then in the column next toit, right?
Like, is this a risk?
Yes, no.
Speaker 00 (42:59):
And why?
What is it?
Speaker 01 (43:01):
For example, you don't have a joint venture.
So you write no and you donothing.
Great.
But we considered whether ornot it was a risk.
And then for any of the yeses,it's How high of a risk is this,
you know, to be really basic,high, low, medium risk?
And when are we going to do anaudit of our risk based on the
priority?
(43:21):
And I think that that is if youdon't have a formalized written
audit program, the basis fordeveloping it.
Speaker 00 (43:31):
Yeah, such great advice.
Paige, you're always amazing totalk to and always share such
great insights.
And you have all of theknowledge, but then also the
practical experience.
I know you're actually workingwith clients in all of these
areas.
And so you've seen what worksand what doesn't work.
And so really appreciate yourwillingness to share your
(43:51):
expertise today.
Speaker 01 (43:52):
I'm happy to be on here and share that feedback.
I think that there is probablya lack of folks that really
understand the skilled nursingindustry specifically in the
compliance discipline.
So I enjoy talking about thisand raising the awareness around
the risks for this segment ofthe healthcare industry.
(44:14):
So thanks for having me.
Speaker 00 (44:16):
Absolutely.
And for those listening, wewill include Paige's contact
information in the show notes.
So if you have questions or ifyou feel like you need her help
or Compligents help, you canhave that contact information.
And thank you to all those whoare always listening.
We always ask this at the end.
If you have a topic that youwant to hear addressed, please
(44:38):
share it with us.
If you have a speaker or anexpert or somebody that you know
that would make a great guest,please pass their name along to
us.
And thanks Again, everyone forlistening.
Until next time, take care.
Popular Podcasts
Crime Junkie
Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies! Crime Junkie is presented by audiochuck Media Company.
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.