Healthcare Compliance: What Shade of Gray Are You?

Because law is black and white, your organization is at risk in the gray zone.
By Jacqueline Nash-Bloink, MBA, CHC, CPC, CPC-I, CMRS
Healthcare compliance may not be as steamy as the novel Fifty Shades of Grey, by E.L. James, but the U.S. Department of Health & Human Services (HHS) and the U.S. Department of Justice (DOJ) have been doing a good job of heating things up ever since the two agencies partnered to create H.E.A.T. ( in 2009. Their goal: Expose the many shades of fraud, waste, and abuse in Medicare and Medicaid.
Long before H.E.A.T., in October 2000, HHS gave notice in the Federal Register of the Office of Inspector General’s (OIG) Compliance Program for Individual and Small Group Physician Practices. The government mandated hospitals as of 1997 and nursing homes as of 2008 (delayed until March 2013) must have formal compliance programs in place if they bill Medicare and Medicaid. The OIG has not set a date for mandatory compliance programs in physician practices, but the requirement has been imposed under the Affordable Care Act, so it’s just a matter of time. Many physician organizations have been proactive, and are setting up compliance programs now, as recommended by the OIG and the Centers for Medicare & Medicaid Services (CMS).
If compliance is the new buzzword in healthcare, why do we still hear daily reports about healthcare entities, professionals, and providers being fined millions of dollars, excluded from working in healthcare, and even jailed due to fraud, waste, or abuse? I have a theory.

Compliance Requires Courage
and a Culture that Cares

Although most organizations have the power to identify and stop fraud, healthcare organizations and employees often risk operating in compliance “gray zones.” Why? I believe it’s the fear of retaliation that hinders many coders, billers, compliance professionals, compliance committees, and boards from standing up to the individuals who break the law, either due to ignorance or for monetary gain. The Federal False Claims Act 31 U.S.C. 3729-33, which protects “persons of conscience” from retaliation, is not enough to encourage many employees to come forward with knowledge of wrongdoing.
The Society of Corporate Compliance and Ethics (SCCE) stated that 60 percent of compliance and ethics professionals reported that they considered leaving their job in the last 12 months due to job related stresses. SCCE and Health Care Compliance Association’s CEO Roy Snell stated in 2012, “Compliance professionals, who are asked to do this difficult job, need support from leadership, reasonable authority and independence. If society wants us to deal with these issues—so difficult that others have chosen to look the other way—then society should make an effort to support this profession.”
According to Susan Ladika, author of Whistling While You Work, “It comes down to creating a culture where employees feel safe to come forward when they witness illegal or unethical behavior, and making sure they’re treated like heroes rather than outcasts.”

Create an Environment
that Encourages Compliance

Coders, billers, and compliance professionals accept a code of ethics upon certification. It’s time for senior management, providers, boards, and compliance committees to take compliance seriously, and to create an environment that encourages honesty and integrity.
A few examples of an organization’s (or a compliance professional’s) efforts to guard against fraud, waste, and abuse might include:

  • Implementing a compliance committee
  • Setting up a compliance provider educational series
  • Presenting information to all employees during the new hire human resources orientation

These steps are in addition to establishing a user-friendly compliance policy as a daily tool in your organization. “User-friendly” is the key word. If the policy is worded so employees don’t understand it, is too long for staff to read, or is threatening, it won’t do anyone any good.
Compliance professionals should also look for a high-level leader in the organization who will be a champion (an ethical example) and support system for the compliance professional. This leader could be a physician or senior management.
Compliance professionals also should look for opportunities to speak to AAPC local chapters and medical associations on the importance of an active and ethical compliance program in all healthcare organizations.

Other Solutions to Ensure Compliance

Consider the possibility of healthcare organizations contributing the compliance professional’s salary amount (including benefits) to a federal or state agency in an escrow-type account. The compliance professional would still report to senior management or boards, but would also have a secondary reporting system to the federal or state agency if he or she felt that the healthcare organization was not following the law. This “dual employment” type arrangement between the private healthcare organization and the government might remove the stress many compliance professionals feel when it comes to enforcing compliance, or dealing with non-compliant management or boards. And healthcare organizations might be less likely to “knowingly” submit false claims if they knew the compliance professional’s loyalty was to both them and to the government. Such an arrangement would eliminate the need for whistleblowers because the compliance professional would be expected to communicate with both the employer and the government about compliance issues in the organization. This might seem complicated, but if private healthcare organizations and CMS, HHS, DOJ, and OIG put their heads together, this could be a win-win scenario for everyone (especially for the tax payer).
Whatever solution your organization arrives at, it must allow for non-retaliatory communication, where issues are discussed and problems are solved without placing the compliance professional in a situation where he or she feels like a victim.

Fraud Is Real; Protect Yourself

Ex-chief financial officer of HealthSouth, Aaron Beam, went to prison for his role in a $2.8 billion fraudulent scheme. Although he is excluded from working with any entity that receives federal money (i.e., Medicare or Medicaid), he now speaks against fraud and is a champion for ethics in all organizations. Beam has been quoted as stating, “Wrong is wrong even if everyone is doing it. Right is right even if no one is doing it.” Let’s learn from those who fell before us, and do what is right. Dust off that compliance plan, update it, and use it to protect your organization and yourself.

Jacqueline Nash-Bloink, MBA, CHC, CPC, CPC-I, CMRS, is the director of compliance in Tucson, Ariz., an independent healthcare compliance consultant, and an instructor for online education. Her articles have been published by AAFP’s Family Practice Management, AAPC Cutting Edge, and Medical Practice Digest. Nash-Bloink is a member of the AAPC Tucson, Ariz., local chapter.
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Renee Dustman, BS, AAPC MACRA Proficient, is managing editor - content & editorial at AAPC. She holds a Bachelor of Science degree in Media Communications - Journalism. Renee has more than 30 years' experience in journalistic reporting, print production, graphic design, and content management. Follow her on Twitter @dustman_aapc.

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