Management Performance Associates

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Compliance is mandatory

SNFs have historically been encouraged by the OIG—but not required—to have compliance programs. The Affordable Care Act (a/k/a/ the Health Care Reform Law) mandated compliance programs in all nursing facilities by March 23, 2013. This means that nursing facilities without compliance programs are in violation of the law.

Is the mandatory compliance program requirement enforced?

Good question. The Affordable Care Act required the Department of Health and Human Services to promulgate regulations implementing the compliance program mandate by March 23, 2012. The Department has not yet issued these regulations–but could do so any day.

Some people have heard CMS verbally advise that it will not enforce the mandate until the regulations are issued. The reasoning behind this is likely that, because the regulations will guide providers in implementing compliance, it is not fair to penalize providers until the regulations are available. However, providers should be cautious: a verbal statement from CMS is not binding. No formal guidance delaying enforcement of the mandate has been issued by CMS, the Office of Inspector General, or any other federal agency.

Providers without compliance programs are in violation of the law.

March 23 Came and Went – Now What?

Can’t we wait until the regulations are issued?

We don’t recommend it. Because we don’t know when enforcement will happen or what it will look like, it is better to be safe than sorry. Plus, we don’t know if the regulations will – or won’t – include a grace period before enforcement begins. Because it can take at least a year to implement an effective compliance program, once enforcement begins, it’s too late to start. Remember the first HIPAA penalty issued in 2011, for $4.3 Million? That came as quite a shock to all who were used to a non-enforcement era for HIPAA. By implementing compliance now, you can avoid being the first example of enforcement.

Even if the compliance program mandate didn’t exist, a compliance program is still essential to avoid penalties under the heavily enforced health care laws. The government may mitigate penalties if you have an effective compliance program in place, and you are much more likely to prevent violations of health care laws if you have a robust compliance program.

Condition of enrollment

The Affordable Care Act also requires all providers to have compliance programs as a condition of enrollment in Medicare or Medicaid. The Act does not say when this requirement will become effective, or how it will be enforced–but we know that providers without compliance programs will not be able to participate in (bill) Medicare or Medicaid.

Don’t wait for the ACA

Other Federal agencies – DOJ and OIG, for example – are not waiting for regulations to be published under the ACA. They are pursuing false claims aggressively; they have all the authority they need to prosecute offenders and are on record as strong advocates of compliance plans.

MPA can help

For more information, see MPA’s Compliance Services, or contact:
Margaret Scavotto
Director of Compliance Services
314-434-4227 ext. 24

Myth #11

The government will go easy on me if it is my first offense.

The Truth:

The OIG doesn’t give out warnings.