Breaking Compliance News Blog

The end of 2013 finds the OIG finishing the year with a flourish in the arena of its skilled nursing enforcements. A company that owns nursing homes and therapy companies recently settled a whistleblower case for $48 million, one of the largest nursing home Medicare recoveries in U.S. history. In the settlement, the company also agreed that each of the six involved facilities would be bound by the terms of a five-year corporate integrity agreement (CIA) with the Office of Inspector General. The CIA and the single, lump sum $48 million payment go toward settling claims of overbilling the government for unnecessary therapy services provided to Medicare patients.

Remember the romantic comedy-drama Say Anything? The film's iconic scene has broken-hearted Lloyd (John Cusack) wooing Diane (Ione Skye) from beneath her window, Romeo-style. He is holding aloft a boom-box (remember those?) blaring Peter Gabriel's classic In Your Eyes. Diane, the class valedictorian, had dumped slacker Lloyd at the "suggestion" of her father, Jim. But when Diane discovers that her father has been stealing from the residents of the retirement home he owns, Diane returns to Lloyd and bitterly rejects her father who winds up in a federal penitentiary. Apparently, some nursing home employees haven't seen this movie. Or perhaps they think they can avoid detection better than Jim Court did in Say Anything.

A recent front-page USA Today article revealed a number of cases of theft from nursing home resident trust funds. The article cited employee thefts at nursing homes in amounts as high as $350,000 prompting U.S. Senate Aging Committee Chairman Bill Nelson to request a federal investigation into oversight of nursing home management of resident funds.

The OIG views trust fund theft as a resident rights issue, and thus a compliance issue. Included in the OIG Compliance Program Guidance for Nursing Facilities is the "failure to safeguard residents' financial affairs" as a compliance risk area. Failure to safeguard resident funds can also result in violations of federal and state theft, and fraud and abuse statutes. Anaccounts-receivable clerk at a facility in Connecticut who wrote 36 checks from resident trust accounts in amounts from $500 to more than $6,500 received a seven-year prison sentence and must repay the $140,170 she stole. Other fallout from detected trust fund theft includesdamage to the reputation of the facility, and to the emotional status of the vulnerable residents who have relied upon and trusted the home and its staff.

The USA Today article indicated that embezzlement of resident trust funds goes undetected because the funds are often managed by a single employee who works without oversight. A better practice would be to broaden surveillance by assigning resident trust fund duties and responsibilities between at least two employees who are trained to look for irregularities. Implementing policies, procedures and training programs on anti-fraud and abuse that specifically mention trust fund theft can also help protect resident trust funds.

Another way to deter and detect resident trust fund theft is to add these funds to routine audits and unannounced probes performed by internal or external auditors. Adding audits and probes performed as part of accounting processes to compliance auditing and monitoring is a good example of leveraging existing functions to enhance and augment the nursing home's compliance status.

Another approach is to enhance the nursing home's culture of compliance. The OIG emphasizes the value of a culture of compliance in skilled nursing facilities. One benefit of a culture of compliance is that employee behavior, rather than being driven by the desire to avoid detection and penalty, is driven instead by the desire to do the right thing. Employees so driven tend to do the right thing when no one is looking. And most of the time, no one is looking.