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HOME HEALTH COMPLIANCE CFG...continued from page 9 What does the agency needs to do....DOCUMENT, DOCUMENT, DOCUMENT. We must not ignore the fact that a taxing effort is still required along with the assistance of others to make the infrequent departures from the home even possible. Charting to the physical and mental effects of the absence on the next visit is essential. Did the patient miss any required treatments or medications? Did the outing aggravate their condition? Quality review of cases on an ongoing basis is vital to assure that no patient’s care is billed for that doesn’t meet all the criteria for receiving home care services. This review needs to include a sampling of all clinicians. Recently at the HCCA Institute held in New Orleans, quality was a topic at several sessions. Quality and Compliance must be intertwined in considering all practices and auditing performed and reported. Education of staff, physicians, and the patient population is also needed. Documentation of these encounters is recommended. Use of newsletters, inservices, and Patient FACT sheets are helpful tools to establish a consistent and defendable standard of practice. We must also remember however that no two patients are alike and individual considerations and decisions will always be expected, based on that particular patient’s condition. ■ CORPORATE RESPONSIBILITY... continued from page 6 July 2003 10 This type of sentence ordinarily would not, by itself, fall outside the definition of “conviction” for purposes of application of the mandatory exclusion authority under Federal health care programs. However, the plea agreement to a count of wire fraud against private payor programs, is not one of the categories for mandatory exclusion, which only relate to convictions involving Federal health care program (Medicare and Medicaid) related crimes; convictions involving abuse and neglect of a patient; convictions involving controlled substances; and convictions involving financial misconduct in other Federal health programs. Furthermore, the Office of Inspector General of Health and Human Services ordinarily does not impose mandatory exclusion as a practical matter until after sentencing in a case. The sentence in this case has not been entered and will not be entered (and in fact the case will be dismissed) as long as the hospital successfully completes the three-year probationary terms under the plea agreement. ■ The Healthcare Compliance ■ Terri B. Graham, CHC Certification Board (HCCB) announced that the following individuals have recently successfully ■ Deborah K. Harder, CHC completed the Certified in ■ Mia G. King, CHC Healthcare Compliance (CHC) examination, thus earning the CHC ■ Michael S. Klueh, CHC designation: ■ Donna J. Montmeny, CHC ■ Charles T. Bent, CHC ■ Tammy E. Nichols Ripa, CHC ■ Janis W. Cogley, CHC ■ Stephanie Coleman, CHC ■ Janice A. Ortiz, CHC ■ Alberta N. Craven, CHC ■ Barbara J. Wolf, CHC ■ Kent C. Fosha, CHC ■ Eric B. Zimny, CHC ■ Update your Member Information! Check your information on the HCCA Members Only section of the HCCA website, http://www.hcca-info.org, and email your update information to info@hcca-info.org.
COMPLIANCE FOCUS GROUP PAYOR/ MANAGED CARE Conflicts of interest in payor and managed care organizations by Robert A. Freeman and Vickie McCormick Editor’s note: Robert A. Freeman is Associate General Counsel and Compliance Officer with Blue Cross and Blue Shield of Massachusetts, Inc. He can be reached at robert.freeman@ bcbsma.com. Vickie L. McCormick is Special Counsel with Halleland, Lewis, Nilan, Sipkins & Johnson. She can be reached at vmccormick@halleland.com This article was submitted to Compliance Today by the Payor/Managed Care Compliance Focus Group (CFG). Please contact Vickie McCormick to learn more about the activities of the Payor/Managed Care CFG. One common thread running among the corporate scandals exposed during the past few years is that the tainted companies failed to guard against conflicts of interest. It has long been best practice among payor compliance programs to educate employees about conflicts of interest and resolve conflicts that inevitably arise. The importance of addressing conflict is even greater now, where government actions have ranged from enactment of the Sarbanes-Oxley Act 1 to a series of investigations of health plan business practices by the Minnesota Attorney General. 2 This article will summarize some questions to consider in designing a compliance program to address conflicts of interest, and will present some tips on how to resolve conflicts identified by a compliance program. What is a conflict of interest? The simplest definition of a conflict of interest for these purposes is when one’s personal interests are inconsistent with the best interests of the organization. Employees’ duty of loyalty to their employer arises out of corporation statutes, common law, tax-exemption rules for non-profit organizations, and, in some cases, employment contracts, codes of conduct, and employee handbooks. This duty requires employees to act with the interest of their employer as the uppermost guide for their conduct. 3 Types of conflicts of interest Conflicts can be divided into the following somewhat arbitrary categories: ■ Actual conflicts of interest. These are direct and immediate conflicts between an individual’s and an organization’s interests. ■ Potential conflicts of interest. These are situations where there is no immediate conflict, but the prospect of a direct conflict can be readily foreseen. ■ Apparent conflicts of interest. These are situations where there may not in fact be a direct conflict, but people unfamiliar with all the facts and circumstances of the situation may reasonably believe an actual or potential conflict a exists. ■ Indirect conflicts of interest. These are situations where there is an actual or potential conflict between the interests of the employer and an employee’s close family or friends. ROBERT A. FREEMAN Why are conflicts of interest problematic? Conflicts of interest can expose payors to liability in a number of ways. Depending on the nature of the conflict, and how it is handled, a payor could face liability under federal statutes, such as the Anti-kickback Act, the False Claims Act, and ERISA. They could also face liability under analogous state statutes as well as under claims alleging bribery or a breach of fiduciary duties. Enforcement could include shareholder derivative actions and challenges to a non-profit organization’s tax-exempt status. Just as important, revelation of a conflict of interest can harm an organization’s reputation and public image. Trust built up over years can disappear in moments when a scandal erupts. Firms may expose themselves to all sorts of external criticism–from derogatory views of the company’s integrity to allegations from jilted vendors that they were denied opportunities because they lacked equal unfair access to decisionmakers. Moreover, companies that fail to deal with conflicts of interest may Continued on page 12 11 July 2003
Page 1 and 2: Volume Five Number Seven July 2003
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