Annals of Health Law
READY OR NOT
false claims liability are particularly high for entities submitting quality data
pursuant to a VBP program.282
In order to carry out the hospital’s obligations with respect to
overpayment monitoring, the compliance department should oversee the
process of confirming and quantifying a suspected overpayment.283 This
process can be especially complicated and burdensome in the VBP context
when the overpayment consists of an incentive payment based on the
hospital’s Total Performance Score that is believed to be compromised by
false quality data associated with the underlying quality measure scores.
An evaluation of the overpayment would involve a review of quality data
over an entire performance period for each quality measure and all patient
records comprising each measure as well.284 Depending on the scope of the
apparent inaccuracies, compliance professionals may be managing the
review of substantial numbers of medical charts, billing records and clinical
quality measures data, which may ultimately necessitate hiring an outside
D. Back to the Compliance Basics: A Robust Compliance Program
Of utmost importance, the organization’s compliance plan program must
be robust and comprehensive. Before PPACA, hospital compliance
programs were voluntary albeit highly encouraged. With the passage of
PPACA in 2010, however, the Secretary of HHS gained authority to render
compliance plans mandatory for hospitals, among other health care
providers.286 Specifically, the Act provides that health care providers must
establish a comprehensive compliance program that contains certain “core
elements” as a condition of enrollment in government programs.287
In late 2012, CMS issued the much-awaited guidance regarding exactly
what components of a compliance program are now mandatory. CMS
282. See id.
283. See, e.g., Chananie, supra note 198.
284. See id.
285. See id. (describing the responsibilities associated with evaluating an overpayment
in the scenario of basic billing fraud).
286. See Patient Protection and Affordable Care Act, Pub. L. 111-148, §6401, 124 Stat.
119 (2010) (instructing HHS to impose deadlines for mandatory compliance program
implementation for providers or supplier by industry category; as of the time of this writing,
these deadlines had not been established, with the exception of Guidance as to Sponsors,
which is discussed herein).
287. See id; see also U.S. C. § 1395cc(j)( 8) (“[ A] provider of medical or other items or
services or supplier within a particular industry sector or category shall, as a condition of
enrollment in the program under this title, title XIX, or title XXI, establish a compliance
program that contains the core elements. . .with respect to that provider or supplier and
industry or category.”).