LEADERSHIP ASSIGNMENT PART 2

31Journal of Health Care Compliance — March–April 2016 31

SURVEYS JILLIAN BOWER

How Surveys Can Guide Your Health Care Compliance Program

The Use of Surveys Can Be Your Answer to Questions from the Board of Directors

H ealth care compliance surveys provide revealing data on how well an organization’s compliance program is functioning. A professional analysis

of the result data may reveal gaps and weaknesses in the compliance program, as well as areas of risk that warrant attention. On the other hand, the data can evi- dence strengths and positive aspects of the compliance program. Now, more than ever, boards of directors are looking to their compliance offi cers to provide evidence and insight on the effectiveness of the operation of com- pliance programs. In April 2015, the Offi ce of Inspector General (OIG) issued practical guidance to health care governing boards. The OIG states in the guidance that “[b]oards are expected to put forth a meaningful effort to review the adequacy of existing compliance systems and functions.”1 The use of surveys can be your answer to the board’s questions.

The OIG from its earliest compliance guidance docu- ments has recommended the use of “[q]uestionnaires developed to solicit impressions of a broad cross sec- tion” of the workforce.2 Evaluating effectiveness through the use of questionnaires or surveys can measure the compliance culture and/or knowledge of the organiza- tion. The right instrument will evidence the necessary metrics to determine strengths, weaknesses, and over- all effectiveness of the compliance program and can be used to guide your compliance program.

Compliance culture surveys measure the perceptions and attitudes of organizations’ employees on a number of issues as they relate to them personally, their imme- diate work group, their supervisor, and the management of the organization. The purpose of culture surveys is to specifi cally assess the compliance culture and work environment of an organization and assist in the design of or improvements of compliance programs. The results provide important insights as to organization’s strengths

Jillian Bower, MPA, is the vice presi- dent at Compliance Resource Center, LLC, a company that provides com- pliance management solutions. She

works directly with clients delivering employee survey services and analy- sis of results. For more information,

she can be reached at jbower@ complianceresource.com or

at 703/683/9600.

Journal of Health Care Compliance — March–April 2016

Surveys

32

care compliance strategies. Other organiza- tions utilize products already on the mar- ket that offer an off-the-shelf solution. The results of the survey will guide the organi- zation on whether to engage a health care compliance specialist, utilize a solution, or use a combination of both approaches.

When using this approach to evaluate the advancement of a compliance pro- gram, it is important that any survey has been developed properly to ensure consis- tency and accuracy of the results. Just sit- ting down and drafting questions does not do much. In fact, there are many things to consider if we want to use a survey to provide objective and credible information regarding the compliance program. These include data collection method, respon- dent effort requested, question wording, order, format, structure, factors to be mea- sured, and accuracy of the elicited informa- tion, among others.

Although all these issues are important, at the end of the day, what we want is to create surveys that yield results that are valid and reliable. In the case of validity, the concern is the accuracy of the survey method in framing the questions to mea- sure the right things and to ensure the questions adequately cover the subject and the degree in which the results can be gen- eralized to the entire work force. On the other hand, reliability relates to the degree to which the questions used elicit the same type of information each time they are used under the same conditions — and also the consistency by which different questions measure the same characteristic.3

The manner by which the survey is administered is also very important. Employees must know and believe their input is confi dential and cannot be made known to management. Otherwise, the honesty of the answers will be question- able. For results of surveys to be viewed as convincing and credible evidence of how the compliance program is progressing, it is

on which to advance the compliance cul- ture and areas warranting special attention. The compliance culture survey questions should address these specifi c areas: 1. Personal job satisfaction 2. Compliance with laws and regulations 3. Quality of care/service 4. Employee communication 5. Management practices

Compliance knowledge surveys are designed to assess the employees’ level of awareness and understanding of the orga- nization’s compliance program. Organi- zations gain feedback from employees by querying them on their knowledge of the compliance program elements drawn from their general observations and personal experiences. The survey results evidenc- ing employees’ knowledge, awareness, and understanding of the compliance program are used to identify positives and weak- nesses of the compliance program. This kind of survey should specifi cally focus on the OIG’s seven elements of an effective compliance program.

Both survey types provide great insight into the compliance program’s effective- ness. When deciding to conduct an annual survey it is advisable to alternate the sur- vey types each year. Use of the same survey has an advantage to benchmark or measure survey results from the current year against past years. Survey data can also be bench- marked against peer organizations that utilized the same survey. Benchmarking against peers is an invaluable measure- ment that can be gained when working with a fi rm. The OIG in its Compliance Program Guidance for Hospitals states that “[t]he existence of benchmarks that demon- strate implementation and achievements are essential to any effective compliance program.”

Through an analysis of the result data you may fi nd that health care compliance solutions are needed to close gaps or reme- diate risks. Many organizations engage with health care compliance specialists who can provide customized and tailored health CONTINUED ON PAGE 52

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is done professionally and independent of outside infl uences.

Among the areas that survey data fre- quently identifi es that need improvement is written compliance guidance in the form of policies and procedures and code of conduct. They are foundation stones for any effective program, and surprisingly, they are often not properly laid out. For remedial action, there are two common approaches: engage a compliance specialist or purchase policy and procedure templates from a health care compliance specialist or fi rm. Engage with a health care compliance specialist with expe- rience and expertise to update and revise pol- icies and procedures. The advantage is that specialists are knowledgeable on health care laws, regulations, and program rules with which the organization must comply and they know how to interpret those laws, regu- lations, and rules into understandable poli- cies and procedures for the covered parties.

An alternative approach is to purchase compliance policy and document tem- plates from a health care compliance spe- cialist or fi rm. On the market today are companies that specialize in health care compliance, offering suites of compliance policies and document templates. If this is the approach chosen, then it is critical to fi nd a company that has the expertise in health care; maintains templates that are current with laws, regulations, and rules; and uses a template that requires minimal changes and edits by you. The purpose of using a document template is to save you time, but it must be refl ective of the orga- nization and health care sector in which they operate. Any template should be easy to use, easily adaptable to the organization, and require minor reworking on your part.

Another area frequently identifi ed in sur- vey results relates to adequacy of compliance training. When a survey indicates defi cien- cies in this area, the compliance training program will need to be carefully reviewed in content, delivery, and frequency. The survey results should provide direction as to what is needed to be addressed. There are

very important to have the survey adminis- tered by an outside party that can ensure it

Question: What is the most important skill of a compliance offi cer?

Answer: Interpersonal skills are the most important. You have to ask yourself why our profession was created. It was created because business failed to prevent, fi nd, and fi x ethical and regulatory problems. All the elements of a compliance program — audit, risk, education, investigations, et cetera — have been around for years, so doing more of all that is not going to change anything.

We do not have problems fi nding problems in business; we have a problem fi xing prob- lems in business. Enron, WorldCom, Tyco, Penn State University, VW, and many other major failures were discovered years before they were discovered and corrected by the enforcement community. At some point there was at least one meeting of leadership to dis- cuss the problem and determine what to do. In all those meetings everyone in the room decided to do nothing. I assume there were people in the room who wanted to fi x the prob- lem; however, they clearly lacked the ability to infl uence leadership to fi x the problem.

More legal analysis would not have helped; a 5th grader could tell you that some of the problems they discovered and discussed were real. A risk assessment could not have helped Penn State University; they chose to look the other way because there was no one in the room that had the authority and abil- ity to convince leadership to fi x the problem.

To answer the question regarding the most important skill set of a compliance offi cer you have to ask yourself: what was missing from the equation before our pro- fession was created? What was missing when leadership got together to discuss a problem? What was missing was the skill set required to help the others in the room make the right decision.

Journal of Health Care Compliance — March–April 2016 53

REFERRAL COMPENSATION CONTINUED FROM 48

nor any other restrictions on how payment may be structured, is mentioned in the bona fi de employee safe harbor. Further, the safe harbor itself begins with the phrase “any amount paid by an employer …” These observations tend to support the notion that the bona fi de employee safe harbor should protect the per-patient referral fees at issue in Crinel and Starks.

WHAT DOES THIS MEAN FOR PROVIDERS? Per-patient referral fee arrangements are not per se illegal, but neither are they entirely risk-free. First, Crinel is a district court opinion. While the court’s opinion

many health care compliance solutions for training. In today’s tech-savvy work envi- ronment, delivering training online is the most logical and cost-effective solution. The training must be customized to your unique organization and must refl ect relevant com- pliance concerns.

Compliance surveys are invaluable tools to guide your compliance program. The use of surveys and implementation of compliance solutions identifi ed through the survey results can enhance an existing compliance program.

Endnotes: 1. Offi ce of Inspector General, U.S. Department of

Health and Human Services. Practical Guidance for Health Care Governing Boards on Compliance Oversight. 20 Apr. 2015. oig.hhs.gov/compliance/ compliance-guidance/docs/Practical-Guidance-for- Health-Care-Boards-on-Compliance-Oversight.pdf.

2. Offi ce of Inspector General, U.S. Department of Health and Human Services. Publication of the OIG Compliance Program Guidance for Hospitals. 63 Fed. Reg. 35, 8987, 8997 (Feb. 23, 1998).

3. Public Opinion Quarterly, Vol. 68 No. 1 Pp. 109– 130, American Association for Public Opinion Research 2004; Methods for Testing and Evaluating Survey Questions. isites.harvard.edu/fs/docs/ icb.topic1352376.fi les/Presser%20et%20al%20 Cognitive%20Testing.pdf.

was well-reasoned, district court opinions are treated by other courts as persuasive, not binding, authority. And even where the hold- ing in Crinel may apply, a person still has the burden to prove, not only that the payment was made to a bona fi de employee but that the referred item or service was medically necessary under the relevant federal health care program’s regulations and policies. The latter is no easy burden, particularly for post- acute providers who are frequently at odds with Medicare’s administrative contractors over medical necessity issues.

In any event, without any OIG guid- ance, or further decisions by other federal courts, we suggest that, when structuring compensation arrangements for market- ing employees, providers focus particular attention on mitigating the risks of fraud and abuse. As an initial matter, providers should consider compensating marketing employees based on a salary or an hourly wage, rather than a per-patient referral fee. Salaries and hourly wages may provide indicia of a bona fi de employment relation- ship and, unlike per-patient referral fees, may reduce the incentive for referrals to be made without regard to medical necessity.

Similarly, in determining the market- ing employee’s specifi c compensation, including bonuses, we suggest that provid- ers evaluate a variety of factors, includ- ing employee compliance with internal fraud and abuse policies (which every pro- vider, large or small, should maintain and enforce), feedback from referring health care professionals who interact with the marketing employee, and other qualita- tive performance measures. These are just a few examples of useful metrics. Indeed, providers should seek further guidance — based on their specifi c operations — to ensure protection under the exception and safe harbor, while also maintaining effec- tive marketing efforts.

Endnotes: * The views and opinions expressed in this article are

solely those of the authors and do not represent the

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