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Client Alert: Get With the Program

A Quick Recap of OIG’s Nursing Facility Compliance Program Guidance

Date: January 27, 2025
On November 20, 2024, the U.S. Department of Health & Human Services Office of the Inspector General (“OIG”) released its Nursing Facility Industry Segment-Specific Compliance Program Guidance (the “Nursing Facility ICPG”). The Nursing Facility ICPG provides analyses, discussion, and recommendations relating to compliance considerations for nursing facilities and supplements similar OIG guidance from 2000 and 2008. The Nursing Facility ICPG improves upon prior guidance by setting forth recommendations in a “user-friendly” format, with a discussion of more recent areas of focus for compliance (e.g., infection control, alternative Medicare reimbursement programs, etc.). Key takeaways include:

NURSING FACILITY ICPG AS SUPPLEMENTAL TO BROADER OIG GUIDANCE

The Nursing Facility ICPG should be reviewed against the broader compliance framework outlined in OIG’s General Compliance Program Guidance (“GCPG”). The GCPG outlines OIG’s “seven elements” for compliance program infrastructure:
  • Written policies and procedures
  • Compliance leadership and oversight
  • Training and education
  • Effective lines of communication with the compliance officer and disclosure program
  • Enforcing standards: consequences and incentives
  • Risk assessment, auditing, and monitoring
  • Responding to detected offenses and developing corrective action initiatives

The Nursing Facility ICPG offers more pointed guidance and recommendations specific to nursing facilities (discussed below). Providers should note, however, that the Nursing Facility ICPG does not alter applicable Medicare Requirements of Participation.

EXPANDED FOCUS ON COMPLIANCE AREAS RELEVANT TO NURSING FACILITIES

In its 2008 compliance guidance (noted above), the OIG provided analyses and recommendations regarding areas of unique concern for nursing facilities, including:
  1. Quality of care (e.g., sufficient staffing, comprehensive resident care plans, medication management, appropriate use of psychotropic medications, and resident safety); and
  2. Submission of accurate claims (e.g., proper reporting of resident case-mix by SNFs, therapy services, screening for excluded individuals and entities, and restorative and personal care services).
The Nursing Facility ICPG expands upon the 2008 guidance,  accounting for developments in the nursing facility industry in the intervening years, including with respect to:
  • Staffing shortages and competencies
  • Appropriate resident activities
  • Challenges due to demographic changes in the resident profiles and higher resident acuity levels
  • Proper billing in connection with:
    • The SNF Prospective Payment System (PPS) Payment Driven Payment Model (PDPM)
    • Value-Based Payment Models and Programs
    • Medicare Advantage and Medicaid Managed Care
    • Medicare Part D
    • Medicare Health Plan Enrollment for Nursing Facility Residents

The Nursing Facility ICPG also provides insights on key fraud and abuse laws (e.g., the Anti-Kickback Statute) in the context of relationships among nursing facilities and other providers, such as hospitals, hospice providers, pharmacy suppliers, and physicians. Key relationships noted and discussed include care coordination and value-based care arrangements as well as joint ventures.

USER-FRIENDLY APPROACH

Beyond expanding upon prior OIG compliance analyses, the Nursing Facility ICPG also incorporates visual cues to help ensure readability and ease of reference. Such visual cues include “sidebar” text highlighted in light blue providing background information on areas discussed, gold-colored text in large print highlighting important concepts, and a “lightbulb” icon denoting specific recommendations:


This approach is similar to that used under the GCPG, which used the “Tip” icon for a similar effect:


The Nursing Facility ICPG also includes embedded links to various resources, both from the OIG and otherwise, including a link to a “Reimbursement Supplement” provided by OIG that outlines nursing facility reimbursement under the Medicare and Medicaid programs.

WHAT THIS MEANS FOR PROVIDERS

Nursing home providers should review the Nursing Facility ICPG and its recommendations closely, particularly those denoted by the above “lightbulb” icon. These recommendations generally outline best practices applicable to providers across the long-term care industry. The Nursing Facility ICPG (as well as the above guidance from 2000 and 2008) is available on the OIG website (https://oig.hhs.gov/).

If you have questions about the Nursing Facility ICPG or about the establishment and maintenance of an effective nursing home compliance program (including guidance on key regulations and laws impacting nursing homes and nursing home reimbursement), please contact krene@whitefordlaw.com.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.