WILEMS RESOURCE GROUP
HEALTH CARE Compliance & engagement Solutions
So, you’re participating in an ACO and operations are underway. The analytics team is running numbers. The Chief Medical Officer is working to identify populations of beneficiaries who will be well-served by the care coordination program that your ACO Executive is diligently overseeing. These interwoven components are all necessary to the success of your ACO, but who is making sure the ACO is meeting all of the regulatory requirements?
Under the Medicare Shared Savings Program Final Rule and the Next Generation ACO Model Participation Agreement, ACOs are required to have a Compliance Program that includes a designated Compliance Official or individual who is not legal counsel to the ACO and reports directly to the ACO’s Governing Body. Identifying the right person to fill this position can be complicated. Identifying the wrong person can cost your ACO time, money, and the ability to participate in federal healthcare programs. So, how should your ACO define the role of the Compliance Official and find the right person?
The Compliance Official cannot be legal counsel to the ACO. Many new ACOs use their trusted attorneys to set up the ACO and a legal entity and guide them through the application phase. It makes sense that they would turn to this same individual as they begin to implement the ACO’s compliance requirements. If this is the natural progression, why would CMS specifically prohibit the ACO from hiring a Compliance Official who is also legal counsel to the ACO? It boils down to one simple truth: The role of legal counsel is inherently at odds with that of a Compliance Official. Think about it this way – the Compliance Official serves to maintain the integrity of the ACO program whereas Legal serves to maintain the integrity of the organization. While both roles are focused on managing and preventing risks, there are significant differences in how they should approach those roles. The Compliance Official should be proactively seeking out compliance concerns, implementing the monitoring and oversight process and documenting how the ACO responds to the identified issues of non-compliance. On the other hand, Legal should be assessing the risks to the organization associated with identified non-compliance. This “at-odds” scenario can play out when the ACO attempts to determine whether or not to formally report a compliance issue to CMS.
The Compliance Official can be an attorney. Just because CMS doesn’t allow the ACO Compliance Official to be the legal counsel to the ACO, doesn’t mean that individual cannot be an attorney. In fact, most have a law degree.
The Compliance Official should work closely with Legal. The structure of your ACO will largely determine the most effective way for your Compliance and Legal teams to work together. In an ideal world the two would be down the hall from one another and stop by on their way to the break room to hash out any concerns. Realistically, technological advances and the nature of ACO structures mean that this is not the norm. Compliance and Legal may be in different locations, maybe even in different states. Regardless of location, they should work closely with one another. With each individual filling their appropriate role and responsibilities, the ACO can prevent, detect and correct issues of non-compliance and balance any legal risks that may arise as a result.
The Compliance Official should understand their responsibility. The most important step in ensuring that Compliance and Legal work effectively together is to draw clear lines of responsibility. Implementation of Fraud, Waste and Abuse waivers are an excellent example of how ACO Operations, Compliance, and Legal can all collaborate (without stepping on toes):
Operations identifies a new initiative to improve outcomes, lower costs or increase beneficiary engagement
Operations works with Compliance to identify whether a waiver is appropriate and to document the details of the new initiatives.
Compliance works with Legal to assess the compliance and legal risks of the waiver usage and ensure documentation is sufficient to support the ACO in the event of a legal issue and a CMS audit.
Compliance works with Operations to obtain necessary approvals from the Governing Body and to oversee continued compliance with any program requirements.
Note: Your ACO does not have to split the responsibilities in exactly this way. The important thing is to make sure everyone understands their respective roles and comes to the table when it counts. Open communication between ACO departments is absolutely critical for the overall success of the program.
The Compliance Official should have many skills. Not only should the Compliance Official have extensive knowledge about ACO regulatory requirements and other applicable healthcare laws but be able to effectively operationalize and communicate regulations across ACO leadership and departments. The Compliance Official must understand the specific nature of ACOs, how they operate in the real world, and how to be audit-ready. One of the most important aspects is to serve as a liaison between the ACO and CMS.
The Compliance Official should have authority. Beyond finding the right fit for a Compliance Official, the ACO leadership must be committed to supporting the Compliance Official’s authority. Without the ability to enforce compliance requirements and standards, your Compliance Official cannot be effective.
Although finding the right person to serve as the ACO Compliance Official can be difficult, the position is critical to building a successful ACO. Wilems Resource Group offers a variety of materials and services to help your ACO Compliance Official build an effective Compliance Program and stay up to date on regulatory requirements. Contact us to learn more.
Kimberly Busenbark & Maddie Short, Wilems Resource Group
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