Friday, April 20, 2012

How to Help Ensure Adequate Supervision of Home Care Staff in Order to Avoid Negligence and Allegations of Fraud and Abuse

Home care is different from institutional care in a number of ways.  One crucial difference is that field staff members are essentially working without direct supervision on a routine basis.  The cost of providing direct supervision for staff as they provide services to home care patients is prohibitive.  Consequently, providers are vulnerable to claims that they failed to adequately supervise staff.  These claims may include allegations of negligence and fraud and abuse. 

Perhaps the greatest risk involves staff members who say they made visits that they really did not make.  Changes in patients' conditions may not be addressed when visits are missed.  Visits that are claimed, but turn out not to have been made after all, are also a common basis for allegations of fraud and abuse.

In view of inherent limitations on agencies to directly supervise field staff, what is the applicable standard of care that must be met?  Generally speaking, appropriate supervision means that agencies must make reasonable efforts to ensure that field staff meet applicable standards of care.  Reasonable efforts to ensure adequate supervision may include the following:

-        New employees may be required to make several visits with experienced employees with proven track records so that any deficiencies in abilities or practices of new staff can be determined as quickly as possible.  The results of these visits must, of course, be documented.

-        Agencies should develop and implement a policy and procedure that requires random supervisory visits.  Thereafter, managers should make "unannounced" supervisory visits to patients' residences at all hours of the day and night so that employees understand that they may be directly supervised at any time without notice.

-        Managers may also wish to investigate commercially available systems for tracking the arrival and departure of field staff members at each patient's home.  These systems may require staff to place a telephone call that registers in a computer when they arrive at patients' homes and again when they depart. 
Of course, these systems are not foolproof.  Instances have been reported in which staff members paid patients and/or family members to call in for them as though the worker arrived and departed patients' homes.  To the extent that the use of such systems makes it clear that agencies are using reasonable means to help verify that services were actually rendered, even if the system is circumvented, it helps to ensure that agencies have adequately managed risks associated with visits that are not made as scheduled.

-        Agencies should also develop and implement policies and procedures that require patients and/or someone else present in patients' homes when visits are made to sign a document verifying that services were provided.  If the patient cannot sign and no one else is present to sign, staff should be required to provide a detailed explanation for missing signatures.

-        Quality assurance staff should conduct retrospective audits to make certain that signatures from patients and/or family members verifying services are routinely obtained.  When there are a number of instances in which specific staff members failed to obtain signatures as required, despite the presence of a written explanation, further investigation must be conducted to determine why signatures are missing on multiple occasions.

-        Agencies should continue to use patient satisfaction surveys to assist them to satisfy their obligation to monitor workers.  Agency staff members sometimes correctly observe that most of the surveys returned by patients fall into a category that can best be described as: "We love our nurse!"  Nonetheless, valuable information can occasionally be gleaned from surveys.

For example, a patient of an agency responded to a survey by saying that he was quite pleased with the care provided, but wished that the agency would not send a different nurse every day.  The staff was initially quite puzzled by this response since their records showed that the same nurse had visited the patient each day.  Following further investigation, however, the staff was astounded to learn that the agency worker was "subcontracting" the care of the patient to members of an extended family so that, indeed, the patient was being cared for by a different "nurse" each visit!

It is impossible for agencies to duplicate the supervision provided by institutional providers.  Nonetheless, reasonable efforts to supervise field staff will work in agencies’ favor when workers' performance is scrutinized.

©2012 Elizabeth E. Hogue, Esq.  All rights reserved. 

No portion of this material may be reproduced in any form without the advance written permission of the author.

Tuesday, April 10, 2012

Proposed One Year Delay of ICD-10

As many of you may have heard, yesterday HHS announced a proposed rule that would delay the compliance date of ICD-10 for one year, from October 1, 2013 to October 1, 2014.

While we have stated our opposition to a delay, we are pleased that HHS has issued a proposed date so that people can move forward and properly plan with a new date in effect.

We also applaud HHS for addressing the added costs this delay will cause. They state a 1-year delay would add 10 to 30 percent to the cost—or $1 to 6.4 billion— for entities that have spent or budgeted for the transition. It’s disappointing that those who were properly preparing will incur these penalties, but what’s more of a concern is the message it sends about the ability to procrastinate. While some organizations may think, “Why should we prepare early, we might get penalized,” that’s not a gamble we would want to take.

Despite the fact that groups like the AMA opposed ICD-10 because of it’s financial burden, HHS explains the reason for a delay is to allow ample time between implementation of Version 5010 (now going into effect June 2012), which is needed before ICD-10 can be implemented.

One thing is clear in the HHS proposal. They have no intent to completely kill ICD-10 and move to ICD-11. ICD-10 is coming, albeit a year later than anticipated, and organizations need to prepare.

What now? Organizations will need to re-evaluate their timelines. If you were behind the ball before, now is your chance to get on track. If you were already on track for the 2013 deadline, it doesn’t mean you can do nothing for the next 12 months. Spend the time improving on any weaknesses such as documentation by clinicians and work to cultivate relationships between clinicians and coders. Here are 10 more steps you can take to be properly prepared.

As always, we are here to help make the transition to ICD-10 as easy and pain-free as possible. We’re confident everyone can meet the final compliance date and it will make our healthcare system more efficient and cost effective.

Tell us in the comments, how do you feel about the one year delay?

Tuesday, April 3, 2012

OIG Says Use of Discount Coupons Is Permissible Under Certain Circumstances

The Office of Inspector General (OIG) posted Advisory Opinion No. 12-02 on March 27, 2012.  In this Advisory Opinion, the OIG concluded that providers may post discount coupons on websites for their services and products that patients may download and utilize, so long as appropriate safeguards are in place.  The Requestor of the Advisory Opinion proposed to contract with physicians and other providers and suppliers who want to post discount coupons for health care items or services on the Requestor’s website.  According to the Requestor, coupons may include discounts on items or services that are reimbursable by Federal health care programs; such as Medicare, Medicaid, Medicaid waiver, and TriCare; if they comply with all applicable requirements.  Coupons for free items or services are prohibited. 

It is also important to note that the Requestor does not make referrals to providers and suppliers who elect to post discount coupons.  Providers and suppliers who want to post discount coupons will pay the Requestor a flat fee to do so.  Otherwise, there is no financial relationship between the Requestor and providers and suppliers who post coupons.

In its analysis of this proposed arrangement, the OIG first notes that the arrangement involves two activities that may implicate the anti-kickback statute: (1) Selling advertising space on the website to health care providers and suppliers that may bill Federal health care programs and (2) Posting providers’ coupons for health care items or services on the website.  According to the OIG, the coupons could also implicate the civil monetary penalty provision prohibiting inducements to beneficiaries.

The OIG went on to say that both posting coupons and advertising on the website constitute advertising activities that are clearly meant to induce use of an item or service.  In evaluating marketing or advertising, the OIG considers a number of factors, such as the identity of the party engaged in the marketing activity and the party’s relationship with its target audience, the nature of the marketing activity, the item or service being marketed, the target population, and any safeguards to prevent fraud and abuse. 

The OIG based its conclusion that the proposed activity is of low risk upon the following factors:

(1)    The Requestor is not a health care provider or supplier.

(2)    Payments from providers and advertisers to the Requestor do not depend in any way on customers using the coupon or obtaining services from providers or advertisers.

(3)    Advertising under the proposed arrangement may take the form of banner or pop-up advertisements on a publicly accessible website that are not directed at specific customers visiting the website.

(4)    Coupons on the website are like coupons that consumers receive via the mail.  Customers do not pay for the service and have no up-front investment, so the risk is low that providers’ or suppliers’ judgment would be improperly influenced to render unnecessary or inappropriate services based on customers’ possession of coupons. 

The OIG also addressed risks associated with the content of coupons and also concluded that the arrangement is of low risk for the following reasons:

(1)     Coupons on the website would be for a reduced price or percentage reduction on particular items or services and discounts would benefit both payors and patients, so that federal health care programs would benefit from reduced costs associated with coupons.

(2)    Terms of Use on the website require providers to comply with the discount safe harbor under the anti-kickback statute. 

Based upon the description of the proposed arrangement provided by the Requestor of the Advisory Opinion, the OIG concluded that arrangement does not constitute grounds for imposition of civil monetary penalties.  The arrangement also does not trigger administrative sanctions under the federal anti-kickback statute.  Unless this type of arrangement is prohibited by state law, therefore, providers may post discount coupons on websites consistent with the OIG’s guidance.

©2012 Elizabeth E. Hogue, Esq.  All rights reserved. 

No portion of this material may be reproduced in any form without the advance written permission of the author.