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

By: Elizabeth E. Hogue, Esq.

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.

OIG Says Use of Discount Coupons Is Permissible Under Certain Circumstances

By: Elizabeth E. Hogue, Esq.

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.

Fraud and Abuse Hurts Everyone in the Homecare Industry

By: Elizabeth E. Hogue, Esq.

The U.S. Department of Justice has alleged that privately held hospice care provider, AseraCare, submitted false claims to the Medicare Program [United States ex rel. Richardson and Brown v. Golden Gate National Senior Care LLC dba Golden Living et al, No. 2:09-cv-00627, U.S. District Court for the Northern District of Alabama]. AseraCare is owned by Golden Living Communities and has 65 locations in 19 states. Specifically, enforcers claim that AseraCare filed claims for hospice care provided to patients who were not terminally ill with a life expectancy of six months or less.

The Justice Department joined a whistleblower or qui tam lawsuit filed in 2009 by two former employees of AseraCare, Dawn Richardson and Marsha Brown.  The False Claims Act allows private citizens with knowledge of fraud to file whistleblower suits on behalf of the United States and to share in any monies recovered.  If the United States intervenes in a lawsuit, as it has in the AseraCare case, and proves that AseraCare submitted false claims, AseraCare may have to pay three times the value of false claims submitted and a penalty of between $5,500 and $11,000 per claim.  Agencies that have witnessed instances of fraud and abuse firsthand may be tempted to gloat, but this is clearly the wrong response!

It is important to remember that the government and the whistleblowers may be wrong.  There is a tendency to think that the government must be right, but providers who reflect on their own experiences dealing with regulators will immediately recognize that this is not necessarily the case.

Providers also need to recognize the effect that this action undoubtedly has on AseraCare.  Providers can be sure that many resources, both human and financial, have already been expended on this case.  This case will continue to require utilization of huge amounts of time and money.  The legal fees alone are likely to amount to millions of dollars.

Providers should also consider the toll this case is taking on the management and staff at AseraCare.  Whether right or wrong, staff members are almost surely suffering.  They may be second-guessing themselves in a number of ways.  They may be thinking about leaving the hospice industry and perhaps healthcare altogether.  They are probably losing sleep and in emotional turmoil.  In short, we should not wish this trouble on our worst enemies.

Lawsuits like these undoubtedly hurt other providers throughout the industry.  Allegations that the industry is a fraudulent may be thrown in the faces of other agencies.  Regulators may use allegations of fraud and abuse in the industry as an excuse to lower reimbursement rates and to take other adverse regulatory action against all providers.

The most distressing effect of all is that allegations of fraud and abuse hurt patients.  The resources used to fight such allegations could be used to help patients.  Adverse regulatory action and reduced reimbursement can also hurt patients quite directly.  The depletion of staff members’ emotional and spiritual resources means that they have fewer of these resources to share with patients.   Also, any monies paid to the government to resolve such allegations may adversely affect patient care.

Fraud and abuse hurts us all, including patients, a result that is simply unacceptable.

©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.

Why Do Post-Acute Providers Need Access Prior to Discharge?

By: Elizabeth E. Hogue, Esq.

Many post-acute providers; including home health agencies, private duty agencies, hospices, and home medical equipment (HME) companies, place a high value on use of coordinators/liaisons who regularly visit patient floors at hospitals and other inpatient facilities.  Some discharge planners/case managers do not understand why such access is needed, especially in view of the availability of various methods of communicating information to post-acute providers.  In fact, discharge planners/case managers may view the presence of post-acute providers as nothing more than a nuisance.  There are, however, several reasons why the use of liaisons/coordinators from post-acute providers in institutional settings is important.

First, visits by liaisons/coordinators to patient floors are important for the provision of quality of care for patients.  It seems increasingly clear that patients are at greater risk during transitions in care.  Such transitions include shift changes in inpatient settings as well as movement from one level of care to another.  Care transitions during which patients may be at increased risk also include transitions from inpatient care to post-acute care.  According to Standards of Practice for Case Management published by the Case Management Society of America (CMSA) in 1995 and revised in 2002 and 2010, case managers/discharge planners have a duty to assist clients in the “safe transitioning of care to the next most appropriate level.”

While discharge planners/case managers may feel that they communicate all necessary information to post-acute providers, it seems likely that the more communication there is prior to discharge, the more likely it is that the transition will go smoothly.  In order to help ensure a safe transition, coordinators/liaisons may be present on patient floors in order to talk directly with patients, to obtain more information from discharge planners/case managers, and to meet with families, especially primary caregivers, to help ensure that they understand their role in the provision of home care and hospice services.  Consequently, the activities of coordinators/liaisons on patient floors may help to provide optimum transitions to patients from hospital or facility to home, and may help to manage the risks of both hospitals and facilities and post-acute providers.

It is also appropriate for liaisons/coordinators to be on site to visit patients with whom the post-acute provider has an ongoing relationship to help ensure continuity and quality of care.  Home health patients whose episodes of care paid for by the Medicare Program do not end while patients are in the hospital or facility are still admitted to home health agencies and are still patients of the agencies.  Hospice patients remain admitted for hospice care even though they are hospitalized.  HME suppliers may maintain equipment in patients’ homes throughout their hospitalizations.  Coordinators/liaisons can best stay in touch with patients of their organization and their families by visiting them in inpatient facilities.  Post-acute providers need to have current knowledge about the clinical condition of patients, the availability of primary caregivers, the need for additional equipment and supplies, etc. in order to be able to continue to provide appropriate care upon discharge.  Providers are legally prohibited from rendering services to patients whose needs they cannot realistically meet.

Coordinators/liaisons may also need to be on patient floors because they receive referrals that do not come from anyone at the hospital.  Referrals may come from a variety of sources and may be received either verbally or in writing.  Examples of referral sources include, but are not necessarily limited to: discharge planners, hospital and facility staff members, physicians, patients, and patients’ friends and family members.  It is unnecessary for referrals to be received by the Agency in the form of orders from physicians or other practitioners.  Post-acute providers may, for example, receive referrals from family members who seek services for patients.  So coordinators/liaisons may need to be on patient floors in response to specific requests from family members to begin the process of coordination of post-acute services.

Based upon the above, liaisons/coordinators have legitimate needs to be on patient floors in inpatient settings.  While solicitation of patients is impermissible, violations of this prohibition by some post-acute providers should not interfere with the ability of post-acute providers to meet the legitimate needs described above.

© 2011 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.

Fraud and Abuse Compliance: A “Wake-Up Call” for Private Duty Providers

By: Elizabeth E. Hogue, Esq.


Agencies that provide private duty services only and Medicare-certified home health agencies that also provide private duty services may have erroneously concluded that the fraud and abuse prohibitions that apply to Medicare-certified agencies do not apply to private duty providers. Recent action against Maxim Healthcare makes it clear that this is not the case.  Maxim is a privately held company with 360 offices nationwide and approximately 88,000 staff members. While some of these locations are Medicare-certified, Maxim provides services primarily to Medicaid, including Medicaid waiver, patients. 

As a result of both criminal and civil investigations, Maxim has agreed to pay $150 million to the federal government and state Medicaid Programs to settle allegations of false claims.  Payments to the federal government include false claims made to the Veterans Administration.  In addition, nine employees of Maxim have already pled guilty to criminal charges; including three regional accounts managers, a Director of Clinical Services, a home health aide, an account manager, a recruiter, and a licensed practical nurse.  Action may yet be taken against other individual employees, including members of the upper management team.

Based on this case alone, it is clear that providers of private duty services are subject to the same fraud and abuse prohibitions as Medicare-certified agencies and must take action to help ensure compliance.  What kind of action should be taken by providers of private duty services? 

The statements of officials about the Maxim settlement offer clear direction.  New Jersey Attorney General Paula Dow, for example, said: “Companies like Maxim, that provide health care services to Medicaid patients, are expected to take necessary steps to prevent fraud and abuse by instituting strong compliance programs and maintaining effective internal controls.”

How do compliance programs, including effective internal control, help providers avoid enforcement action?  First, as a practical matter, when providers establish and maintain a Compliance Program, it clearly discourages regulators from pursuing allegations of fraud and abuse violations.  Technically speaking, the Federal Sentencing Guidelines make it clear that establishment and implementation of Compliance Programs is considered to be a mitigating factor.  That is, if accusations of criminal conduct are made, as they were in the Maxim case, the consequences may be substantially less severe as a result of a properly implemented Compliance Plan.

Providers with Compliance Plans are more likely to avoid fraud and abuse.  This is because Plans routinely establish an obligation on the part of each employee to prevent fraud and abuse and the Plans include training for all employees.  Compliance Plans make it clear that employees have an obligation to bring any potential fraud and abuse issues to the attention of their employers first.

Compliance Plans may help to prevent qui tam, or so-called “whistleblower” lawsuits by private individuals, rather than by government enforcers, who believe that they have identified instances of fraud and abuse.  There are significant incentives to bring these legal actions since “whistleblowers” receive a share of monies recovered as a result of their efforts.  Some whistleblowers have received millions of dollars.  The whistleblower in the Maxim case will receive over $15 million.

Finally, the Deficit Reduction Act (DRA) requires providers who receive more than $5 million in monies from the Medicaid Programs per year to implement policies and procedures, provide education to employees, and put information in their employee handbooks about fraud and abuse compliance.  These requirements can be met through implementation of a Fraud and Abuse Compliance Program.

In view of the above, all providers of private duty services should implement and maintain effective compliance plans.

In addition, as part of an agreement to defer prosecution, Maxim admitted in documents filed in court that “certain aspects of Maxim’s operations emphasized sales goals at the expense of clinical and compliance responsibilities, as reflected in certain aspects of its culture, training, incentive compensation and allocation of personnel resources.”  Based upon Maxim’s statement, providers of private duty services should review incentives in compensation to staff and should work to ensure that there are checks and balances on incentives that may encourage staff to engage in fraudulent conduct.  These measures should be built into agencies’ compliance plans.

It is quite clear that providers of private duty services must meet requirements regarding fraud and abuse compliance.  If they fail to do so, both criminal and civil enforcement action may be taken against them.

© 2011 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.

New OIG Advisory Opinion on Provision of Items and Services Below Cost or Free of Charge to Referral Sources in Exchange for Referrals

By: Elizabeth E. Hogue, Esq.

In an Advisory Opinion posted on August 4, 2011, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services concluded that the provision of items and services below cost or free of charge to referral sources likely violates the federal anti-kickback statute.  A home medical equipment (HME) company requested the Advisory Opinion. 

The HME supplier provides medical supplies and equipment to skilled nursing facilities (SNF’s).  When the medical supplies and equipment that the HME company furnishes to SNF’s are covered by Medicare Part B, the HME company bills the Medicare Program for them.  When they are not covered under Medicare Part B, the HME supplier bills the SNF for the supplies.  The HME supplier usually charges SNF’s amounts in excess of the cost of the non-covered supplies in order to cover the cost of related services; such as inventory control, visits by customer service representatives, customized patient-specific packaging, etc.; plus overhead and profit.

In this case, SNF’s requested proposals for exclusive suppliers of items covered by the Medicare Program.  Bidders were also required to submit pricing for items not covered by the Medicare Program that SNF’s may purchase at their option.  The HME supplier wanted to submit bids offering pricing for the non-covered items and related services that were below the HME supplier’s costs.  The HME company acknowledged that the payments it would receive from Medicare Part B as SNF’s exclusive suppliers for covered items would more than offset any losses it would incur to furnish the non-covered items and related services below its costs.

In response to the suppliers’ request, the OIG first stated that the anti-kickback statute is implicated if any direct or indirect link exists between a price offered by a supplier or provider to referral sources for items or services that referral sources pay for and referrals of Federal business for which the supplier or providers can bill a Federal health care program.  According to the OIG, both referral sources and providers that receive referrals have obvious motives to trade below-cost payment rates for or free items and services for referrals of patients whose care will be paid for by the Medicare Program.

The OIG then pointed out that providers may be “swapping” the below-cost rates on certain types of business in exchange for other profitable Federal business from which providers can recoup losses incurred on the below-cost business.  The OIG stated that providers likely engage in such practices with the intent of inducing referrals of more lucrative business paid for by the Medicare Program.

It is worth considering this Advisory Opinion in light of the practices of some hospital discharge planners/case managers.  They may require post-acute providers to give services and/or supplies to patients for whom there is no payor source or payor sources that do not reimburse at rates that cover providers’ costs in order to receive referrals of patients whose care will be paid by the Medicare Program.  If post-acute providers are unwilling to render services free of charge, hospitals may bear the risk of continued care of such patients.  This type of “swapping” may also be prohibited by the OIG based upon the Advisory Opinion described above.

© 2011 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.

Marketing Representatives of Post-Acute Providers Must Receive Training Regarding Appropriate Activities

By  Elizabeth E. Hogue, Esq.
 
The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, recently announced that “patient recruiters,” or marketing representatives, had been convicted of fraud and were on their way to jail.  On July 12, 2011, for example, the OIG announced that a marketing representative in the Detroit area was sentenced to twenty-seven months of jail time and required to pay restitution in the whopping amount of $10,765,325.  In another case announced on July 21, 2011, a marketing representative pleaded guilty to Medicare fraud and is awaiting sentencing. 

These two recent cases bring home once again the importance of making sure that marketing representatives of home health agencies, hospices, HME companies, and private duty companies understand what is legal and what is not with regard to getting referrals.

The stakes are extremely high.  Court decisions and a federal statute make it clear that billing for referrals that were obtained in impermissible ways are false claims.  That is, if marketing representatives use inappropriate means to get referrals and post-acute providers bill for services provided to such patients, then the claims submitted are false claims.  The penalties for submissions of false claims may include:

•  Fines or civil money penalties that are three times the amount of the claims involved;         
• Jail time; and
• Suspension or exclusion from participation in the Medicare, Medicaid, and other state and federal health care programs. 

What if owners did not know what the marketing representatives were doing?  Providers need to know that court decisions say that enforcers may conclude that providers had intent if they can prove that providers knew or should have known of a pattern of fraudulent conduct.  This means that managers of post-acute providers must remain vigilant and constantly monitor the activities of marketing representatives to be sure that they don’t cross the line.

 From a practical point of view, providers should take the following actions:

• Develop and implement a policy and procedure that says that marketing representatives may not engage in new types of marketing activities without the advance written permission of appropriate managers.
• Provide initial and periodic training to marketing representatives regarding regulation of marketing  practices, including, at a minimum:
• The Federal anti-kickback statutes;
• The Federal False Claims Act;
• The so-called “Stark laws” and regulations; and   
• Any applicable state statutes.

There are few checks on marketing representatives’ activities, especially when, as a result of their efforts, they receive incentives based on the number of admitted patients referred.  Management is responsible for the oversight of these activities.  The possible consequences described above make the necessity of vigilance quite clear.

(To obtain an 80-minute video that can be used to train marketing representatives, please send a check made out to Elizabeth E. Hogue in the amount of $105.00 that includes shipping and handling to: Fulfillment, 107 Guilford, Summerville, SC 29483.)

© 2011 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.

Part II – Accountable Care Organizations (ACO’s): The Role of Post-Acute Provider

By Elizabeth E. Hogue, Esq.

Section 302 of the Affordable Care Act (ACA) includes provisions related to Medicare payments to providers of services and suppliers that participate in Accountable Care Organizations (ACO’s).  Providers of services and suppliers who participate in ACO’s will continue to receive payments under Parts A and B of the Medicare Program, but will also be eligible for additional payments if they meet certain requirements related to quality of care and cost savings.  The Secretary of the U.S. Department of Health and Human Services is required to establish ACO’s no later then January 1, 2012.

Proposed regulations to implement these provisions were published in the Federal Register on April 7, 2011.  Comments regarding the proposed regulations must be received by the Centers for Medicare and Medicaid Services (CMS) no later than sixty days after the date of publication. This is the second in a series of articles about ACO’s.  The purpose of this article is to address the issue of the role of post-acute providers in ACO’s. As indicated above, ACO’s will share in cost savings if they meet performance standards for both quality of care and cost savings.  Post-acute providers may assist ACO’s to meet standards related to quality of care.

The Centers for Medicare and Medicaid Services (CMS) proposes to establish five “domains” related to quality of care.  These domains are:

1. Better care for individuals, including patient/caregiver experiences, care coordination and patient safety.
2. Better health for populations, including preventive health and at-risk population/frail elderly health.

Post-acute providers have specialized expertise with regard to care coordination, patient safety and at risk populations/frail elderly health. Specifically, there are sixty-five proposed measures for use in establishing quality performance standard that ACO’s must meet in order to share in savings.  Post acute providers may be especially helpful to ACO’s regarding the following performance measures:

Care Coordination/Transitions 
The rate of readmissions within 30 days of discharge from acute care hospitals for assigned or aligned ACO beneficiary populations. Post-discharge visits to physicians within 30 days. 

Ambulatory Sensitive Conditions Admissions: Diabetes, Short-term Complications (AHRQ Prevention Quality Indicator #1).  All discharges of age 18 years and older with ICD-9-CM principal diagnosis code for short-term complications (ketoacidosis, hyper- osmolarity, coma) per 100,000 population.

Ambulatory Sensitive Conditions: Congestive Heart Failure (AHRQ Prevention Quality Indicator #8).  All discharges of age 18 years and older with ICD-9-CM principal diagnosis code for CHF, per 100,000 population. Ambulatory Sensitive Conditions Admissions: Urinary Infections (AHRQ Prevention Quality Indicator #12). 

All discharges of age 18 years and older with ICD-9CM principal diagnosis code of urinary trace infection, per 100,000 population.

Preventive Health
Influenza Immunization: Percentage of patients aged 50 years and older who received an influenza immunization during the flu season (September through February).

At Risk Population/Frail Elderly Health
Falls: Screening for All Risk: Percentage of patients aged 65 years and older who were screened for fall risk at least once within 12 months. Monthly INR for Beneficiaries on Warfarin: Average percentage of monthly intervals in which Part D beneficiaries with claims for warfarin do not receive an INR test during the measurement period. 

Post-acute providers can certainly assist participants in ACO’s to meet the performance measures described above.  The crucial role of post-acute providers in meeting the above goals should be recognized and acknowledged by other types of providers.

Elizabeth E. Hogue is an attorney in private practice with extensive experience in health care.  Her clients are professional associations, physicians, managed care providers, and institutional health care providers, which includes hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.  © 2011 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.

Recent OIG Advisory May Also Apply to Vendor Fees

By Elizabeth E. Hogue, Esq.

On May 20, 2011, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, posted Advisory Opinion 11-06.  This Opinion makes it clear that post-acute providers that pay hospitals to participate in e-discharge planning systems likely violate the federal anti-kickback statute.  Hospitals utilizing such systems that require post-acute providers to “pay to play” also likely violate the federal anti-kickback statute.

Specifically, the OIG considered use of e-discharge planning systems by hospitals that are often encountered by post-acute providers.  In many instances, post acute providers are required to pay fees in order to receive referrals electronically through systems implemented by hospitals.  Providers who do not pay required fees receive notice of possible referrals via fax.  Consequently, post-acute providers who elect not to pay to participate in electronic discharge planning systems are significantly disadvantaged and may be effectively eliminated from any chance of receiving referrals because they are unable to communicate in a timely manner with hospital discharge planners regarding referrals.

Based upon the above, the OIG concluded that such arrangements likely violate the federal anti-kickback statute.  The OIG said that companies that provide e-discharge systems to hospitals would be soliciting and accepting, and post-acute providers would be paying remuneration in return for the arranging for the furnishing of post-acute care services by e-discharge planning companies of post-acute services for which payments would be made by federal health care programs.  The OIG went on to say that such arrangements do not qualify for protection under applicable safe harbors, including the safe harbor for referral services.  In addition, post-acute providers continue to be plagued by hospitals that claim that post-acute providers cannot enter hospitals and/or gain access to patients to coordinate post-acute services because they are “vendors.”   Hospitals may permit access by post-acute providers only if they comply with complex, inapplicable restrictions.  Still other hospitals require post-acute providers to pay fees in order to gain access to patients for the purpose of coordinating post-acute services.

On the contrary, post-acute providers; such as home health agencies, home medical equipment (HME) companies, hospices, and private duty home care agencies; are not vendors and should not be treated like vendors. They are, instead, fellow providers. Vendors are manufacturers and distributors of supplies and equipment that are utilized by hospitals on their premises.

Does the OIG Advisory Opinion described above also apply to vendor fees?

First, since post-acute providers are not vendors, the payments of fees to hospitals directly or to hospitals’ contractors who implement vendor checks may constitute impermissible kickbacks. In addition, it appears that the OIG Advisory Opinion described above may indeed apply to vendor fees.  The OIG’s main point is that post-acute providers cannot be required to pay fees in order to receive referrals, i.e. “pay to play.”  If providers who pay vendor fees received referrals, but providers who do not pay fees do not receive referrals or receive fewer referrals, such practices seem to be prohibited by the OIG.

While post-acute providers certainly understand that hospitals may want to “credential” their vendors, it is inappropriate to treat post-acute providers and vendors and require them to pay fees to qualify or be “credentialed.”  This practice seems to violate the OIG Advisory Opinion described above.

© 2011 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.

Post-Acute Providers That Pay to Participate in Discharge Planning Systems Likely Violate the Anti-Kickback Statute

By Elizabeth E. Hogue, Esq.
Office:  877-871-4062
Fax:  877-871-9739

On May 20, 2011, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, posted Advisory Opinion 11-06.  This Opinion makes it clear that post-acute providers that pay hospitals to participate in e-discharge planning systems likely violate the federal anti-kickback statute.  Hospitals utilizing such systems that require post-acute providers to “pay to play” also likely violate the federal anti-kickback statute.

Specifically, the OIG considered use of e-discharge planning systems by hospitals that are often encountered by post-acute providers.  In many instances, post acute providers are required to pay fees in order to receive referrals electronically through systems implemented by hospitals.  Providers who do not pay required fees receive notice of possible referrals via fax.  Consequently, post-acute providers who elect not to pay to participate in electronic discharge planning systems are significantly disadvantaged and may be effectively eliminated from any chance of receiving referrals because they are unable to communicate in a timely manner with hospital discharge planners regarding referrals.

Based upon the above, the OIG concluded that such arrangements likely violate the federal anti-kickback statute.  The OIG said that companies that provide e-discharge systems to hospitals would be soliciting and accepting, and post-acute providers would be paying remuneration in return for, the arranging for the furnishing of post-acute care services by e-discharge planning companies of post-acute services for which payments would be made by federal health care programs.

The OIG went on to say that such arrangements do not qualify for protection under applicable safe harbors, including the safe harbor for referral services. 

The OIG then considered whether such arrangements constitute minimal risk under the anti-kickback statute. 

First, the OIG noted that hospitals often discharge patients to post-acute providers on a first-come, first-served basis, which means that post-acute providers with the ability to electronically receive and respond to referral requests through e-discharge systems have a significant competitive advantage over non-payment providers.  In fact, according to the OIG, non-paying providers may effectively be eliminated from any chance of receiving patients when hospitals use e-discharge systems.  Providers that pay fees to companies that provide e-discharge systems would, therefore, be more likely to get patients because they paid for the opportunity; not because they provide superior care.

The OIG also emphasized that the costs incurred to fax referrals to post-acute providers that elect not to pay fees to participate in e-discharge planning systems would exceed the costs to transmit referrals electronically.  Hospitals that fax referrals to non-paying post-acute providers provide paying providers with a competitive advantage in obtaining referrals or, conversely, penalize providers that do not pay.

Finally, the OIG acknowledged that some post-acute providers cannot afford to pay to participate in e-discharge systems in order to remain competitive.  Such providers, therefore, risk substantial loss of business.  Providers that pay to participate in e-discharge systems probably face pressure to recoup the costs associated with participation.  These pressures could create incentives to, among other things, prolong patient stays; provide separately billable, unnecessary services; or upcode.  All of these activities could result in increased costs to federal health care programs. 

For all of the above reasons, the OIG said that the use of e-discharge planning systems by hospitals that require post-acute providers to pay to participate are not protected from enforcement action under the federal anti-kickback statute.  Hospitals and post-acute providers are now clearly on notice regarding continued use and participation in such systems.  Hospitals may, of course, continue to use e-discharge systems so long as post-acute providers participate without paying to do so.  Post-acute providers currently participating in e-discharge planning systems for which they have paid or are paying fees to participate should discontinue payments immediately. 

© 2011 Elizabeth E. Hogue, Esq.  All rights reserved. 

The Old Adage: If It Is Not Documented, It Was Not Done

By Elizabeth E. Hogue, Esq.

The old adage, “If it is not documented, it was not done;” is unfortunately often true.  The consequences of failure to document may be severe in terms of allegations of fraud and abuse.  The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services has repeatedly stated that providers carry the burden of proving that care was actually rendered to patients.  If practitioners are unable to prove that they rendered appropriate care because it is not documented, the OIG and other fraud enforcers may conclude that claims submitted by these providers are false claims. 

The consequences for submission of false claims are potentially severe.  The amount of the false claims may, for example, be tripled and providers may be required to pay this amount.  Millions of dollars and sometimes the ability of providers to continue their businesses may be at stake.

Consequences of submission of false claims also include suspension or exclusion from participation in the Medicare and Medicaid Programs, including Medicaid waiver programs, and other federal and state health programs such as Tri-Care.  Few providers can survive the loss of all reimbursements from both federal and state healthcare programs.

Providers also risk liability for negligence or malpractice when they fail to document  care provided.  Risks are greatly enhanced when providers make recommendations to patients that they reject, and neither the recommendation nor refusal are documented.  A recent case, Amos v. Louisiana Med. Mut. Ins. Co., No. 41, 302-CA (La. Ct. App. August 4, 2006) illustrates this point.

In this case, Dr. Rebecca L. Crouch treated Mr. Joseph Lee Amos for bleeding after bowel movements.  Mr. Amos eventually sought a second opinion from a different doctor.  The second physician Amos saw disagnosed colorectal cancer.

Amos sued Dr. Crouch and her professional liability insurer, Louisiana Medical Mutual Insurance Company.  He claimed that Crouch breached applicable standards of care when she failed to recommend and conduct diagnostic testing indicated by Amos’ symptoms.  Amos claimed that Crouch’s breach of standards of reasonable care caused a delay in diagnosis and treatment of his cancer.

In response, Crouch argued that she had, indeed, recommended to Amos that he undergo appropriate tests, but that he refused to allow such testing.   Crouch, however, had not documented the recommendation or Amos’ refusal.  Crouch testified that she remembered the conversation with Amos in which she recommended tests that he refused.

The Court concluded that the “absence in Mr. Amos’ medical records of any notations indicating that Dr. Crouch recommended he undergo either a proctoscopy or colonoscopy is circumstantial evidence from which the trier of fact could reasonably conclude that Dr. Crouch never made any such recommendations.”  In other words, because it was not documented, it is reasonable to conclude that it was never done.

If allegations of fraud in the form of false claims had also been made against Dr. Crouch because the care she provided to Amos was substandard, it is likely that the allegations against her would have been substantiated.

A word to the wise should be sufficient: Documentation is crucial to avoid fraud and abuse and to manage risks.


Contact Elizabeth Hogue
Office:  877-871-4062
Fax:  877-871-9739
E-mail: ElizabethHogue@ElizabethHogue.net

© 2011 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.

Patients' Right to Choose Providers

By Elizabeth E. Hogue, Esq.

The right of patients to choose providers who will render care to them is currently based upon three key sources:
 

• Court decisions that establish the right of all patients, regardless of payor source and the setting in which services are rendered, to control treatment, including who provides it.
• Federal statutes for both the Medicare and Medicaid Programs that establish the right of patients whose care is paid for by these programs to choose providers who render care in the absence of a waiver.
• The Balanced Budget Act of 1997 (BBA), which currently requires hospitals only to provide a list of home health agencies to patients.  According to the BBA, the list must meet the following criteria:

1. Agencies that provide services in the geographic area in which patients reside, are Medicare-certified, and request to be included must appear on the list given to patients.
2.  If hospitals have a financial interest in any agency that appears on the list, this interest must be disclosed on the list.

    * Conditions of Participation (COP’s) of the Medicare Program that are the same as the provisions of the BBA described above.

Despite the existence of these requirements that are intended to protect the right of patients to choose providers, there is a lingering perception, however unfair it may be, that hospitals give “lip service” to patients’ right to freedom of choice, but still operate based upon a culture that emphasizes ownership of patients and the need, and perhaps even the right, to go to great lengths to keep patients “within the system.”  Case managers/discharge planners are likely to see more enforcement actions by state survey agencies with regard to the rights of patients to choose their providers.

Action taken by a provider in Indiana is instructive.  Specifically, the provider documented instances of alleged violations and reported them to the state survey agency.  Surveyors treated the reports like a complaint and conducted a complaint survey of the hospital's practices.  Surveyors concluded that the hospital violated its own policies and procedures and the provisions of the Balanced Budget Act in the process of making referrals for home health services.  The hospital received a statement of deficiencies and was required to submit and follow a plan of correction (POC).

This action opens the door for clear enforcement action against hospitals and other providers who violate patients' right to freedom of choice.  If violations are at the condition level of deficiencies, providers could, at least in theory, lose their right to participate in the Medicare/Medicaid Programs.

The right of patients to choose providers has generated considerable conflict within the provider community.  This right is likely to be tested and reinforced.  Case managers/discharge planners need a thorough understanding of the issues in order to stay out of the fray.
 
(To obtain more information about the fraud issues discussed above in a book entitled Medicare/Medicaid Fraud and Abuse: A Practical Guide for Providers, send a check to Elizabeth Hogue for $30.00 including shipping and handling to: Fulfillment, 107 Guilford,Summerville, SC  29483.) 

©2011
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.

Face-to-Face Encounters by Medical Directors

Learn more about the new face-to-face requirements that are going into effect on April 1, 2011 in an article written by Daymarck thought leader Elizabeth Hogue, a private practice attorney with extensive experience in healthcare law and policy.

Effective April 1, 2011, providers may not be paid for services rendered if patients have not had appropriate face-to-face encounters with physicians during required time periods. In order for home health agencies and hospices to be paid for services provided, documentation of these encounters must also meet applicable requirements. Many staff members of agencies and hospices have read communications from CMS, fiscal intermediaries, and other sources that seem to state that Medical Directors cannot provide face-to-face encounters and documentation of them in order to meet applicable requirements. This conclusion is stress-provoking for staff members because Medical Directors often refer a number of patients to them. If it is true that Medical Directors cannot complete face-to-face encounters and documentation of them, the new requirements are more likely to be problematic to implement.

On the contrary, Medical Directors and other referring physicians who receive payments from providers for their services may complete face-to-face encounters and documentation so long as the requirements of both the personal services and management contract safe harbor and the contractual exception are met, as described below.

It is important to note that the above requirements do not apply only to so-called “Medical Directors.” This requirement applies whether referring physicians who provide paid consulting services are called “Medical Directors,” “Medical Advisors,” “consulting physicians” or another title. In other words, the prohibition applies to all physicians who make referrals and are paid for services, regardless of their title.

For more information, download a PDF of the entire article.

©2011

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.

Part I: Preparing for Audits - ZPIC Audits

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

The Centers for Medicare and Medicaid Services (CMS) are now conducting ZPIC audits. ZPIC’s are conducted by Zone Program Integrity Contractors. Unlike RAC audits that target identification of overpayment and CERT audits that attempt to pinpoint improper payments, ZPIC audits focus on fraud in the Medicare Program. This means that ZPIC contractors can audit the integrity of all Medicare claims, both pre- and post-payment.

CMS has established seven ZPIC zones. Contracts have been awarded in three zones thus far, as follows:

 Zone 5 – AdvanceMed: Alabama, Arkansas, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia
 Zone 7 – SafeGuard Services: Florida, Puerto Rico, and the Virgin Islands
 Zone 4 – Health Integrity: Texas, Colorado, New Mexico, and Oklahoma

ZPIC contractors are currently especially active in Zone 4.