Home Care, Hospice Community Urged to Ramp Up Grassroots Campaign

Participate in Action To Protect Home Care and Hospice!

The summer recess for the House of Representatives and Senate runs through September 7. When Congress returns it will seek to follow up on the recent debt limit legislation (NAHC Report Aug. 3, 2011) with further efforts to reduce the deficit as well as offsetting the cost of fixing the flawed Medicare physician payment formula.

Since the Deficit Commission, the Medicare Payment Advisory Commission, and the Congressional Budget Office have suggested home health and hospice payment cuts and copays for deficit reduction and/or offsetting the cost of the physician payment fix, the home care and hospice community will have to ramp up its efforts during the recess and beyond to protect the home health and hospice benefits from payment cuts and copays.

Home care and hospice advocates may also wish to raise other important issues over the recess, such as:

• preserving federal funding for Medicaid; providing a fairer, more transparent process for evaluating case mix changes (The Home Health Care Access Protection Act (S.659)); 
• reforming the home health face-to-face physician encounter requirement; allowing nurse practitioners and physician assistants to sign home health plans of care (The Home Health Care Planning Improvement Act (H.R.2267; S.227));
• providing incentives for tele-homecare (The Fostering Independence through Technology Act (S.501));
• reforming the hospice face-to-face requirement and establishing hospice payment demonstration program (Hospice Evaluation and Legitimate Payment Act (S.722)); and 
• preserving the companionship services exemption from overtime under the Fair Labor Standards Act.

Sample letters and talking points for all these issues will be on the NAHC Legislative Action Network website.

During the recess, NAHC is urging its members and their friends, family, and co-workers to speak out as loudly and forcefully as possible. This is also a good time to thank those members of Congress who have taken a stand against home health and hospice payment cuts and copays. To help accomplish this, NAHC is embarking on a series of action alerts in NAHC Report during the congressional recess. We will focus on a different way you can make your voice heard.

Following are suggested grassroots action steps we plan to cover in more detail in upcoming issues of NAHC Report:

• Attend a town hall meeting held by your members of Congress. 
• Schedule face-to-face meetings with your members of Congress. 
• Invite a member of Congress out on a home care visit -- get the media to come along if possible.
• Attend a candidate fundraiser for a member of Congress and speak with him or her personally. 
• Submit a letter to the editor or op-ed piece to the local newspaper. 
• Call in to a talk radio station and initiate dialogue on home care and hospice. 
• Use online social networks such as Twitter and Facebook to discuss home care and hospice concerns.
• Contact your state's governor and ask for support for home care and hospice. 
• Send a message to all employees of your organization asking them to get involved and to write messages to members of Congress through the NAHC Legislative Action Network (NAHC LAN).
• Send a message to all board members of your home health agency or hospice asking them to get involved and to write messages to members of Congress through the NAHC LAN. 
• Send a message to your past and current patients explaining the threatened cuts to home care and hospice and ask that they contact Congress through the NAHC LAN. 
• Send a message to physicians who care for your patients asking them to get involved and to write messages to members of Congress through the NAHC LAN. 
• Contact community groups such as local AARP chapters, senior citizen centers, and disease support groups explaining threatened home care and hospice cuts and copays and ask that they send messages to Congress for support of home care and hospice through the NAHC LAN. 
• Contact religious groups explaining threatened home care and hospice cuts and ask that they send messages to Congress through the NAHC LAN. 
• Contact health care officials such as hospital administrators and explain threatened home care and hospice cuts and copays, asking them to send a message to Congress through the NAHC LAN.
• Spread the word on using the NAHC LAN to help fight home care and hospice cuts and copays through a message to your email contacts urging them to send to at least 10 more individuals.
• Invite your representative to join the House Home Health Caucus. 

WHAT TO DO TODAY
For today's suggested grassroots action step:

1. Plan to attend a congressional town hall meeting.
2. Go to your Congress member’s website to see if his/her recess schedule is published. If a schedule isn’t published on the website, call his or her local office and inquire as to when the lawmaker(s) will be making public appearances. Review NAHC's talking points/issue briefs on the NAHC Legislative Action Network. Bring as many home care advocates with you as you can get. 
3. Speak out at a town hall meeting about the importance of preserving access to home care and hospice and urge your representative and senators to oppose home care and hospice cuts and copays.

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.

Daymarck Update: August 2011

By Daymarck CEO Nick Dobrzelecki

It has been a busy and exciting last few months for Daymarck. In July, we were proud to be Gold Sponsors at the17th Annual NAHC Financial Management Conference in San Diego, CA. During the three days there, including the Daymarck-sponsored opening reception, we met hundreds of financial executives in the home care industry and shared the Daymarck story.

Trade shows are a great opportunity for us to meet face-to-face with decision makers in the industry from big and small agencies, staff folks who do the front-line work, and other service providers. We heard about the uncertainty many organizations feel about the transition to ICD-10 in 2013 and the concerns about Congressional action against the home health industry. However, the feeling at the conference was not one of doom and gloom – but one of opportunity.

One of the many things that I enjoy about the NAHC Financial Management Conference is the level of engagement and passion attendees have about home health care. It is more than a job. Together, we can make a difference in the quality of life for all Americans.

As we enter August, we are planning our presence at NAHC’s 30th Annual Meeting & Exposition, Oct. 1-5, 2011, in Las Vegas, NV. The theme for this year is “Leading the Last Great Civil Rights Battle: Maximizing Opportunity, Minimizing Risk.”  We hope to see you there.

In the midst of event planning and strategic thinking, we are, of course, focused on what we do best – making home care coding as pain-free as possible. Enjoy the rest of your summer!

VP of Marketing George Rafeedie, NAHC Chair Andrea Devoti, and Daymarck CEO Nick Dobrzelecki.

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.

Call Congress: Home Health Care Cuts

Congress is about to cut billions of dollars in funding for Medicare home health care services. Home health cuts and co-payments will have a devastating impact on millions of Americans, including some of the poorest and sickest Medicare beneficiaries. Such changes may also cause many patients to leave their homes and instead seek treatment in costly hospitals and nursing homes.

A Home Health Copayment:

• Would Disproportionately Impact Poor and Sick Seniors
• Would Shift Seniors to More Costly Settings
• Would Increase Medicare and Medicaid Costs
• Was Repealed by Congress in 1972 and Remains Unpopular Today 

Please Protect Seniors from a Home Health Copayment. Join the Partnership for Quality Home Healthcare and contact your U.S. Representative today.

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.

Survey Results: Home Health Face-to-Face Requirements

By Nick Dobrzelecki RN, BSN
Daymarck CEO

Since the start of Medicare’s home health face-to-face (F2F) requirement on April 1, 2011, agencies have encountered significant resistance from physicians in accurately and completely filling out the F2F documentation. The F2F encounter requirement must occur 90 days prior to the admission or 30 days after the admission. The documentation cannot be completed by any employee of the home health agency. The F2F documentation can be placed on the certification form or is an addendum to it but it must be separate and distinct. It must also include the following:

1. The patient's name;
2. Date of the encounter;
3. How the patient's clinical condition as seen during the encounter supports homebound status and the need for skilled services;
4. The physician's signature (original signature, a faxed copy, copy of original document with signature or electronic signature - but not stamped signature); and
5. Date of the physician's signature.

Agencies have been trying to educate and provide providers with as much help as is possible within the law. However, the regulation is very specific and constrains home health agencies from doing any of the work for the providers. Agencies can create forms but they cannot use check boxes or drop down boxes in electronic records. If the provider creates their own form, they can use these features although this is not clear as CMS continues to change their responses this issue. Issues such as stamp signatures continue to be an issue for some agencies (page 2, http://www.cms.gov/MLNMattersArticles/downloads/MM6698.pdf).

The National Association of Home Care and Hospice (NAHC) contracted Fabrizio, Ward & Associates to collect data from a survey conducted June 16-27, 2011 among physicians who prescribe home health care.  2,490 physicians from 49 states and DC responded to the survey (1,746 online, 744 by fax); the data has been weighted by region to reflect the actual distribution of the U.S. adult population.

Survey Results
View a PDF of the entire findings.

The vast majority of physicians surveyed disapprove of the new documentation/certification requirements for home health, saying it is a lot more burdensome and want it simplified. Most physicians surveyed believe fewer patients will be referred to home health as a result of the new rules, and that there will be significant negative health consequences to patients as a result. Most physicians surveyed favor reforms that would allow existing doctor orders to satisfy the certification requirements for home health, and do away with the written narrative. Half of physicians surveyed did not favor reforms that simplified the certification paperwork but still required a face-to-face visit.


Next Steps
Questions still linger who is going to monitor this requirement. It is not likely to be addressed by state survey agencies as F2F is not a Medicare condition of participation. It is a coverage and payment policy which may be monitored by a fiscal intermediary. With this issue not being answered, there are stories of agencies completing the documentation and then having the providers just sign off. This is in clear violation of the rules. When the rules allow hospital discharge planners to help complete the form for providers but home care liaisons cannot, the lines are clearly drawn. The only thing that can be done by the industry is to police its self. Violations can be reported to the HHS fraud hotline at http://oig.hhs.gov/fraud/report-fraud/index.asp.