AHLA Long Term Care and the Law – Homecare and Hospice Fraud

Deborah Randall, Esq.www.deborahrandallconsulting.comlaw@deborahrandallconsulting.com

Congress Acts through PPACA

• HHAs and hospices in a “moderate” category for Risk, requiring Social Security number checks, on-site visits

• New HHAs and DMEPOS are in “high” risk requiring criminal background checks and fingerprinting of owners, senior managers and Boards of Directors

• Publically traded HHAs now @ same categories of risk; reflecting SEC, OIG & Congressional investigations

• Maximum time to submit Medicare claims is not >12 mo from service

• Physicians must keep documentation on those referrals @ high risk of waste/abuse — specific mention of HHA and DME

• Face to face encounters[F2F] for both home health and hospice to ensure eligibility with Medicare standards for covered care

OIG Work Plan 2012

• States’ Survey and Certification of Home Health Agencies: Timeliness, Outcomes, Follow-up, and Medicare Oversight (New-N)

• Medicare’s Oversight of Home Health Agencies’ Patient Outcome and Assessment Data

• Missing or Incorrect Patient Outcome and Assessment Data - N

• Questionable Billing Characteristics of Home Health Services - N

OIG WorkPlan 2012

• Home Health Agency Claims’ Compliance With Coverage and Coding Requirements

• Medicare Administrative Contractors’ Oversight of Home Health Agency Claims-N

• Home Health Prospective Payment System Requirements for Coverage Documentation

• Services: Agency Claims Home Health [Eligibility; Staffing; Licensure]

• Personal Care and Medicaid HHA billing

OIG WorkPlan 2012 - Hospice

• Acute-Care Hospital Inpatient Transfers to Inpatient Hospice Care - N

• Hospice Marketing Practices and Financial Relationships with Nursing Facilities -N

• Medicare Hospice General Inpatient Care and whether Inpatient Facility billed drugs

• Hospice Services: Compliance With Medicaid Reimbursement Requirements

Homecare Fraud Cases

• Flat out corruption –Fake visits, fake orders• Kick-back referrals and Stark issues– Brokers;

corrupt physicians and discharge planners• Un-credentialed staff• Manipulated frail or elder consumer• Bonus programs without safeguards• False data on OASIS, records, responses to

ADRs

• United States v. Rahman, 11-CR-20540, ED MI, plea filed 1/5/12.

• Settlement and CIA, Maxim Healthcare, 9/11/11. [$150 million]

• United States v. Gabriel,IL indictment 6/29/11, alleging $20 million in home health fraud.

• United States v. Kirt, M.D. La., No. 3:10-cr-00079, sentenced 42 months; 10/13/11.

• United States v. Mussa, D. Minn., No. CR-11-266SRN, guilty plea entered 10/7/11. Medicaid Personal care homecare aides not provided.

• United States ex rel. Master v. LHC Group Inc., W.D. La., No. 07-1117, 9/29/11. Settlement; $65 milliion. Whistleblower from a regional consulting firm the provider had engaged.

• United States v. Nunez, S.D. Fla., No. 11-CR-20113, plea agreements 9/27/11. Fifteen of 21 defendants had plead; kickbacks to patients and referral sources.

Homecare Investigations

• Congressional Investigations--”Gaming” the system by Therapy Level Targeting, SR 112-24, S. Comm. on Finance

• Security and Exchange Investigations• On-going federal investigations; HEAT• State fraud investigations• Geographic focus

Hospice Fraud Cases

• Not terminally ill at admission [documentation concerns]

• Kept on census after plateau; failure to discharge long stay cases

• Admissions on steroids—the marketing cases• New: Too many hospice physicians?• OIG seeking nursing facility/hospice test case?

Hospice Cases

• United States v. Kolodesh, E.D. Pa., No. 11-CR-464, indictment unsealed 10/12/11. Allegations of kickbacks, ineligible patients, cost report irregularities, falsification of charts

Two New Cases Initiated

• US ex rel Landis v. Hospice Care of Kansas,US DCt. Kansas, Case No. 06-2455-CM. Motion to dismiss denied 12/7/2010.

• US ex rel Richardson and Brown v. Golden Gate Ancillary LLC dbaAseraCare Hospice, 09-CV-00627-AKK, N.D.Ala, filed [unsealed] 12/6/11.

Hospice Investigations

• Significant continuing issues• Geographic focus• Marketing

Counseling Clients: Fraud Concerns if Census Trumps Compliance

• setting aggressive census targets for staff• incentives and monetary bonuses for meeting the aggressive

census targets; • threatening staff with terminations/reductions in hours if census

fell below targets; • instructing staff to inaccurately document conditions of patients

to appear appropriate• procedures that delay/make discharge difficult• challenging or ignoring staff and physician’s recommendations to

discharge patients • disregarding or ignoring compliance concerns raised by an

outside consultant.

Marketing Risks: HHA and Hospice

• Relationships– Assisted Living Facilities– Bridge Programs from homecare setting– Nursing Homes– Alzheimer’s Units– Adult Day Centers– Home Health to Hospice and Hospice to Home

Health– Private Duty Agencies with Staff contracted over

• Office breakfasts and lunches to discuss the field of end of life, palliative and hospice care

• Same, as to home health services• What is “community education”; what is

“coordination of care” –as to physicians, nursing facilities, other referral sources

• What are specific educational requirements between hospice and nursing facilities

• CEUs = where and how they might be given, saving the costs to inpatient facilities/nurses

• Physician contracted relationships in hospice• Physician medical directors of nursing facilities

also working for home health or hospice –Physician gets full payment from the hospice versus only 80% from Medicare Part B and burdens and uncertainty of collecting co-pays from a patient

Hospice-specific Marketing

• Continuous care in hospice is marketed to patients, families and personal physicians– But coverage is only for infrequent periods of intensive

pain and care management– Continuous care must be precisely documented= ?

Falsifications risk• In-patient transfers from hospital to hospice in-patient unit –

rather than D/C to the home– In- patient coverage is for out-of-control pain– Hospitals avoid losses on DRGs+death statistics; gain a

payment from hospice as in-patient provider

Tee-ing Up New Fraud Cases

• HHS prefers physician seeing potential HHA patient to be the certifier of care – physician creating and signing—but has given “flexibility” for INPATIENT physician F2F

• <3 months prior, < 30 days after admission• No HHA employee may do the encounter OR

give information to the certifying physician – Attestation statement

• Certifications and signature of physician dated by the physician = no date stamping

F2F HHA Fraud Risks

• Telehealth permitted but regulation uses most narrow interpretation of PPACA

• So no home based telehealth patient. Can be in physician office, rural health clinic, rural mental health clinic, rural hospital outpatient, rural ESRD agency…..so no urban based patient can use telehealth for a F2F. Senator Thune has introduced a Bill to expand on the locations.

HHA Therapy Changes

• Reasonably attainable within a predictable or reasonable timeframe

• Using standardized patient assessments, outcome measurement tools, or

• Measurable assessments of functional outcome• Measurements done at beginning, during and

after treatment regime• Visits must require skilled level or Therapy is not

covered • Maintenance plan @ LAST VISIT

Hospice F2F

• Physician or NP sees the patient PRIOR to 3d Certification start date – if later, no billing for care in the “gap”; EXCEPTIONS

• Hospice must search up to 9 databases!• Attestation separately signed and dated• Only the hospice physician certifies – per diem

contracted physicians allowed but ? effect on quality of care, coordination

• No telehealth visit even though statute is silent on hospice and telehealth

Tee-ing Up Hospice Fraud Cases

• Quality in hospice not subject to uniform standards; quality in care, risk of “underserving”

• Hospice Wage Index Reg for 2011 proposes: “participation in QAPI programs that

address at least 3 indicators related to patient care reflects a commitment not only to

assessing the quality of care provided to patients but also to identifying opportunities for improvement that pertain to the care of patients.”

KickBack and Homecare

• Institutional relationships• Liaisons• Discharge Planners• The patients, themselves, can be the subject

of an “inducement”• There are no monetary thresholds for a

kickback but HHAs think they can use Stark dollar amounts as safeguard measures

QUESTIONS?

Deborah A. Randall, Esq.

law@deborahrandallconsulting.com

www.deborahrandallconsulting.com202-257-7073