Ahla long term care and the law homecare and hospice fraud
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AHLA Long Term Care and the Law – Homecare and Hospice Fraud. Deborah Randall, Esq. www.deborahrandallconsulting.com [email protected] Congress Acts through PPACA. HHAs and hospices in a “moderate” category for Risk, requiring Social Security number checks, on-site visits

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

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

Deborah Randall, Esq.

www.deborahrandallconsulting.com

[email protected]


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.

[email protected]

www.deborahrandallconsulting.com

202-257-7073


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