Post Acute Care Fraud Enforcement Actions
Indicate Risk Areas for Home Health and Hospice Providers
Home health agencies and hospices are seeing a rapidly accelerating level of scrutiny by federal and state regulatory agencies. Post acute providers need to take note of increased enforcement action and examine their level of readiness to undergo audit and review. These organizations need to brush off their compliance and audit programs and take steps necessary to avoid the disruption and financial exposure that inevitably occurs when the government discovers a problem.
Compliance programs should create a systematic process to identify areas of risk that are specific to the type of provider and the specific nature of their operations. A good place for providers to begin the risk identification process is to review OIG annual work plans, recent enforcement actions, newly enacted legislation and other external indications of areas of concern to regulators.
HHS officials have publicly stated that home health and hospices are areas of concern. Sources of increased scrutiny include state survey agencies, CMS program integrity review organizations, the Office of Inspector General, Department of Justice and a variety of other agencies. Regulators are widely using statistical analysis to identify potential outlier billings that may require further review. Some reviews arise when whistle-blowers such as employees or others bring qui tam actions or make complaints to government agencies.
There are several areas applicable to home health and hospice that are susceptible to review. Hospice reviews have tended to focus on whether patients actual meet criteria to be eligible to receive hospice benefits. The focus on hospice arises, at least in part, due to the expansion of this segment of health care industry and the relatively rapid increase in spending for hospice care. The government’s audit and enforcement trends indicate a deep suspicion that hospice are admitting patients who are not terminal or do not otherwise meet eligibility criteria. The government points to the relatively large number of hospice patients who are discharged from hospice care alive.
In order to qualify for hospice benefits, a Medicare patient must have an illness that is terminal. A physician must certify that the patient is terminal and is unlikely to live longer than six months if the illness runs its expected course. The patient must also waive their right to receive curative treatment for the terminal condition in order to qualify for benefits. Physician certification must be provided at two 90-day intervals following hospice admission. After the first 180 days of hospice care, the patient must be seen “face-to-face” by a nurse practitioner who determines continued eligibility for coverage. This process of certification and admission qualification creates several obvious pouts of risk for providers. The government seems to be keying in on a few of these points of risk as evidenced by recent enforcement actions.
Payments to physicians for administrative duties should be carefully scrutinized to assure that the compensation arrangement does not create a referral inducement. Medical director agreements must be analyzed under the Anti-Kickback Statute and applicable Stark Law exceptions. Compensation should be at fair market value, cannot take into account he volume or value of referrals, and must meet other regulatory requirements.
The OIG has repeatedly expressed suspicion about hospice relationships with nursing homes and admission of “marginal” hospice patients who reside in nursing homes. Hospices should routinely monitor their percentage of patients who reside in nursing homes and audit admission decisions relative to those patients. This is an area of frequent review and hospices should assure that each nursing home/hospice patient meets admission criteria.
OIG also expressed concern over hospice marketing materials that could lead to inappropriate admissions. Marketing materials should accurately describe the nature of hospice care and the criteria that must be met to receive hospice benefits. Of particular importance is assuring that marketing materials clearly describe the requirement that the patient forgo any curative treatment in order to maintain eligibility for hospice benefits.
Misuse of hospice inpatient care is also prominent on the OIG’s radar. Medical records of inpatients are vulnerable to review by the government to confirm the appropriateness of inpatient hospice benefits. Hospices should add review of inpatient care admissions to their list of audit and review items if they have not already done so.
Relationships between hospices and nursing homes are a particular area of concern. OIG is inherently suspicious of benefits that hospices may provide to nursing homes in order to gain hospice referrals of nursing home patients. For example, if a hospice provides services to nursing home patients that are normally provided by the nursing home, the benefit could be deemed to be a “kickback” for referrals. Hospices should have clear policies and procedures regarding the scope of services to be provided to nursing home patients. Any formal agreement with a nursing home should be carefully scrutinized to assure compliance and provision should be added agreeing to the appropriate scope of care that is to be provided to nursing home patients.
Government focus on hospice providers should heighten awareness to these issues. Hospices must make certain that they have formal compliance programs in place and that the compliance program is actively operated to identify and address risk. Certainly, the risks identified above should be addressed by all hospice providers. There are a broad range of additional items that should be actively addressed. Additionally, all elements of the compliance program should be fully operationalized. Even the most robust compliance program will not necessarily detect all compliance problems. It is important that hospice providers are able to demonstrate that they are continually monitoring risk and operating their program. When undetected programs come to light, the hospice provider will be able to show that reasonable steps are routinely taken to identify and correct problems. This will go a long ways toward reducing potential exposure, even in cases where risk is not detected through the program.
Hospice Issues on OIG 2013 Work Plan
- OIE to review hospice marketing materials and practices.
- Review of financial relationships with nursing homes.
- Review installment process to determine appropriateness of eligibility determinations.
- Review percentage of hospice patients who are in nursing homes.
- Suspicion over “marginal” hospice patients in nursing facilities.
