Home Health and Hospice in the Crosshairs
Governmental Enforcement Actions Against Post Acute Care 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 whistleblowers such as employees or others bring qui tam actions or make complaints to government agencies.
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.
CMS Home Health Surveys – Report On Re-Certification
On may 14, 2013, CMS released a report based on a study of state re-certification of Medicare certified home health agencies. The study was based on CMS data for Federal fiscal years 2010 and 2011 and identified the extent to which State agencies and accreditation organizations conducted timely re-certification surveys. The survey also analyzed the extent to which home health agencies received deficiency citations, corrected deficiencies, or had complaints lodged against them. The analysis also looked at CMS use of its “look behind” authority to assess the performance of accreditation organizations and State agencies.
The CMS home health survey report found that State agencies and accreditation organizations conducted re-certification surveys for nearly all HHAs within the required 36-month time-frame Approximately 12 percent of HHAs were cited with “condition” level deficiencies as a result of these surveys. Ninety-three percent of these HHAs corrected their condition-level deficiencies within the required 90-day time-frame. With few exceptions, HHAs corrected all condition-level deficiencies cited during complaint surveys.
State agencies exceeded the required number of look-behind surveys for oversight of accreditation organizations. CMS rarely conducted look-behind surveys for oversight of State agencies’ surveys of HHAs; such look-behind surveys are not required by Federal regulation.
The CMS report of home health surveys concluded with recommendation that CMS analyze survey data to determine whether it should routinely conduct look-behind surveys for oversight of State agencies As a result of this survey and report, CMS has stated that it will be working with its regional offices to identify State agencies with the greatest need for look-behind surveys.
You can access the CMS Home Health Survey Report at the following link: Home Health Survey Report
CMS Issues Changes In Hospice Reimbursement for 2014
Details Hospice Quality Reporting Program
CMS has release a proposed rule to revise and update Medicare hospice payment rates and the wage indexes for fiscal year 2014. The proposed rule would provide hospices with an approximately 1.1 percent increase in Medicare reimbursement during 2014. Per diem rates would increase by approximately 1.8 percent. However, hospices would be subject to a .7 percent reduction resulting from the implementation of the index budget neutrality adjustment to the wage index which is being implemented by CMS over a 7 year window period.
The rule also proposes a change in how CMS will update per diem rates in forthcoming years. Historically CMS has used a Change Request process for this purpose. In the future, per diem rates will be changed through an annual hospice rule.
In addition to payment modifications, the proposed rule outlines the requirements of the Hospice Quality Reporting Program and changes to the requirements of that program that are due to take place in 2016 and 2017.
CMS Fact Sheet on Proposed Hospice Rules Fact Sheet.
CMS-1449-P
Home Health Face-To-Face Requirement and the OIG Work Plan
The Office of Inspector General 2013 work plan included a new provision that relates to the home health “face-to-face” requirement. The face-to-face requirement was included in the Patient Protection and Affordable Care Act. A face-to-face encounter must occur with the physician within a 128 day timeframe; either within the 90 days before beneficiary start home health care or up to 30 days after care begins.
The OIG work plan states that the OIG will determine the extent to which home health agencies are complying with the statutorily required face-to-face physician certification requirement for home health patients.
Home health agencies by now are familiar with the face-to-face requirements but should take this opportunity to audit themselves for compliance. Policies should be put in place which require compliance with the face-to-face certification. The home health agency should monitor ongoing physician activities to assure that the encounter and certification are appropriately documented in the patient’s medical record. Failure to do so will expose the organization to compliance risk.
If you need any information regarding the home health face-to-face requirements or compliance issues for home health care providers, please do not hesitate to contact our offices.
The class action suit has alleged that Medicare routinely denied coverage based on the improvement standard. The settlement will require CMS to clarify that the improvement standard will no longer be applied to deny coverage.
To read Governor Scott’s Declaration go to:
Hospice Compliance Risks – Nursing Homes and Suspected Kickbacks
(This is the first of a blog series highlighting hospice compliance risks)
Hospice patients residing in nursing homes are particularly desirable for a number of reasons. First and foremost, residents of a nursing home represent sizable pool, indeed a stream, of potential hospice patients. Further, studies have shown that nursing home patients receiving hospice services can generate higher revenues than other patients, because on average, nursing home patients have longer lengths of stay than hospice patients receiving service at home. Additionally, there can be overlaps in services provided by nursing homes and hospice. The OIG has noted that residents of some nursing homes have received fewer services from hospice than patients in their own homes.
It is well-established that hospice profit margins increase as length of stay increases. It is also well-established that margins increase as the share of patients in nursing homes increase. Therefore, an exclusive or an almost exclusive arrangement with a nursing home to provide hospice services to residents can be quite valuable to a hospice provider. Because of the value associated with a nursing home-hospice relationship, the OIG will closely scrutinize such arrangements to determine whether there are any improper referral inducements. These arrangements, and conduct associated with these relationships, should be carefully structured and monitored on an ongoing basis by both the nursing home and the hospice as part of their respective compliance programs.
Suspected Kickbacks
The OIG has provided guidance that identifies some of the indicia of improper conduct in the relationship between a hospice and a nursing home
- Offering free goods or goods at below fair market value to induce a nursing home to refer patients to the hospice
- Paying room and board payments to the nursing home in amounts in excess of what the nursing home would have received directly from Medicaid had the patient not been enrolled in hospice
- Paying amounts to the nursing home for additional services that Medicaid considers to be included in its room and board payment to the hospice
- Paying above fair market value for additional non-core services which Medicaid does not consider to be included in its room and board payment to the nursing home
- A hospice referring its patients to a nursing home to induce the nursing home to refer its patients to the hospice
- A hospice providing free (or below fair market value) care to nursing home patients, for whom the nursing home is receiving Medicare payment under the skilled nursing facility benefit, with the expectation that after the patient exhausts the skilled nursing facility benefit, the patient will receive hospice services from that hospice
- A hospice providing staff at its expense to the nursing home to perform duties that otherwise would be performed by the nursing home
Hospice care involves services to terminally ill patients and their families at the end of life. Hospice is an alternative curative treatments. An unique feature of hospice is that services are provided not only to the patient but the family as well. A hospice patient chooses palliative care in lieu of curative care. The focus is on relief of symptoms, promotion of comfort, and maximizing quality of life at a time when its duration is known to be limited. Hospice services are typically provided in the patient’s home whether that is a private residence, a nursing home, assisted living facility or wherever the patient lives. Hospice care is provided by an interdisciplinary professional team that coordinates care and services. Medicare is the primary funding source for hospice, paying for over 85% of all hospice care.
Home Health Face To Face MLN Matters Publication
“A Physician’s Guide to Medicare’s Home Health Certification, including the Face-to-Face Encounter” is available in downloadable format at the CMS MLN site. This article is designed to provide education to physicians on home health certification and face-to-face encounter requirements. It includes milestones and requirements that must be met to perform physician home health face-to-face encounters, certifications, and recertifications. A link to frequently asked questions about the home health face-to-face encounter is also included.
Access the MLN Matters Newsletter On Face To Face Requirments
