DEBORAH A. RANDALL, ESQ.

LAW FIRM OF DEBORAH RANDALL

TELEHEALTH CONSULTING

law@deborahrandallconsulting.com

WWW.DEBORAHRANDALLCONSULTING.COM

Compliance Program Evolution for Home Health and Hospice in 2011

What changes? Everything?

Just because you have a compliance plan does not mean you have compliance

Just because your compliance program is part of orientation doesn’t mean your staff understand

Just because you have a compliance officer does not mean she is empowered or knowledgeable

If it is not “robust”, “effective”, measurable, and evolving, a compliance program is defective

Aftershocks of the Affordable Care Act

• ACA Restrictions on community based providers = reimbursement and regulations

• Expanded and unfolding enforcement provisions for the Office of the Inspector General [OIG], CMS and Department of Justice[DOJ] to champion

• New forms of care delivery focused on collaboration, cost savings and quality---with promise of technology in new use.

Medicare Shared Services

• Medicare Shared Services through ACOs are physician and hospital system-focused

• They cannot succeed without enhanced care coordination so Homecare and Hospice are key

• Highly complex issues in governance, relationships and “sharing”

DOJ, CMS, OIG, and Federal Trade Comm’n all focused on compliance issues

Enforcement

• Provider screening/enrollment requirements

• Entry into the Medicare program will not be automatic upon filing an 855 and obtaining a state license

—Providers or prior owners, those who managed Medicare providers, who left the program with unpaid Medicare Debt will likely be barred

—New providers will have to have compliance programs

• HHAs (existing) 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

• Home health companies in the middle of SEC, OIG & Congressional investigations

Affirmative obligation for any provider, supplier, Medicaid managed care organization, MA organization, or PDP sponsor that has received an overpayment to report and return the overpayment to the Secretary, state, intermediary, carrier, or contractor along with a written notification of the reason for the overpayment

• deadline for reporting and returning such overpayments is the later of 60 days after “identified” or the date that any corresponding cost report is due. Claim morphs to “false”.

• False Claims Act liability ALREADY EXISTS for knowingly concealing or knowingly and improperly avoiding an “obligation” to pay money to the government

• overpayments retained >deadline =>“false”

• Maximum time to submit Medicare claims is no >12 mo from service, even for difficult cases like hospice sequential billing.

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

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

• ACA provides $350 million over ten years to enhance enforcement of the fraud and abuse efforts of the governmental agencies dealing with Medicare and Medicaid

• A regulation on compliance programs will issue by Fall of 2011 – a solicitation of views was published in September 2010 and the DHHS CMS staff are working on the requirements along with federal OIG.

• Under the law, permissive exclusion of individuals by OIG is intensifying

• Under PPACA, exclusion of providers for providing false information on your 855

• Under PPACA, exclusion of providers for failing to provide information to OIG when required. Already have immediate suspension risk at >24 hrs after written request.

Federal Sentencing Guidelines Changes

• The benefit of the federal Sentencing Guidelines [reducing possible criminal penalties] through the establishment of a corporate compliance plan

• Sentencing Guidelines guide other parts of governmental enforcement

• “Effectiveness” now must be demonstrated, meaning measurable =>reduced penalty

Rise in Home Care Fraud

• 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 OASIS, records, ADR response

MedPac & CMS’s Looking at Home Health Industry Behavior Yielded Results

• Obama: PPACA included significant cuts in home health, with Congress “on board"

• Behind the scene maneuvers to cut the profit from home health?

• Concern about ill-prepared or unscrupulous new entrants into HHA field

• Restraints such as cutbacks on surveys; declining to allow CHAP/JCAHO to qualify for new HHA branch; Dec. 18/Jan 1st Freeze

Hospice Investigations and Prosecutions

• Subjects for review: terminality;length of stay; relationships. Approaches of the investigators

• Others in the mix---MedPac; Medicaid; MACs; CMS; Congressional committees; ZPICs [successors to PSCs]

• Cases Odyssey => SouthernCare => Kaiser =>VistaCare => Hospice of Kansas

MEDPAC --2011--on Hospice

• Recommends OIG investigate the prevalence of relationships between hospice/ALFs or NFs

• Questions enrollment practices of hospices with “unusual” patterns of very long/short stays or high #patients discharged by others

• “Correlation” of long length of stay and marketing “deficiencies”

• MEDPAC refers to ‘dark’ side of hospice

Medical Directors

MEDICAL DIRECTORS• If there is only one physician connected to the hospice, this

physician is “expected to provide direct patient care to each patient.”

• Medical Director [MDir] provides “overall medical leadership” in the hospice.

• Numerous physicians in the MDir role “would likely result in inconsistent care and decreased accountability.”

• Certifications depend on information= review of DX, current medical findings, meds and treatments 418.102 (a) and (b)

OIG is looking at Hospice/Nursing Facilities

Are Hospice COPs an addition to Kickback Concerns because

Quality of Care failures can be False Claims. COPs require

· Legally binding, written arrangement

• Designated liaison for both providers

• Primacy of the hospice in care decisions — ”full responsibility”

• Mandated strong communication and coordination — in written terms 112(e)(3)

• Absent revised SNF regulations, however, how will it “work”?

Backbone of Compliance Program

• Risk assessments,alerts,advisory opinions:

• 1998 Homecare Guidances www.oig.hhs.gov/authorities/docs/cpghome

• 1999 Hospice Guidances www.oig.hhs.gov/authorities/docs/hospicx

• www.oig.hhs.gov/fraud/docs/alertsandbulletins/hospice

• www.oig.hhs.gov/fraud/advisoryopinions

http://www.oig.hhs.gov/publications/workplan/2011

=OIG 2011 Work Plan• Hospice services to Nursing Facility Residents

-By Hospices and by NFs

-Aide services emphasized

-COPs of both mentioned

-Coordination of care; care plans

-”Service and payment arrangements between them”

-”appropriateness” of in-patient claims

http://www.oig.hhs.gov/publications/workplan/2011/

• Hospice High Utilization in Nursing Facilities

-Characteristics of NFs with high hospice utilization patterns and the characteristics of the hospices that serve them

-Reference to 82% non-coverage study

-Incentives to admit long stay; MedPac

-Business relationships between entities

-Marketing practices/materials of hospices

MICROSCOPE FOR HOMECARE AND HOSPICE=>MICROSCOPE

»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

Marketing Risks for Providers

• Free goods and services• Home support services• Relief from payment for pharmacy• Aide/companion• Ancillary supplies• Supplements to assisted living services• Relief from Part B co-pays to physicians • Telehealth devices and services• Pre-hospitalization assessments .•  

Evolving Role of Compliance Officer

• Relate the PPACA Changes to Priorities and Tasks for the Agency

• Discuss all Operational Changes among the Finance, C Suite, Clinical and Billing Staff

• Identify Relationships at Risk

• Track ALL paybacks identified and keep timelines

• Continuous, high level pro-active role of CCO

Evolving Role of Compliance Officer

• Force the annual review of the Compliance Program of the Health Provider

• Insist on a closer role with the CFO

• Recognize the need for spot-check audits of the Compliance Program to ensure it is “effective”, “robust”, “evolving”, “understood”

• Insist on Governing Body participation

Contact Information

Deborah A. Randall, J.D.Health Law Attorney and Consultant

Law Office of Deborah Randall202-257-7073law@deborahrandallconsulting.comwww.deborahrandallconsulting.com