Determining "Medical Necessity" in an Government Review of
Skilled Nursing Facility Records
Judy Wilhide Brandt, RN, BA, RAC-MT, C-NE
Wilhide Consulting, Inc.
www.judywilhide.com
August 2015
Speaker Disclosures
Judy Wilhide Brandt, RN, RAC-MT, C-NE has
disclosed that she has no relevant financial
relationship(s).
Learning Objectives
By the end of the session, participants will be able to:
• Recognize possible government audit types:
Recovery Auditor (RAC), Medicare Administrative
Contractor (MAC), Zone Program Integrity Contractor
(ZPIC);
• Understand Department of Justice (False Claims
Actions), procedures and possible outcomes
• Examine role of physician/npp documentation in
substantiating "medical necessity" in a SNF Medicare
clinical record during any government probe.
• Examine recent cases in which the government
successfully brought False Claims actions against
nursing facility owners for substandard quality of care
and/or Medicare/Medicaid fraud.
AMDA Long Term Care Medicine - 2014
Government Landscape 2005 - now
Historical
Projection
https://paymentaccuracy.gov/programs/medicare-fee-service
AMDA Long Term Care Medicine - 2014
Percentage Distribution of Improper Payments
(FY 2013)
Medicare 34%
Medicare Advantage 11.1 %
Medicaid 13.6%
Jan 15, 2015: https://paymentaccuracy.gov/govt-wide-pie-chart
SNFs are inherently overpaid
medpac.gov
• MedPAC Report 1/13/15: Need for skilled
nursing facility payment reform is urgent,
payment system design flawed
 SNF payments are now the least accurate since 2006
 Therapy payment based on amount SNF chooses to
provide, rather than patient characteristics and clinical
need for therapy
 Non-therapy ancillary (NTA) reimbursement is tied to
nursing staff time, but NTA service costs are not
correlated with nursing costs.
 This encourages the SNF to focus on admitting therapy
patients and furnishing lots of therapy to them. Over
time, the share of intensive therapy days has steadily
grown.
SNFs are billing inappropriately
https://oig.hhs.gov/oei/reports/oei-02-09-00200.asp
11-09-2012: Inappropriate Payments to Skilled Nursing Facilities
Cost Medicare More Than a Billion Dollars in 2009 - Conclusions
 CMS should instruct its contractors to:
• Increase SNF medical review
• Target known problem payment issues.
• Rehab Resource Utilization Groups (RUGs)
• Identify SNFs with recurring problems &
target these for further investigation
AMDA Long Term Care Medicine - 2014
Are All Improper Payments Fraud?
• No. In fact, the vast majority of improper payments
are due to unintentional errors. For example, an error
may occur because a program does not have
documentation to support a beneficiary’s eligibility
for a benefit
• Also, many of the overpayments are payments that may
have been proper, but were labeled improper due to a
lack of documentation confirming payment accuracy.
We believe that if agencies had this documentation, it
would show that many of these overpayments were
actually proper and the amount of improper payments
actually lost by the government would be even lower than
the estimated net loss discussed above.
http://www.paymentaccuracy.gov/about-improper-payments#q2
Many Agencies Charged with Oversight
DOJ
RAC
ZPIC
Medicaid
MAC
CERT
SNF
Chart
OIG
Medicare Administrative Contractor (MAC):
• Perform medical review:
 The collection of information and clinical review of
medical records by Medicare Administrative Contractors
to ensure that payment is made only for services that
meet the Medicare coverage, coding and medical
necessity requirements.
• Refer to fraud investigators as appropriate
• Recoupment
• Perform claim appeals
• Process claims
• Enroll providers
• Provide educations
NH: National Gov Services (NGS)
VA: Palmetto
Recovery Audit Program (RAC Audits)
• Purpose: to recoup overpayments associated
with services for which payment is made under
Medicare part A or B
http://www.cms.gov/Research-Statistics-Data-and-Systems/MonitoringPrograms/Medicare-FFS-Compliance-Programs/Recovery-AuditProgram/Downloads/RAC-Program-Improvements.pdf
Recovery Audit Enhancements 2015
• Recovery Auditors are required to have a Contractor
Medical Director and are encouraged to have a panel
of specialists available for consultation.
• Recovery Auditors will not receive a contingency fee
until after the second level of appeal is exhausted.
• CMS will require the Recovery Auditors to broaden
their review from primarily hospitals to include all
claim/provider types, and will be required to review
certain topics based on a referral, such as an OIG
report.
http://www.cms.gov/Research-Statistics-Data-and-Systems/MonitoringPrograms/Medicare-FFS-Compliance-Programs/Recovery-AuditProgram/Downloads/RAC-Program-Improvements.pdf
Recovery Audit Enhancements 2015
• Recovery Auditors will be required to maintain an
overturn rate of less than 10% at the first level of
appeal, excluding claims that were denied due to
no or insufficient documentation or claims that
were corrected during the appeal process.
• Recovery Auditors will be required to maintain an
accuracy rate of at least 95%.
http://www.cms.gov/Research-Statistics-Data-and-Systems/MonitoringPrograms/Medicare-FFS-Compliance-Programs/Recovery-AuditProgram/Downloads/RAC-Program-Improvements.pdf
ZPIC: Zone Program Integrity Contractor
•Primary Goal: Investigate instances of
suspected fraud, waste, and abuse:
• ZPICs may:
 Conduct an interview
 Conduct an onsite visit
 Identify the need for a prepayment or auto-denial edit
and refer these edits to the MAC for installation
 Withhold payments; and,
 Refer cases to law enforcement.
http://www.cms.gov/Outreach-and-Education/Medicare-Learning-NetworkMLN/MLNProducts/downloads/Fraud_and_Abuse.pdf
JudyWilhide.com
 Request medical records and documentation;
AMDA Long Term Care Medicine - 2014
Types of Improper Payments
Program Integrity encompasses a range of activities to target the various
causes of improper payments:
Mistake
Error
Incorrect
Coding
Inefficiencies
Waste
Medically
unnecessary
services
Bending the
Rules
Abuse
Intentional
Deception
Improper
billing:
upcoding
http://www.cms.gov/Outreach-and-Education/Medicare-Learning-NetworkMLN/MLNProducts/downloads/Fraud_and_Abuse.pdf
Fraud
Billing for
services/suppli
es not provided
AMDA Long Term Care Medicine - 2014
• Fraud is making false statements or
misrepresentation of material facts to obtain
some benefit or payment for which no
entitlement exists.
 Intentional deception or misrepresentation by a
person that could result in some unauthorized
benefit to them or some other person.
JudyWilhide.com
Department of Justice
False Claims Act Very Briefly
• (a) Any person who
 knowingly causes to be presented a false/fraudulent
claim
 knowingly makes, uses, or causes to be made or used,
a false record or statement to get a false or fraudulent
claim paid;
 conspires to defraud by getting a false or fraudulent
claim paid or approved by the Government;. . .
Or
 knowingly makes, uses, or causes to be made or used,
a false record or statement to conceal, avoid, or
decrease an obligation to pay or transmit money or
property to the Government,
• Is liable to the United States Government for a
civil penalty of not less than $5,500 and not
more than $11,000, plus 3 times the amount of
damages which the Government sustains
because of the act of that person.
Per Claim
• (b)The terms "knowing" and
"knowingly" mean that a person
 (1) has actual knowledge of the
information;
 (2) acts in deliberate ignorance of the truth
or falsity of the information;
or
• (3) acts in
reckless disregard of
the truth or falsity of the information,
and no proof of specific intent to
defraud is required.
AMDA Long Term Care Medicine - 2014
DOJ Press Release Oct 10, 2014
[Multi-State SNF Corp] agrees to 38 million settlement: 33 SNFs in 8 states
• These problems stemmed in large part from business model driven more by
profit and less by the quality of the care it provided.
• [SNF Corp] employed fewer skilled nurses than were needed to care for the very
sick residents in those facilities and failed to properly train and supervise the
staff it did have.
• Many disturbing examples of falls, fractures and head injuries to residents –
often unnoticed by the staff for hours – as well as malnutrition, dehydration,
pressure ulcers and infections - some of which required amputations and
unnecessary hospitalizations. Moreover, the chronic staff shortages and
poorly trained staff meant that residents who needed assistance with
feeding and toileting didn’t get that assistance, many residents were not
washed, resulting in poor hygiene, fluids were not provided, and residents
were not re-positioned for comfort and to prevent pressure ulcers.
• Short-term residents did not get the minimum skilled care that they needed
and [SNF Corp]’s long-term care residents were often ignored.
• 10 million was for medically unnecessary therapy
AMDA Long Term Care Medicine - 2014
DOJ Press Release 9/5/14
Two Companies to Pay $3.75 Million for Allegedly Causing Submission of
Claims for Unreasonable or Unnecessary Rehabilitation Therapy at Skilled
Nursing Facilities
The settlement resolves allegations that [SNFs] failed to prevent [Rehab company]
practices designed to inflate Medicare reimbursement, including:
• in lieu of using individualized evaluations to determine the level of care most
suitable for each patient’s clinical needs, presumptively placing patients in the
highest reimbursement level unless it was shown that the patients could not
tolerate that amount of therapy;
• providing the minimum number of minutes of therapy required to bill at the
highest reimbursement level while discouraging the provision of therapy in
amounts beyond that minimum threshold, despite the Medicare requirement that
the amount of care provided be determined by patients’ clinical needs;
• arbitrarily shifting the number of minutes of planned therapy between therapy
disciplines to ensure targeted reimbursement levels were achieved; and
• reporting estimated or rounded minutes instead of reporting the actual minutes of
therapy provided.
AMDA Long Term Care Medicine - 2014
DOJ Press Release Fall 2013
Nursing Home Operator to Pay $48 Million to Resolve Allegations That Six
California Facilities Billed for Unnecessary Therapy
Specifically, the government alleges [SNF]
• provided therapy to patients whose conditions and diagnoses did not warrant it,
solely to increase reimbursement from Medicare.
• created a corporate culture that improperly incentivized therapists and others to
increase the amount of therapy provided to patients to meet planned targets for
Medicare revenue, set without regard to individual needs
• [SNF] billed for inflated amounts of therapy it had not provided and that certain
patients were kept in these facilities for periods of time exceeding what was
medically necessary for treatment of their conditions.
“This settlement – one of the largest Medicare fraud cases against a nursing home
chain in U.S. history – demonstrates our commitment to protecting taxpayers who
fund important programs that benefit millions of Americans, but don’t want to see
their hard-earned money wasted on fraud or abuse.”
• [Redacted] which owns nursing homes in NC has
agreed to pay nearly $1 million to settle federal
allegations that it defrauded the Medicare program
following a multi-year investigation by the FBI and
HHS.
• The rehabilitation contractor, [redacted] put intense
management pressure on its employees to maximize
billing. Evergreen billed for unnecessary services and
forwarded the billings to [the SNF], which then
wrongfully billed those costs to Medicare.
JudyWilhide.com
From Asheville Citizen Times Newspaper: 2/11/11
Minneapolis Star Tribune 12/7/11
• The U.S. Justice Department has sued a large health care
company based in Kentucky, alleging that it paid more
than $10 million in kickbacks for access to Medicare and
Medicaid patients living in a chain of nursing homes.
• U.S. attorney said [redacted large Rehab Contractor].
began making illicit payments in 2006 as part of a deal
with Missouri businessmen who owned 62 nursing homes
in their state and an in-house company that provided
health services to the residents. The deal was premised
on [Rehab Contractor] plan to take control of the services
and expand billings under Medicare and Medicaid, the
complaint said.
DOJ press release: 6/28/12:
• The US Attorney’s Office Southern District of Iowa
has entered into a settlement agreement and the
HHS OIG has entered into a corporate integrity
agreement with [stand alone faith based non-profit
SNF], to resolve allegations of billing Medicare for
medically unnecessary physical, occupational and
speech therapy services
• [SNF] has paid the sum of $675,000 to settle the
allegations, and entered into a corporate integrity
agreement to ensure future compliance with federal
health care program requirements.
Physician/NPP Role in Ensuring Skilled Level of
Care Requirements are Met
Medicare Benefit Policy Manual, Chapter 8
Coverage of Extended Care (SNF) Services Under Hospital Insurance,
Revised 4/4/14
40 - Physician Certification and Recertification of
Extended Care Services
• Payment for covered posthospital extended care
services may be made only if a physician makes the
required certification, and where services are
furnished over a period of time, the required
recertification regarding the services furnished.
 40.1: Statements must be signed by the attending physician
or a physician on the staff of the skilled nursing facility who
has knowledge of the case, or by a physician extender:
• Nurse practitioner (NP)
• Clinical nurse specialist (CNS) or
• Physician assistant (PA)
who does not have a direct or indirect employment relationship with
the facility, but who is working in collaboration with the physician.
40 - Physician Certification and Recertification of
Extended Care Services
• If a physician/NPP refuses to certify, because, in
his/her opinion, the patient does not, as a
practical matter, require daily skilled care for an
ongoing condition for which he/she was receiving
inpatient hospital services (or for a new condition
that arose while in the SNF for treatment of that
ongoing condition), the services are not covered
and the facility can bill the patient directly.
• The reason for the refusal to make the
certification must be documented in the SNF’s
records.
Required Timetable:
Initial Certification:
• On admission or “as soon thereafter as practical.”
First Recertification:
• On or before day 14 of the stay.
Subsequent Recertifications:
• Intervals not exceeding 30 days from last
certification.
Delayed Certifications:
• Will be honored
where there has
been an isolated
oversight or lapse.
▫ Must include an
explanation and relevant
evidence for the delay.
SNF may choose format.
Medicare General Information, Eligibility, and Entitlement, Ch. 4 – Physician
Certification and Recertification: 40 - Certification and Recertification by
Physicians for Extended Care Services
• The certification must clearly indicate that posthospital
extended care services were required to be given on an
inpatient basis because of the individual's need for skilled
care on a continuing basis for any of the conditions for
which he/she was receiving inpatient hospital services.
• Recertifications must contain an adequate written record
of the reasons for the continued need for extended care
services, the estimated period of time required for the
patient to remain in the facility, and any plans, where
appropriate, for home care.
MBPM, Ch 8, Section 30: SNF Level of Care
Care in a SNF is covered if all of the following four
factors are met:
1. The patient requires skilled nursing or skilled
rehabilitation services, are ordered by a physician
and the services are rendered for a condition for
which the patient received inpatient hospital
services or for a condition that arose while
receiving care in a SNF for a condition for which he
received inpatient hospital services;
2. The patient requires these skilled services on a
daily basis
a.
b.
Five days a week for therapy
Seven days a week for nursing
MBPM, Ch 8, Section 30: SNF Level of Care
3.
4.
As a practical matter, considering economy and efficiency,
the daily skilled services can be provided only on an
inpatient basis in a SNF
Services delivered are reasonable and necessary for the
treatment of a patient’s illness or injury, i.e., are consistent
with the nature and severity of the individual’s illness or
injury, the individual’s particular medical needs, and
accepted standards of medical practice. The services must
also be reasonable in terms of duration and quantity.
If any one of these four factors is not met, a stay in a SNF, even
though it might include the delivery of some skilled services, is
not covered. For example, payment for a SNF level of care
could not be made if a patient needs an intermittent rather than
daily skilled service.
30.2.2 - Principles for Determining Whether a Service
is Skilled
• If the inherent complexity of a service prescribed for a
patient is such that it can be performed safely and/or
effectively only by or under the general supervision of
skilled nursing or skilled rehabilitation personnel, the
service is a skilled service
 “Skilled nursing” = licensed nurses (RNs performing services
or supervising LPNs) performing tasks that may not be
performed by unlicensed staff
 “Skilled therapy” = licensed therapists (OT or PT performing
or supervising assistants) performing tasks that require the
knowledge, skills and judgement of a licensed therapist
• SLP must be performed by a Speech Therapist (Medicare does not
allow Speech assistants)
30.2.3.1 - Management and Evaluation of a Patient
Care Plan
• The development, management, and evaluation of a
patient care plan, based on the physician’s orders and
supporting documentation, constitute skilled nursing
services when, in terms of the patient’s physical or mental
condition, these services require the involvement of
skilled nursing personnel to meet the patient’s medical
needs, promote recovery, and ensure medical safety.
 However, the planning and management of a treatment plan that
does not involve the furnishing of skilled services may not require
skilled nursing personnel; e.g., a care plan for a patient with organic
brain syndrome who requires only oral medication and a protective
environment.
 The sum total of nonskilled services would only add up to the need
for skilled management and evaluation when the condition of the
beneficiary is such that there is an expectation that a change in
condition is likely without that intervention.
30.2.3.2 - Observation and Assessment of Patient’s
Condition
• Observation and assessment are skilled
services when the likelihood of change in a
patient’s condition requires skilled nursing
or skilled rehabilitation personnel to identify
and evaluate the patient’s need for possible
modification of treatment or initiation of
additional medical procedures, until the
patient’s condition is essentially stabilized.
30.2.3.2 - Observation and Assessment of Patient’s
Condition
• If a patient was admitted for skilled
observation but did not develop a further
acute episode or complication, the skilled
observation services still are covered so long
as there was a reasonable probability for such
a complication or further acute episode.
“Reasonable probability” means that a
potential complication or further acute episode
was a likely possibility.
30.2.3.2 - Observation and Assessment of Patient’s
Condition
• Information from the patient's medical record
must document that there is a reasonable
potential for a future complication or acute
episode sufficient to justify the need for continued
skilled observation and assessment.
• Such signs and symptoms as
abnormal/fluctuating vital signs, weight changes,
edema, symptoms of drug toxicity,
abnormal/fluctuating lab values, and respiratory
changes on auscultation may justify skilled
observation and assessment.
30.2.3.2 - Observation and Assessment of Patient’s
Condition
• Where these signs and symptoms are such that there
is a reasonable potential that skilled observation and
assessment by a licensed nurse will result in changes
to the treatment of the patient, then the services are
reasonable and necessary.
• However, observation and assessment by a nurse is
not reasonable and necessary to the treatment of the
illness or injury where these characteristics are part
of a longstanding pattern of the patient's waxing and
waning condition which by themselves do not require
skilled services and there is no attempt to change the
treatment to resolve them.
30.2.3.2 - Observation and Assessment of Patient’s
Condition
• Skilled observation and assessment may also be required
for patients whose primary condition and needs are
psychiatric in nature or for patients who, in addition to
their physical problems, have a secondary psychiatric
diagnosis. These patients may exhibit acute
psychological symptoms such as depression, anxiety or
agitation, which require skilled observation and
assessment such as observing for indications of suicidal
or hostile behavior.
• However, these conditions often require considerably
more specialized, sophisticated nursing techniques and
physician attention than is available in most participating
SNFs. (SNFs that are primarily engaged in treating
psychiatric disorders are precluded by law from
participating in Medicare.) Therefore, these cases must
be carefully documented.
30.3 - Direct Skilled Nursing Services to Patients
Examples:
• IM or IV injections or feedings
• Enteral feeding at least 26 % daily calorie requirements
and provides at least 501 cc per day
• Naso-pharyngeal and tracheotomy aspiration;
• Insertion, sterile irrigation, and replacement of suprapubic
catheters;
• Early stages of oxygen therapy: Chronic O2 use not
skilled
• Care of colostomy early post op w/complications
30.3 - Direct Skilled Nursing Services to
Patients
• Heat treatments ordered by MD as part of active
treatment
• Treatment of decubitus ulcers, Stage 3 or worse, or a
widespread skin disorder
• Application of dressings involving prescription
medications and aseptic techniques. The following are
not considered skilled nursing:
 Changes of dressings for uninfected post-operative or chronic
conditions is unskilled
 Prophylactic and palliative skin care, including bathing and
application of creams, or treatment of minor skin problems
30.4 Direct Skilled Therapy Services to Patients
• Coverage for skilled therapy services does not turn
on the presence or absence of a beneficiary’s
potential for improvement from therapy services, but
rather on the beneficiary’s need for skilled care.
• Therapy services are considered skilled when they
are so inherently complex that they can be safely and
effectively performed only by, or under the
supervision of, a qualified therapist.
• These skilled services may be necessary to improve
the patient’s current condition, to maintain the
patient’s current condition, or to prevent or slow
further deterioration of the patient’s condition.
Skilled therapy services must meet all of the following
conditions:
• The services must be directly and specifically related
to an active written treatment plan that is based upon
an initial evaluation performed by a qualified physical
therapist after admission to the SNF and prior to the
start of therapy services in the SNF that is approved by
the physician after any needed consultation with the
qualified physical therapist.
• Approval can be:
 Signing the POT
 Signing the order with frequency, duration, modalities
 Signing the MD Cert with frequency, duration, modalities
Skilled therapy services must meet all of the following conditions:
• The services must be provided with the expectation,
based on the assessment made by the physician of the
patient’s restoration potential, that the condition of the
patient will improve materially in a reasonable and
generally predictable period of time; or,
• the services must be necessary for the establishment of
a safe and effective maintenance program; or, the
services must require the skills of a qualified therapist for
the performance of a safe and effective maintenance
program.
30.2.2.1 – Documentation to Support Skilled
Care Determinations
Claims for skilled care coverage need to include sufficient
documentation to enable a reviewer to determine whether—
• Skilled involvement is required in order for the services in
question to be furnished safely and effectively; and
• The services themselves are, in fact, reasonable and
necessary for the treatment of a patient’s illness or injury, i.e.,
are consistent with the nature and severity of the individual’s
illness or injury, the individual’s particular medical needs, and
accepted standards of medical practice. The documentation
must also show that the services are appropriate in terms of
duration and quantity, and that the services promote the
documented therapeutic goals.
30.2.2.1 – Documentation to Support Skilled
Care Determinations
• It is expected that the documentation in the patient’s
medical record will reflect the need for the skilled services
provided.
• The patient’s medical record is also expected to provide
important communication among all members of the care
team regarding the development, course, and outcomes
of the skilled observations, assessments, treatment, and
training performed.
• Taken as a whole, then, the documentation in the patient’s
medical record should illustrate the degree to which the
patient is accomplishing the goals as outlined in the care
plan.
Therefore the patient’s medical record must document
as appropriate:
• H&P exam, (including the response or changes in
behavior to previously administered skilled services);
• Skilled services provided;
• Patient’s response to the skilled services provided
during the current visit;
• Plan for future care based on the rationale of prior
results.
• Detailed rationale that explains the need for the
skilled service in light of the patient’s overall medical
condition and experiences;
• Complexity of the service to be performed;
• Any other pertinent characteristics of the beneficiary.
Suggestions from a “government legal expert”
• Be exceptionally involved in therapy delivery
 Get to know the therapists
 Attend their meetings
 Ask questions/give direction for the POT
• Be the SNF level of care director:
 Attend periodic Medicare meetings
 Communicate with Administrator, DON, Nursing Management
about level of care criteria
• Document often and in depth on SNF residents:
 Why is skilled observation/assessment necessary?
 What required skilled management?
 How is therapy going? Why is it necessary?
• Trust your gut
• Follow you internal “true north star”
Discharge from Part A
• We are required to give a resident notice of the
last covered day of Medicare A no later than two
days prior to the last covered day.
 Within that parameter, trust your knowledge of skilled
level of care requirements, talk to you team, and steer
the ship.
• Don’t let the ship steer you.
Section 260, of Chapter 30 of the CMS Claims Processing
Manual,
Questions/Discussion