Compliance Program Evolution for
Home Health and Hospice in 2011
DEBORAH A. RANDALL, ESQ.
LAW FIRM OF DEBORAH RANDALL
TELEHEALTH CONSULTING
law@deborahrandallconsulting.com
WWW.DEBORAHRANDALLCONSULTING.COM
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/wor
kplan/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/wor
kplan/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
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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 Randall
202-257-7073
law@deborahrandallconsulting.com
www.deborahrandallconsulting.com