Compliance and Fraud Risks for
Homecare and Hospice
Deborah Randall, Esq.
www.deborahrandallconsulting.com
law@deborahrandallconsulting.com
Congress Acts through PPACA
• HHAs 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
• Publically traded HHAs now @ same
categories of risk; reflecting SEC, OIG &
Congressional investigations
• Maximum time to submit Medicare claims is
not >12 mo from service
• Physicians must keep documentation on those
referrals @ high risk of waste/abuse —
specific mention of HHA and DME
• Face to face encounters[F2F] for both home
health and hospice to ensure eligibility with
Medicare standards for covered care
CMS Tavenner Announces Fraud
Efforts to Congress:
• Integrated Data Repository (IDR) “component”
of comprehensive, advanced data analytics.
IDR is a data warehouse that will integrate
Medicare and Medicaid claims data into a
single source for users across the agency.
• One PI is a web-based, single point of access
to conduct data analysis on the IDR.
Fraud Efforts
• Google Earth to determine a provider or
supplier's physical practice location – concern
about fraudulent claims about ractice
locations
• Public-Private Partnership of HHS and DOJFirst Board meeting in Sept 2012
OIG Work Plan 2012
• States’ Survey and Certification of Home Health
Agencies: Timeliness, Outcomes, Follow-up, and
Medicare Oversight (New-N)
• Medicare’s Oversight of Home Health Agencies’
Patient Outcome and Assessment Data
• Missing or Incorrect Patient Outcome and
Assessment Data - N
• Questionable Billing Characteristics of Home
Health Services - N
OIG WorkPlan 2012
• Home Health Agency Claims’ Compliance
With Coverage and Coding Requirements
• Medicare Administrative Contractors’
Oversight of Home Health Agency Claims-N
• Home Health Prospective Payment System
Requirements for Coverage Documentation
• Services: Agency Claims Home Health
[Eligibility; Staffing; Licensure]
• Personal Care and Medicaid HHA billing
OIG WorkPlan 2012 - Hospice
• Acute-Care Hospital Inpatient Transfers to
Inpatient Hospice Care - N
• Hospice Marketing Practices and Financial
Relationships with Nursing Facilities -N
• Medicare Hospice General Inpatient Care and
whether Inpatient Facility billed drugs
• Hospice Services: Compliance With Medicaid
Reimbursement Requirements
Homecare Fraud Cases
• Flat out 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 on OASIS, records, responses to
ADRs
• United States v. Rahman, 11-CR-20540, ED MI,
plea filed 2012. Falsified physical therapy
credentials.
• Settlement and CIA, Maxim Healthcare,
9/11/11. [$150 million].
• United States v. Kirt, M.D. La., No. 3:10-cr00079, sentenced 42 months; 10/13/11.
• United States v. Mussa, D. Minn., No. CR-11266SRN, guilty plea entered 10/7/11.
Medicaid Personal care homecare aides not
provided.
• United States ex rel. Master v. LHC Group Inc.,
W.D. La., No. 07-1117, 9/29/11. Settlement;
$65 million. Whistleblower from a regional
consulting firm the provider had engaged.
• United States v. Nunez, S.D. Fla., No. 11-CR20113. Most of 21 defendants have pled;
kickbacks to patients and referral sources.
• No. Carolina broad-based, 18 Medicaid providers
• US v. Rodriguez, $20 million;plea entered April
2012 HHA Miami kickbacks to brokers who
created certifications and care plans;visits
falsified
• US v. Santos, 10 year exclusion for Miami nurse
And the latest...
• US v Ray-Vasser, plea bargain in St. Louis,
September 2012, owners of home health
agency paid patients for the use of their
names and identifying information to submit
false reimbursement claims to Medicaid for
nonrendered in-home services.
Homecare Investigations
• Congressional Investigations
--”Gaming” the system by Therapy Level
Targeting, SR 112-24, Report of the Senate
Comm. on Finance
• Security and Exchange Investigations
• On-going federal investigations; HEAT
• State fraud investigations
• Geographic focus
Hospice Fraud Cases
• Not terminally ill at admission [documentation
concerns]
• Kept on census after plateau; failure to
discharge long stay cases
• Admissions on steroids—the marketing cases
• New: Too many hospice physicians?
• OIG seeking nursing facility/hospice test case?
Hospice Cases
• United States v. Kolodesh, E.D. Pa., No. 11-CR464, indictment unsealed 10/12/11.
Allegations of kickbacks, ineligible patients,
cost report irregularities, falsification of charts
• Subsequent developments:
March 2012, Director Prof’l Services&4 nurses
indicted, allegedly authorized $9 million
inappropriate admissions, record alterations for
ADR, notes discharges when CAP exceded
... And it’s personal.
• The Director of Professional Services
faces up to 10 YEARS in prison.....
Additional Cases Initiated
• US ex rel Landis v. Hospice Care of Kansas,US DCt.
Kansas, Case No. 06-2455-CM. Settled.
• US ex rel Richardson and Brown v. Golden Gate
Ancillary LLC dbaAseraCare Hospice, 09-CV-00627AKK, N.D.Ala, filed 12/6/11.
• US v. Odyssey, Wisconsin qui tam,$25 million
settlement; continuous care routinely at admission
• US v Hospice Family Care, AZ, May 2012. $3.7million
partially ineligible or too high level of care, owners
excluded
US v. Altus, Atlanta, GA
• $555,572 settlement with the United States to
resolve allegations under the False Claims Act
that it submitted false or fraudulent claims to
Medicare and Medicaid for inpatient hospice
services
• Whistleblower law suit
And even best-known and regarded
• March 2012: March 27, Hospice of the Bluegrass,
Lexington, Ky., $685,000 to settle false claims
allegations covering January 2002 to Dec. 31, 2008;
originated with five employee-turned-whistleblowers.
• Hospice of the Bluegrass, responded that, although the
physicians who specialize in hospice and palliative
medicine disagree with the feds about the patients’
eligibility for hospice care, chose to settle after
carefully considering the resources and time that
would be necessary to litigate the issue
Medical Director Kickbacks
• United States v. Goldman, E.D. Pa., No. 12-cr305-ER, indictment unsealed 8/2/12). Eugene
(Yevgeniy) Goldman, the medical director for
Home Care Hospice Inc. (HCH), charged with
one count of conspiracy and five counts of
receiving kickbacks for Medicare referrals.
According to the indictment, Goldman was the
medical director for HCH between December
2000 and July 2011.
Hospice Investigations
• Significant continuing issues
• Geographic focus
• Marketing
Counseling Clients: Fraud Concerns if
Census Trumps Compliance
• setting aggressive census targets for staff
• incentives and monetary bonuses for meeting the
aggressive census targets;
• threatening staff with terminations/reductions in hours if
census fell below targets;
• instructing staff to inaccurately document conditions of
patients to appear appropriate
• procedures that delay/make discharge difficult
• challenging or ignoring staff and physician’s
recommendations to discharge patients
• disregarding or ignoring compliance concerns raised by an
outside consultant.
Marketing Risks: HHA and Hospice
• Relationships
– 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
• Office breakfasts and lunches to discuss the
field of end of life, palliative and hospice care
• Same, as to home health services
• What is “community education”; what is
“coordination of care” –as to physicians,
nursing facilities, other referral sources
• What are specific educational requirements
between hospice and nursing facilities
• CEUs = where and how they might be given,
saving the costs to inpatient facilities/nurses
• Physician contracted relationships in hospice
• Physician medical directors of nursing facilities
also working for home health or hospice –
Physician gets full payment from the hospice
versus only 80% from Medicare Part B and
burdens and uncertainty of collecting co-pays
from a patient
Hospice-specific Marketing
• Continuous care in hospice is marketed to patients, families
and personal physicians
– But coverage is only for infrequent periods of
intensive pain and care management
– Continuous care must be precisely documented= ?
Falsifications risk
• In-patient transfers from hospital to hospice in-patient unit –
rather than D/C to the home
– In- patient coverage is for out-of-control pain
– Hospitals avoid losses on DRGs+death statistics; gain a
payment from hospice as in-patient provider
Tee-ing Up New HHA Fraud Cases
• HHS prefers physician seeing potential HHA
patient to be the certifier of care – physician
creating and signing—but has given
“flexibility” for INPATIENT physician F2F
• Strict time lines pre or post admission
• No HHA employee may do the encounter OR
give information to the certifying physician –
Attestation statement: Received? Sufficient??
• Certifications and signature of physician
dated by the physician = no date stamping
F2F HHA Fraud Risks
• Telehealth permitted but regulation uses most
narrow interpretation of PPACA
• So no home based telehealth patient. Can be
in physician office, rural health clinic, rural
mental health clinic, rural hospital outpatient,
rural ESRD agency…..no urban-based patient
can use telehealth for a F2F. Senator Thune
introduced a Bill to expand on the locations.
HHA Therapy Changes
• Reasonably attainable within a predictable or
reasonable timeframe
• Using standardized patient assessments, outcome
measurement tools, or
• Measurable assessments of functional outcome
• Measurements done at beginning, during and
after treatment regime
• Visits must require skilled level or Therapy is not
covered
• Maintenance plan @ LAST VISIT
Hospice F2F
• Physician or NP sees the patient PRIOR to 3d
Certification start date – if later, no billing for
care in the “gap”; EXCEPTIONS
• Hospice must search up to 9 databases!
• Attestation separately signed and dated
• Only the hospice physician certifies – per diem
contracted physicians allowed but ? effect on
quality of care, coordination
• No telehealth visit even though statute is
silent on hospice and telehealth
Tee-ing Up Hospice Fraud Cases
• Quality in hospice not subject to uniform
standards; quality in care, risk of “underserving”
• Hospice Wage Index Reg for 2011 proposes:
“participation in QAPI programs that
address at least 3 indicators related to patient care
reflects a commitment not only to
assessing the quality of care provided to patients
but also to identifying opportunities for
improvement that pertain to the care of
patients.”
KickBack and Homecare
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Institutional relationships
Liaisons
Discharge Planners
The patients, themselves, can be the subject
of an “inducement”
• There are no monetary thresholds for a
kickback but HHAs think they can use Stark
dollar amounts as safeguard measures
QUESTIONS?
Deborah A. Randall, Esq.
202-257-7073
law@deborahrandallconsulting.com
www.deborahrandallconsulting.com