Under the OIG Microscope –
Home Health and Hospice
Deborah Randall, JD
Health Services &Telehealth Advisor
law@deborahrandallconsulting.com
202-257-7073
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Why the Increased Scrutiny
• History – Operation Restore Trust in the
1990’s affecting Home Health Medicare
• Change of reimbursement for Home
Health in 2000 to PPS [prospective
payment system], some years after
hospital DRGs and nursing home PPS
• Movement under President Bush to patient
centered care – ‘Money Follows the
Person’
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History and Scrutiny
• Addition of Patient-controlled personal
care under the Medicaid optional benefit
• ‘Nursing Home without Walls’ approach to
de-institutionalizing chronic care, and
Olmstead decision underscoring patient’s
right to least restrictive environment for
care
• Limited budgets for State Agency surveys
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History and Scrutiny
• Surge of new Home Health Agencies after end
to certificate of need in many states
• State Medicaid program inconsistency in
oversight of Medicaid programs plus lack of
administrative funds devoted to fraud reviews
• Cyclical fraud issue in DME area and rise of
power wheelchair vehicle scandals – common
issue of unobserved relationship between
supplier/provider and vulnerable elder at home
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History and Scrutiny
• Hospice as small, underutilized service
• Traditions and ‘core services’ concepts
• Coverage by episode of care with
capitated reimbursement in the aggregate
BUT daily reimbursement; no co-pay
• Positive promotion of end of life care and
changes in physician attitudes
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History and Scrutiny
• Regulatory requirement for Medical
Director role in Hospice with little
description of who and how role is played
• ? Other possible changes in hospice
service environment stemming from
changes in physician, nursing facility,
home health and assisted living areas
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Compliance Officers’ attention to
OIG Annual Work Plans
• Compliance planning includes review of
laws, regulations, and interpretations such
as OIG advisory opinions even though
these are provider-specific
• OIG signals directions and concerns
through testimony before Congress,
Reports and OEI recommendations, and
the Annual Work Plan which is public
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OIG Work Plan Structure
• Work Plan is structured both across
payment areas –Medicare and Medicaid—
and across industries
• Compliance officers, advisors and
attorneys need understanding of the
mechanisms of the industries to identify
concerns, audit targets and training and
teaching requirements
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Provider Structure
• Medicare home health agencies [HHAs] must be
certified, 42 CFR 484; Medicaid home health
care must be delivered by certified HHAs except
for certain waivered Home and CommunityBased services [HCBS]; Hospices must be
certified, 42 CFR 418, for Medicare/Medicaid $
• Hospices, HHAs and HCBS agencies may be for
profit/non profit; independent or hospital/SNF
based; private, publicly traded or governmentally
owned
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Site of Care
• HHA services are in any ‘home’, including an
assisted-living residence, but not in a ‘nursing
facility’ or hospital. HCBS sometimes have a
broader site of care. Private duty nursing
services may supplement institutional care,
depending on the State Plan.
• Hospice services are ‘routine homecare’ or
‘continuous care’ in a residence including a nonSNF; ‘in-patient care’ in a hospital/SNF; or
‘respite’ in a SNF or hospital [w reduced nursing]
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Miscoded HHA Casemix
• OIG checking if payment codes [HHRGs]
are accurate. These derive from the
assessments done on the ‘OASIS’ tool by
the providers.
• Four levels of payment; intensity of
therapy and care needs, diagnoses and
prior hospitalizations drive levels. One
level looks at total visits < 4 [LUPA].
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Concern about OASIS accuracy
• CMS has not probed OASIS accuracy;
and submissions are indirect, through the
State Agency
• OASIS C now linking to quality of care,
value based purchasing as goal, and
National Quality Forum recommendations
• Pressures on HHA staff from several
directions
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High Outlier HHAs
• Massive statistical issue with Florida HHAs
• Change in 2010 PPS rule [maybe statute]
to cap each HHA outlier at not more than
10%
• Same Underlying Concerns Linked to =
DIABETES INJECTION VISITS
DIABETES SELF-MANAGEMENT
PROGRAMS - GEOGRAPHICS
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Utilization and Profitability
• OIG concerned about growth in HHA
payments, blatant false billing rackets
• MedPac taking the lead in suggesting
profitability levels suggest overpayment
• Congress- Senate Healthcare reform bill is
clipping the market basket and updates to
=> 42% decrease in HHA payouts over ten
years
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Medicaid homecare and
community-based services
• States and CMS have been lax in
monitoring homecare services, surveys,
the entitlement of recipients, and the
duplication with other paid services such
as assisted living
• Personal care services by uncredentialed
workers is on the rise. Sometimes
subcontracted to HHAs, sometimes direct
to the home
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Dual-eligible homecare patients
• Patients may be eligible for different
services, or staffing of services from
Medicaid and Medicare in both homecare
and hospice.
• Medicaid as payer of last resort
• Failure to properly identify billing situation
could move from error to false claims
situation, given the highlighting of this
issue by state Inspector Generals
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Compliance Officer Goals
• Audit to the problematic growth trends
• Monitor maintenance services to
chronically ill patients
• Ask about and participate in finance and
marketing meetings of your HHA to
measure if message is problematic
• Work with clinical staff to prevent trend to
a ‘perfect’ and expensive OASIS pressure
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Hospice Physician Billing
• OIG studying frequency and total
expenditures for billed services under Part
A and Part B Medicare
1. Does hospice have correct distinction
for administrative physician services
including service on the IDT, as medical
director or consulting physician advising
the hospice entity which are non-billable
=> Teachable moment; audit topic
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Hospice Physician Billing
2. Does the hospice, not the physician, bill Part A
for any medical service covered under the
benefit & rendered by physicians with any
relationship to the hospice. This includes
volunteers who may also be the patient’s
attending
=> Compliance documentation and control
moment. Fraud and kickback potential for
physicians who will receive 100% pass through
from hospice, but 80% Part B if physician billed
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Hospice Physician Billing
3. Is the physician service medically
necessary for the hospice patient?
Compliance concern = > are referring
physicians who are also contracted to
the hospice getting paid for more visits
than the average patient whose
physician does not have a relationship
with the patient? RAC, ZPIC and MAC
also are concerned about this.
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Cahaba Hospice Guide
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Billing error of physicians’ care of
patients in hospice
• Hospices must properly educate physicians that
they cannot bill when the hospice is required to
do the billing.
Compliance hotspots => Is service related to the
terminal illness; is the Part B billing for
certification and recertification of a care plan, or
is that absorbed into the work of the IDT; is the
medical director referring to the hospice and is
she/he in an administrative home visit.
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Utilization trends
• Since 1997 Balance Budget Act, a patient
potentially could have numerous consecutive
certification periods if terminal status is
demonstrated and documented.
• ‘Six month’ likely outside limit of continued life
varies by illness, environment, age and
numerous factors including stabilization and
deterioration. You look forward from the
moment you are assessing in the entitlement
decision for coverage.
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Utilization trends,cont.
• Hospice fraud cases and settlements of False
Claims cases have focused on
1.long duration cases;
2.non-cancer diagnoses especially
Alzheimer’s,debility, Parkinson’s and ALS;
3. patients residing in nursing facilities and
4. the documentation which supports or not the
reasonable determination of terminality.
• Physicians [no NPs] re-certify but rely on the IDT
and care-giving staff to keep the case open.
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MedPac questions duration of
hospice cases; OIG watching
• Healthcare Reform may lead to an independent
review panel with more authority even than
MedPac is showing
• OIG traditionally advocates to Congress for
payment methodology changes when high
growth rate plus examples of abuse suggest that
broad-based approach. With HHAs, OIG
pressed for PPS to replace fee for service.
• Hospices are paid every day whether an active
service is delivered or not; there is no co-pay
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Duplicate billing of hospice drugs
• Patients should not be submitting Part D
reimbursement requests for any drug related to
the terminal illness or palliation of that illness
• Hospices should instruct their patients, the
nursing facilities where patients reside, assisted
living residences or other providers from which
patients derive services.
• NOTE- parallel to the NF not billing room and
board when patient is Medicaid recipient and NF
is paid over room and board by the hospice
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The ‘missing’ Topic
• In past, OIG signaled reviews of hospice
patients in nursing facilities as high level of
review
• These concerns are now evidenced in
nation-wide investigations of hospices
concerning length of stay, questionable
terminal status and relationships between
hospices and long term care facilities
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Compliance Officer Goals
• Design and monitor training to physicians
and hospice billing office
• Watch for spiking trends of physician
billing generally, and by practitioner
• Discourage excessive use of ‘consultants’
• Underscore with Medical Director her/his
role in supervision of physicians and
administrative direction of the hospice
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Compliance Officer Goals, 2
• Ensure the contracts between hospice and
nursing facilities meet new requirements of the
Conditions of Participation 42 CFR 418, in place
since December 2008.
• Audit the admission trends of the hospice,
review the promotional materials and the
budget, interview any liaisons placed in
community facilities or sent to doctors’ offices
• Train on the limitations of in-patient and
continuous care as components of hospice care
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Contact Info
THANK YOU
Deborah Randall, JD
law@deborahrandallconsulting.com
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