Transcript Slide 1

NYAHSA 2010 ANNUAL MEETING
FRAUD AND ABUSE CONCERNS IN
HOSPICE AND HOME-BASED CARE
DEBORAH A. RANDALL, J.D.
[email protected]
www.deborahrandallconsulting.com
202-257-7073
LATEST NEWS…..
• The CMS folks now say $ 5.2 billion in
recoveries were returned to the Medicare Trust
fund in fiscal year 2009 by combined efforts of
HHS, Department of Justice and OIG. This is
nearly double prior year.
• $441 million returned to Medicaid program
Private Insurance Fraud
• Blue Cross Blue Shield plans collected $510
million in fraud savings and recoveries during
calendar year 2009, a 47% ↑ in 1 yr [May 26
BCBSA survey announced]
• $318 million =“avoiding payment on
fraudulent or mistaken claims”, 62% ↑1 yr.
• $192 million =recovering fromfraudulent or
mistaken claims, 28% ↑ 1 yr.
Medicare, Medicaid, and CHIP Program
Integrity Provisions
• Sec. 6401. Provider screening and other
enrollment requirements under Medicare,
Medicaid, and CHIP.
• Sec. 6402. Enhanced Medicare and Medicaid
program integrity provisions.
• Sec. 6403. Elimination of duplication between
the Healthcare Integrity and Protection
• Sec. 6408. Enhanced penalties.
• Sec. 6409. Medicare self-referral disclosure
INTEGRITY, cont.
• Sec. 6404. Maximum period for submission of
Medicare claims reduced to not > 12 month
• Sec. 6405. Physicians who order items or
services required to be Medicare enrolled
• Sec. 6406. Physician documentation on
referrals at high risk of waste and abuse.
• Sec. 6407. Face to face encounter with patient
required before physicians may certify HHA
INTEGRITY, cont.
• Sec. 6408. Enhanced penalties.
• Sec. 6409. Medicare self-referral disclosure
protocol.
• Sec. 6411. Expansion of the Recovery Audit
Contractor (RAC) program.
• Sec. 6501. Termination of provider
participation under Medicaid if terminated
• under Medicare or other State plan.
INTEGRITY, cont.
• Sec. 6502. Medicaid exclusion from
participation relating to certain ownership,
control, and management affiliations.
• Sec. 6601. Prohibition on false statements and
representations.
• Sec. 6604. Applicability of State law to
combat fraud and abuse.
New Fraud and Abuse Laws
A. PPACA Overpayment Reporting (Sections 6402(a) and 6506)
• 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.
• False Claims Act liability ALREADY EXISTS for knowingly concealing
or knowingly and improperly avoiding an “obligation” to pay money to the
government.
• overpayments retained beyond the deadline become actionable under the
False Claims Act.
B. MANDATORY COMPLIANCE PROGRAMS FOR ALL PROVIDERS
Role of the Board of Directors
• “The most significant role is becoming
sufficiently educated about the topic to ask
appropriate questions and determine whether
management has the expertise, the will, and
the metrics to provide a reasonable assurance
of compliance, and for the Board members
to review intelligently the responses and
submissions of management” Jim Sheehan
Looking at the full Spectrum of Homebased Care
• This is where the expansion will continue.
• This is where PPACA drives the process
towards management of chronic disease.
• This is where health information technology is
finally showing with reliable data that
telehealth can integrate with traditional
care,but government is wary of abuses.
• This is where staffing innovation must occur.
Hospice Investigations and Prosecutions
• Subjects for review
• Approaches of the investigators
• Others in the mix---MedPac; MediCal; MACs;
CMS; Congressional committees; ZPICs
[which are successors to PSCs]
Department of Justice Announcement
• SouthernCare, Inc. (SCI), several affiliated
entities, and SCI executive paid the Federal
Government $24.7 million and enter into a 5year CIA. Operating in 15 states, SCI
allegedly submitted claims for treating patients
who did not meet Medicare’s hospice
eligibility criteria. Qui tam lawsuits filed by
former SCI employees.
Heightened Hospice Concerns- What
Practices Need Review?
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WHO
WHAT
WHEN
WHERE
WHY
HOW
HOW OFTEN
Heightened Concerns
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WHO- Are you admitting to care
WHAT- Are your referral relationships
WHEN- Are you performing assessments
WHERE- Are your patients residing
WHY- Are you hiring physicians
HOW- Are you ensuring quality of care
HOW OFTEN- Are you seeing patients
Hospice Expenditures*
• In 2008, more than 1 million Medicare
beneficiaries received hospice services
from more than 3,300 providers and
Medicare expenditures exceeded $11
billion.
*MedPac 2010
Challenges to Hospice Reimbursement
• MEDPAC recommendations to alter
reimbursement methodology and create
“ U-shaped curve“ with higher payment at
beginning and end/death; Congress includes
directive in Healthcare reform bill
· MEDPAC refers to ‘dark’ side of hospice
industry
Hospice Quality
Quality of care—
‘‘We do not have sufficient evidence to assess
quality, as information on quality of care is
very limited. Efforts completed or under way
might provide a pathway for further
development of quality measures’’.
*MedPac 2010 report
Health Reform Enacted
• After January 1, 2011, a hospice physician or nurse
practitioner must have a face-to-face encounter with
each hospice patient to determine continued eligibility
prior to the 180th-day recertification & thereafter.
• Attestation of visit
• HHS medical review of certain patients in hospices with
high percentages of long-stay patients.
Changes to Hospice Certification and Billing
Processes
• CR #6540 (re-issued on 12/23/09) includes the
requirements for the attending physician or Medical
Director to provide written explanation of basis of
terminality when certifying the terminal illness. But
if certification is verbal, this narrative is not required
until the first billing.
• CR # 6440 CMS seeking line-item services data, but
clarifies rounding up 0 to 14 minutes=1 unit and
allowing social work phone calls to be included in the
data.
ONE YEAR IN = Implementation of the New
Conditions of Participation
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42 CFR 418; Dec. 2008 and Feb. 2009
IDG [Interdisciplinary Group];
Medical Director;
Nursing Facility contracts when hospice
patient is a resident;
• Patient Rights
• Credentialing and Quality of Care
Where do the Compliance Risks Lie?
QUALITY FROM THE IDG
• RN IDG member must coordinate care and ensure
“continuous assessment” of patient and family needs
• IDG must “work together”, “provide the care” “meet
the needs” & reassess every 15 days
• Must have a “Super IDG” to set policies on day to
day care, if >1 IDG in the hospice
• IDG must document patient’s understanding,
involvement and agreement w care planning
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
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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”?
OIG White Paper on Corporate
Responsibility and Quality of Care
• Point Four=Is the Board orientation and ongoing
training inclusive of external quality and patient
safety information. Are there Board members with
expertise in these areas?
• Point Six= How are quality assessment and
improvement processes coordinated with the
compliance program of the company?
• Are quality and patient safety addressed in the
company’s risk assessment and corrective action
plans?
• Use oig.hhs.gov website to obtain this document
QAPI= Proof of Quality
• Formalized programs; strenuous work on
outcomes
• Governing Body responsibilities for oversight
• Intersection between quality, incident
reporting, risk management, compliance
program audits, staff training
DEA Laws a new Focus
• DEA has begun aggressive enforcement of
position that NF nurses are not ‘agent’ of
prescribing physicians. Pharmacies are
enforcement targets. Pain medications are not
being delivered timely to patients.
• Senator Kohl of Wisconsin held a ‘listening
session’ on this issue in late March. Hospice
patients at risk, too.
RACs come to Hospice
RAC REGION D ISSUES POSTED
• DME Services related to a Hospice terminal diagnosis
provided during a Hospice period are included in the
Hospice payment and are not paid separately.
• Services related to a Hospice terminal diagnosis
provided during a Hospice period are included in the
Hospice payment and are not paid separately.
Compliance Cases
• Kaiser Foundation Hospitals - Kaiser
Sunnyside Medical Center, Kaiser Foundation
Health Plan of the Northwest and Northwest
Permanente P.C., Physicians & Surgeons paid
$1,830,322.41 in False Claims Act liability for
services billed w/o written certifications of
terminal illness [2000-2004]. Disclosed 11/09
• Multiple on-going OIG hospice investigations
OIG 2010 Work Plan
• Hospice-Nursing Home relationships
• Physician billing and ? Double billing for
hospice patients by attending physicians and
hospices
• Trends in Hospice growth
• Part D duplicate billing- pharmaceuticals
OIG Reports for Hospice and Nursing
Facilities
• Sept. 2009 – OIG found 82 % of claims for
hospice/NF residents lacked one or more
coverage requirements; 31 % of cases provided
fewer services than the care plan called for.
• Second OIG Report was statistical and gave
the intensity and frequency of NF-based
hospice care….suggesting CMS might want to
consider implications.
Heightened Homecare Concerns
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WHO- Are you admitting to care
WHAT- Are your referral relationships
WHEN- Are you performing assessments
WHERE- Are your patients residing
WHY- Are you hiring physicians
HOW- Are you ensuring quality of care
HOW OFTEN- Are you seeing patients
Rise of 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
MEDICAID fraud enforcement is a
competitive sport
• 1/28/10--Massachusetts Medicaid Fraud
Division Recovered Record $51.6 Million,
breaking the previous high mark by $4.7
million and setting a record for the third
consecutive year.
• Two large multistate litigations on off-label
and illegal marketing and three on improper
rebate or pricing programs.
• Interviews with Jim Sheehan in New York.
MEDICAID fraud enforcement is a
competitive sport
Massachusetts Medicaid Fraud Division
Recovered Record $51.6 Million in 2009
• 2 large multistate litigations on off-label and
illegal marketing, 3 improper rebate/pricing
• “Our office takes very seriously our
responsibility to hold accountable those who
would defraud our state's Medicaid program,”
• Jim Sheehan interviews and profile
NYS OMIG Audits and Personal Care
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OMIG audits are broad and deep.
Use of statistical extrapolation
Purely a “claw back” for political reasons?
Sheehan feels that weak or poorly maintained
systems are avoidable, thus penalties are
appropriate.
• Growth and vulnerabilities in personal care.
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 a
new HHA branch; Jan 1st CHOW Freeze
Risk Management and Privacy Law
• What steps to a better risk management
assessment process do you have in place?
• What recognition of the practical requirements
of the new HIPAA laws on notice of breach of
privacy, on Business Associates, on security of
laptops/cell phones/PDAs?
• How does your compliance program account
for the privacy and security realities?
Faculty Contact Information
Deborah A. Randall, J.D.
Health Law Attorney and Consultant
Law Office of Deborah Randall
202-257-7073
[email protected]
www.deborahrandallconsulting.com