AHLA Long Term Care and the Law – Homecare and Hospice Fraud

1. AHLA Long Term Care and the Law – Homecare and Hospice Fraud Deborah Randall, Esq. www.deborahrandallconsulting.com law@deborahrandallconsulting.com

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. United States v. Rahman, 11-CR-20540, ED MI, plea filed 1/5/12. • Settlement and CIA, Maxim Healthcare, 9/11/11. [$150 million] • United States v. Gabriel,IL indictment 6/29/11, alleging $20 million in home health fraud. • United States v. Kirt, M.D. La., No. 3:10-cr-00079, sentenced 42 months; 10/13/11.

9. United States v. Mussa, D. Minn., No. CR-11-266SRN, 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 milliion. Whistleblower from a regional consulting firm the provider had engaged.

10. United States v. Nunez, S.D. Fla., No. 11-CR-20113, plea agreements 9/27/11. Fifteen of 21 defendants had plead; kickbacks to patients and referral sources.

11. Homecare Investigations • Congressional Investigations --”Gaming” the system by Therapy Level Targeting, SR 112-24, S. Comm. on Finance • Security and Exchange Investigations • On-going federal investigations; HEAT • State fraud investigations • Geographic focus

12. 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?

13. Hospice Cases • United States v. Kolodesh, E.D. Pa., No. 11-CR-464, indictment unsealed 10/12/11. Allegations of kickbacks, ineligible patients, cost report irregularities, falsification of charts

14. Two New Cases Initiated • US ex rel Landis v. Hospice Care of Kansas,US DCt. Kansas, Case No. 06-2455-CM. Motion to dismiss denied 12/7/2010. • US ex rel Richardson and Brown v. Golden Gate Ancillary LLC dbaAseraCare Hospice, 09-CV-00627-AKK, N.D.Ala, filed [unsealed] 12/6/11.

15. Hospice Investigations • Significant continuing issues • Geographic focus • Marketing

16. 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.

17. 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

18. 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

19. 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

20. 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

21. Tee-ing Up New 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 • <3 months prior, < 30 days after admission • No HHA employee may do the encounter OR give information to the certifying physician – Attestation statement • Certifications and signature of physician dated by the physician = no date stamping

22. 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…..so no urban based patient can use telehealth for a F2F. Senator Thune has introduced a Bill to expand on the locations.

23. 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

24. 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

25. 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.”

26. KickBack and Homecare • 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

27. QUESTIONS? Deborah A. Randall, Esq. law@deborahrandallconsulting.com www.deborahrandallconsulting.com 202-257-7073