Justice Department Enforcement Efforts Continue to Focus on Home Health02.22.16
When trying to discern the government’s motives in choosing where to focus its efforts to fight healthcare fraud, it is a reasonably safe bet that the government is following the money. Indeed, healthcare enforcement tends to focus on areas where significant amounts of Medicare dollars are being spent and where the rate of expenditure is increasing rapidly.
In 2013, as well as in the four prior years, the Medicare program spent more than $18 billion on home healthcare services. In contrast, in 2001, less than ten years earlier, Medicare spent only $9.1 billion on those services. The trend line for these increasing expenditures is mimicked by both the increasing number of beneficiaries receiving home healthcare services and the increasing number of home health episodes. Given the dollars in play and the increasing utilization statistics, the government’s enforcement interest, as well as the interest of qui tam relators and their counsel, in cases related to home health is not surprising.
In light of the government’s enforcement interest, the prudent home health provider should be eager to take steps to avoid scrutiny by the government and, in the event an investigation does occur, to minimize its impact. So, what should a home health provider do?
The single most important step for any home health provider in the current enforcement environment is to ensure that it has a well-designed, fully implemented and adequately staffed and funded compliance program. The effectiveness of such a program is evaluated using the seven elements of an effective compliance program set out in the U.S. Sentencing Guidelines for the Sentencing of Organizations. A review and in-depth treatment of the seven elements is beyond the scope of this article. The U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG), however, has offered five practical tips for creating a culture of compliance: (1) Make your compliance plan a priority now; (2) Know your fraud and abuse risk areas; (3) Manage your financial relationships; (4) Just because your competitor is doing something doesn’t mean you can or should; and (5) When in doubt, ask for help.
While each of these tips is simple, practical and valuable, the second one - know your fraud and abuse risk areas - stands out. It does so because understanding the risk areas in the home health segment is critical to preventing fraud and to avoiding government enforcement. A review of recent enforcement actions reveals the following risk areas:
- Physician Referrals: Recent civil and criminal enforcement activity has increasingly addressed physician referrals. Several criminal cases have focused on conduct that violated the Anti-Kickback Statute where physicians, sometimes in the role of medical directors, received unlawful compensation when referring patients to home health agencies.
- Patient Certifications: In the civil enforcement arena, at least one False Claims Act case recently targeted a home health agency’s failure to ensure that an independent physician had “face-to-face” encounters in order to assess each patient’s eligibility for the benefit prior to billing for home health services. The case settled in 2015 for $5.63 million. The “face-to-face” requirement has been in place since January 1, 2011. Significantly, oversight of the “face-to-face” encounter requirement has been included in recent OIG Work Plans.
- Patient Status and Medical Necessity of Services: Several large civil False Claims Act settlements have involved allegations that home health providers billed for patients who were either not homebound or who received services that were unnecessary. The government and whistleblowers continue to bring actions in cases where agencies put substantial pressure on their employees to boost the patient census and/or seek to push for excess care and/or unnecessary treatment for otherwise eligible individuals.
- Falsification of Outcome and Assessment Information Set (OASIS) Data: Several recent enforcement matters have included allegations that agencies falsified OASIS data in order overstate the severity of patient conditions to justify additional unnecessary treatment and to obtain higher reimbursements.
In each of these risk areas home health providers have the ability to reduce the likelihood of enforcement scrutiny though proper training and monitoring of employees and the establishment and utilization of clear policies and procedures. Home health providers are encouraged to test their compliance in these areas through a regular compliance auditing process so that, should a problem be identified, it can be addressed prior to government action or the filing of a qui tam suit. Where problems are found, providers are reminded that the Affordable Care Act now imposes a 60-day report and return requirement on all Medicare and Medicaid overpayments. Failure to respond adequately to an overpayment can result in independent civil liability under the False Claims Act.
While the environment surrounding home health contains substantial fraud and abuse risk and an increasing threat of government enforcement, diligence in compliance efforts can often allow a provider to identify and remedy non-compliant behavior or practices before an enforcement action is triggered. More than ever, every provider should focus on proactive steps designed to prevent misconduct.