Compliance and Fraud Risks for Homecare and Hospice

1. Compliance and Fraud Risks for Homecare and Hospice 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. 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.

5. 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 DOJ- First Board meeting in Sept 2012

6. 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

7. 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

8. 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

9. 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

10. 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-cr-00079, sentenced 42 months; 10/13/11.

11. 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 million. Whistleblower from a regional consulting firm the provider had engaged.

12. United States v. Nunez, S.D. Fla., No. 11-CR-20113. 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

13. 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.

14. 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

15. 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?

16. 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 • 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

17. ... And it’s personal. • The Director of Professional Services faces up to 10 YEARS in prison.....

18. Additional Cases Initiated • US ex relLandis v. Hospice Care of Kansas,USDCt. Kansas, Case No. 06-2455-CM. Settled. • US ex relRichardson and Brown v. Golden Gate Ancillary LLC dbaAseraCare Hospice, 09-CV-00627-AKK, 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

19. 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

20. 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

21. Medical Director Kickbacks • United States v. Goldman, E.D. Pa., No. 12-cr-305-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.

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

23. 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.

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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.

30. 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

31. 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

32. 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.”

33. 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

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