LegalEase: Fraud alert issued for home health providers
Fraud alert issued for home health providers
By Elizabeth E. Hogue, Esq.
Burtonsville, MD
Home health agency staff may benefit from a reminder that the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services issued a Special Fraud Alert that specifically addresses the issue of fraud in the home health industry. (Go to www.oig.hhs.gov and search for Special Fraud Alert.) That alert specifically addresses false or fraudulent claims relating to the provision of home health services, claims for home health visits that were never made and for visits to ineligible beneficiaries, fraud in annual cost report claims, paying or receiving kickbacks in exchange for Medicare or Medicaid referrals, and marketing uncovered or unnecessary home care services to beneficiaries. A number of these areas are especially problematic for home care providers:
Claims for visits to ineligible beneficiaries
The OIG reminds home care agencies that Medicare will pay for home health services when beneficiaries’ physicians certify that they are:
- homebound, i.e., confined to the home except for infrequent or short absences or trips for medical care;
- in need of one or more of the following qualifying services: physical therapy, speech-language pathology, or intermittent skilled nursing services.
Agency staff members, however, are all too familiar with situations in which physicians certify patients for Medicare home care services who do not meet these criteria. One of the key reasons for inappropriate certifications is that physicians do not understand the requirements for eligibility for Medicare home care services described. In most instances, physicians have not been initiated into the specifics of eligibility for Medicare home care services. In addition, agency staff members often interpret and apply these criteria in different ways, which tends to further confuse physicians about who can be certified. Finally, physicians often are subjected and vulnerable to pleas from family members to certify or recertify patients because the caregivers feel an acute need for assistance regardless of the eligibility requirements.
The OIG also makes it clear, however, that both physicians and home care staff have a responsibility to resist the provision of home care services to patients who are ineligible. Specifically, the basis on which any claim is submitted is that the services provided were necessary and appropriate. When services are provided to ineligible patients, the services fail to meet these criteria because they were not necessary and/or appropriate. Thus, claims submitted for patients who do not meet the criteria for services are false claims.
Both physicians and agency staff members have a responsibility to police the provision of inappropriate or unnecessary services according to the OIG. Specifically, physicians who order unnecessary home health care services may be liable for causing false claims to be submitted by the home health agency, even though physicians do not submit the claims themselves.
Furthermore, if agency personnel believe services ordered by physicians are excessive or otherwise inappropriate, the agency cannot avoid liability for filing improper claims simply because a physician has ordered the services.
Historically, agency staff members have sometimes stated they know patients are appropriate for home health services because physicians have certified them for care. That Special Fraud Alert forces home care providers to look behind the certification to make an independent evaluation about appropriateness. Agencies have an independent obligation to make sure ineligible patients do not receive services, even if physicians certify them for home care services.
When staff identify instances of improper certifications, an appropriate course of action may be to involve the agency’s medical director. The best communication with physicians is still doctor-to-doctor. The medical director should, therefore, personally contact physicians who certify inappropriately to talk with them regarding Medicare eligibility and to explain why patients will not receive services after all.
It also may be helpful for agencies to initiate efforts to provide education for physicians regarding Medicare criteria for home health services. An ounce of prevention sometimes is worth a pound of cure, in the sense that it is far better to assist doctors to reach appropriate conclusions about eligibility for home care services than to confront them repeatedly regarding specific patients.
Kickbacks for Medicare or Medicaid referrals
This area of the Special Fraud Alert is especially problematic for hospital-based agencies because the OIG specifically indicated that providing hospitals with discharge planners, home care coordinators, or home care liaisons to induce referrals is a kickback or rebate.
The prohibition against the provision of hospital discharge planners has been clear for some time. The additional twist in the alert is that the OIG now prohibits use of home care providers or home care liaisons by agencies in hospitals as well. Hospitals are obligated to provide discharge-planning services to patients according to the Joint Commission on Accreditation of Healthcare Organizations and other applicable requirements. To the extent that home care agencies provide discharge planning services that the hospitals are obligated to provide, hospitals save money.
The OIG characterizes those savings as kickbacks or rebates if agencies that provide discharge-planning services also receive referrals of patients, and the provision of discharge planning services by agency personnel does not fall within one of the exceptions or "safe harbors."
But the OIG’s language about prohibitions on home care coordinators or liaisons in hospitals is difficult to interpret and apply.
Part of the difficulty lies in the fact that there is a genuine need for coordination of home care services between hospital discharge planners, family members, and home care staff while patients are still in the hospital after the discharge planning process is complete. That is, after the discharge planning staff have developed a discharge plan that includes home health services, it may be appropriate for home care staff to begin the process of coordination of services while the patient is still in the hospital.
The key to compliance is that the discharge planning staff must make a decision, independent of assistance from home care staff, that the patient may be appropriate for home care services even if a home health agency later determines that the patient is not appropriate for home care services after all.
Since the decision to refer patients is made by the discharge planners, the subsequent coordination or liaison work of agency staff does not supplant the work of discharge planners that hospitals are required to provide and, therefore, may not constitute a kickback or rebate.
Specifically, agency staff members should not:
1. Regularly attend discharge planning meetings for all patients being discharged to home care until a referral has been made first.
Although agencies are used to thinking of a referral as something that must come from a physician, referrals can come from a variety of sources, including physicians, discharge planners, patients, patients’ family members, etc. They may be verbal or in writing.
2. Engage in so-called "case finding."
Agency staff members should not roam hospital floors reviewing charts of patients who are going to be discharged in search of patients who may be appropriate for home health services.
The key distinction on this issue may be whether the activities of home care coordinators and liaisons involve activities that induce referrals. To the extent that the activities of agency staff members amount to no more than routine coordination that is done for many patients who are referred to the agency, it is doubtful that the agency has acted to induce referrals. But, to the extent that agency personnel become intimately involved in assisting hospital discharge planners to do their jobs, the OIG may reach a different conclusion.
The Special Fraud Alert is by no means the final word on this issue for home care providers. Agency staff members must closely monitor developments in this area to make certain their conduct does not run afoul of the law.
[A complete list of Elizabeth Hogue’s publications is available by contacting Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Phone: (301) 421-0143. Fax (301) 421-1699. E-mail: [email protected].]
Home health agency staff may benefit from a reminder that the Office of the Inspector General of the U.S. Department of Health and Human Services issued a Special Fraud Alert that specifically addresses the issue of fraud in the home health industry.
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.