Compliance Tasks: Compliance Officer at the Center in 2011Deborah A. Randall, Esq.

Health Lawyer;Telehealth Consultantwww.deborahrandallconsulting.com

Patient Protection and Affordable Care Act “ACA”

• Provider screening/enrollment requirements

• Entry into the Medicare program will not be automatic upon filing an 855 and obtaining a state license

—Providers or prior owners, those who managed Medicare providers, who left the program with unpaid Medicare Debt will likely be barred

—New providers will have to have compliance programs

Screening Regulations

• 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?

Overpayment Reporting

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 

Integrity

• 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 for both home health and hospice to ensure eligibility with Medicare standards for covered care

Greater Enforcement

• ACA provides $350 million over ten years to enhance enforcement of the fraud and abuse efforts of the governmental agencies dealing with Medicare and Medicaid

• A regulation on compliance programs will issue by Fall of 2011 – a solicitation of views was published in September 2010 and the DHHS CMS staff are working on the requirements along with federal OIG.

Face To Face Final Regulation

• HHS prefers physician seeing potential HHA patient to be the certifier of care – physician creating and signing—but has given “flexibility”

• <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

Face to Face HHA Encounter

• 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.

F2F Hospice Final Regulation

• 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

NEW HHA Therapy Requirements

• 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

The Congress and Administration

The Attorney General of the United States hails increases in penalties for health care fraud offenses, including tougher sentencing guidelines, the establishment of penalties for obstructing a fraud investigation, and expansions to the Anti-Kickback Statute and False Claims Act;

• • enhanced screening and enrollment requirements for providers, including a provision that allows the government to impose a temporary moratorium on new providers in a particular field or geographic area, and to withhold Medicaid payments where there is a credible allegation of fraud

• • increased coordination of fraud-prevention efforts, including a requirement that states terminate any provider or supplier that has been terminated by Medicare or by another state; and

• • stricter standards for certain sectors, including durable medical equipment and community mental health centers, that have historically been subject to high levels of fraud.

KICKBACKS REMAIN A THREAT IN HOMECARE

• Institutional relationships

• Liaisons

• Discharge Planners

• The patients, themselves, can be the subject of an “inducement”

• There are no monetary thresholds for a kickback

STARK LAW

• Prohibition against ownership of HHAs

• 100% adherence necessary if there is a financial relationship with a physician and you are an HHA

• II there have been errors, mandatory repayment provisions of PPACA kick in

• Voluntary disclosure protocols are “live”

• “Minimum” dollar amounts :no safe haven

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

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 latest hospice fraud case

• Too many hospice physicians?

• OIG stalking nursing facility/hospice

Quality and Fraud

• Quality in hospice not subject to uniform standards; quality in care, not 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.”

STRUCTURE

PROCESS

OUTCOMES

BUILD

MEASURE

• Compliance Plan Document• Compliance Officer• Compliance Committees•Policies and Procedures Systems in place to address compliance risk areas

• Compliance connections to governing board and management.

• Working policies and procedures• Systems identifying risk areas, errors,

Plan of Correction and monitoring

• Measures of effectiveness:• Self-reporting/Hot Lines•Frequency of audit issues recurring Exclusion lists• Deceased beneficiary billing

Building Blocks for Effective Compliance Programs—The New York State OIG views

First Self Assessment Question http://www.omig.ny.gov/data/images/stories/compliance_alerts/2010-02.pdf

MARKETING ISSUES FOR HOMECARE 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

MARKETING TACTICS

• 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

MARKETING TACTICS

• CEUs and where and how they might be given

• Physician contracted relationships in hospice

– In-patient facility physician services as opportunity to receive Pt B payments via hospice Pt A billing

– Physicians who refer getting automatic appointments as “hospice physicians” and oppty to bill and not have to collect only 80% fee schedule w uncertain collection of 20% from patient

MARKETING OR QUALITY?

• Medical Directorships

• Numbers

• Selection

• From local nursing facility MedDirs

• Accountability post COPs; “the” Medical Director needs to show supervision over all hospice physicians/ nurse practitioners

• Firm justification for HHA Medical Directors

MARKETING TO PATIENTS

• Continuous care in hospice is marketed to patients, families and personal physicians

– But designed only for infrequent periods of intensive pain and care management

– Continuous care precisely documented

• In-patient transfers from hospital to hospice in-patient unit –rather than D/C to the home

– In- patient care is for out of control pain

– Hospitals avoids losses:DRGs;death statistics

Marketing to Patients

• Free goods and services

• Home support services

• Relief from payment for pharmacy

• Aide/companion

• Ancillary supplies

• Supplements to assisted living services

• Relief from Part B co-pays to physicians

• Telehealth devices and services

• Pre-hospitalization assessments .

 

Compliance Officer’s Tasks

• Relate the PPACA Changes to Priorities and Tasks for the Agency

• Discuss all Operational Changes among the Finance, C Suite, Clinical and Billing Staff

• Identify Relationships at Risk

• Track ALL paybacks identified and keep timelines

COMPLIANCE OFFICERS TOP TASKS IN 2011

• Relate the PPACA Changes to Priorities and Tasks for the Agency

• Discuss all Operational Changes among the Finance, C Suite, Clinical and Billing Staff

• Identify Relationships at Risk

=> InstitutionalPhysiciansCross-Referral

• Closely follow the agency’s implementation of the HHA therapy measurements, plans of care and higher professional reviews

• IN THE WEEDS with PT

• Track ALL paybacks identified and keep timelines

Questions to ask relative to compliance Questions to ask relative to compliance failures:failures:

How does the provider define compliance How does the provider define compliance failures?failures?

How many, what kind and do they repeat?How many, what kind and do they repeat?

Is the plan of correction timely, relevant and Is the plan of correction timely, relevant and inclusive?inclusive?

How are compliance failures monitored?How are compliance failures monitored?

Effective?

Compliance Officer Tools

• OIG – federal and state OIGs’ website resources www.oig.hhs.gov

• California Office of Audits and Investigations [DHCS]; http://ag.ca.gov/bmfea

• OIG exclusion and GSA exclusion lists

Health Care Compliance Association (HCCA) membership and extensive website information:

www.hcca-info.org

• MAC training and updates; State ass’n courses

Articles on My Website

• www.deborahrandallconsulting.com

• “Homecare Fraud: New Compliance Concerns”, Compliance Today, October 2010

• Compliance Issues in Hospice and the Risks of Marketing in 2011”, Compliance Today, May 2011

Journal of the Health Care Compliance Association, www.hcca-info.org

Faculty Contact Info

Deborah A. Randall, J.D.Health Attorney; Telehealth Consultant

Law Office of Deborah Randall202-257-7073

law@deborahrandallconsulting.comwww.deborahrandallconsulting.com