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1 Compliance Immersion Seminar: Home Health and Hospice Health Care Compliance Association April 27, 2003 Deborah Randall, Esq. Arent Fox Kintner Plotkin.

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Presentation on theme: "1 Compliance Immersion Seminar: Home Health and Hospice Health Care Compliance Association April 27, 2003 Deborah Randall, Esq. Arent Fox Kintner Plotkin."— Presentation transcript:

1 1 Compliance Immersion Seminar: Home Health and Hospice Health Care Compliance Association April 27, 2003 Deborah Randall, Esq. Arent Fox Kintner Plotkin & Kahn Washington, D.C. 202-857-6341 (o) 202-857-6395 (fax) Content developed with the assistance of Connie Raffa, Esq. 2003© Arent Fox Kintner Plotkin & Kahn, Washington, DC.

2 2 Why Develop An Internal Compliance Program? Why should a home health agency or hospice be concerned with developing an internal compliance program that meets federal sentencing guidelines?

3 3 Preventative Medicine Implement procedures and systems to ensure compliance with and avert violations of federal, state, and local laws regulating hospice providers

4 4 Insurance Policy in the Event the Agency is Investigated or Prosecuted Persuade enforcement authorities to rely on less draconian remedies than criminal prosecution and/or exclusion from government programs. Mitigate corporate penalties otherwise mandated under the Federal Sentencing Guidelines.

5 5 Commercial Advantage Positions the company positively for acquisition, merger, networking, affiliation, managed care contracts, and relations with physicians, hospitals, and consumers.

6 6 Government Agencies Involved with Compliance l Office of the Inspector General (OIG) l Federal Bureau of Investigation (FBI) l State Medicaid Fraud Control Units l Fiscal Intermediaries (FI’s) —Medicare Program Integrity Units: Compliance Audits, Fiscal Audits l External Fraud Reviewers l State Survey and Certification Agencies l Office of Civil Rights (HIPAA)

7 7 A Very Broad Risk of Liability and Sanctions Exists for Health Providers

8 8 A Provider Must Know the Law l There are different types of laws or statutes. l Six laws are particularly important to health care providers. l Qui Tam lawsuit = whistleblower lawsuit

9 9 False Claims Criminal –May result in monetary penalties –May result in jail sentence Civil –Authorizes U.S. to recover in a civil action monetary penalties and multiple damages against persons who knowingly submit false or fraudulent claims or false statements made in support of claims against the U.S.

10 10 False Claims –False = Intentional or Reckless Disregard for whether true/accurate or Intentional Ignorance False Claims in Medicare or State Health Programs Per Service, per episode and cost reports are “claims”

11 11 Mail or Wire Fraud l Electronic Billing Triggers l Cost Reports and Claims l Fraudulent Back-up Documentation Mailed to Payors

12 12 False Statements l Making an untrue statement l Nurses alter notes

13 13 Concealing or Failing to Disclose Overpayments l Knowingly concealing or failing to disclose occurrence of event affecting right to payment l Proposed regulations for rebating money to the government

14 14 Medicare-Medicaid Anti-Kickback Statute l Remuneration —In cash or in kind —Direct or indirect l Referring, arranging, or recommending l Giver and receiver are liable

15 15 Other Statutes Conspiracy to Defraud the United States Theft, embezzlement, conversion of public monies Theft or bribery concerning programs receiving federal funds

16 16 Other Statutes Obstruction –of agency proceedings –of criminal investigations –of a federal audit Money laundering Racketeer Influenced and Corrupt Organizations Act (RICO)

17 17 Quasi-Criminal l Forfeitures l Injunctions and asset freezes

18 18 State Statutes l Theft, larceny, false instruments l Medicaid false claims l Health care false claims

19 19 Cases Against Providers

20 20 OIG Reports and Advisory Opinions Available on the OIG Website:

21 21 Administrative Remedies Civil Money Penalties –Authorizes Inspector General to impose civil money penalties, assessment, and exclusions in administrative proceeding for persons who present claims for items or services for payment under Medicare or a State health care program that they know or should know were not provided as claim or that were false or fraudulent. –Standard is “should know”, defined to be congruent with False Claims Act standard.

22 22 Administrative Remedies Civil Monetary Penalties –Penalties of up to $10,000 for each item or service falsely claimed, or in case of cost report, any entry in the cost report, books of account, or other documents supporting the claim. –Assessment up to three times amount claimed. –Exclusion from Medicare and state health care programs.

23 23 Administrative Remedies Exclusions –Mandatory –Permissive exclusions –Exclusion results in notice to state health care agencies, who must exclude for at least the same amount of time, and to state licensing bodies with requests to take appropriate action. –Exclusion from Medicare and state health care programs has effect of excluding the individual or entity from all federal procurement and non- procurement programs.

24 24 Administrative Remedies CMS may refuse to enter, refuse to renew, or terminate a provider agreement if agency fails to comply with the agreement, with the statue or regulations, or to meet substantially the requirements to be a provider. Suspension of payments State administrative sanctions

25 25 Essentials of Compliance Planning for Hospices and Home Health Agencies When? –Before a plan is imposed by the government, with harder terms –After a vote by Board of Directors/Principals What? –Essential Elements of an Effective Compliance Plan

26 26 Essential Elements of an Effective Compliance Plan l The degree of formality of the compliance plan depends on the size and complexity of the organization. l A compliance plan should include a statement of corporate philosophy, a code of conduct and an employee manual.

27 27 Essential Elements of an Effective Compliance Plan Compliance Standards and Procedures that are reasonably capable of reducing the prospect of criminal conduct. Steps to Prevent and Detect Offenses which may occur in an organization engaged in this particular type of business.

28 28 Essential Elements of an Effective Compliance Plan Compliance Oversight with the standards and procedures assigned to a specific individual within the high-level personnel of the organization. –Essential qualities: effective, compelling, autonomous (reports to Board of Directors), unimpeachable integrity, holds confidence of senior management, respected by peers, approachable.

29 29 Essential Elements of an Effective Compliance Plan Substantial Discretionary Authority Is Not Given to individuals whom the organization knew, or should have known through the exercise of due diligence, had a propensity to engage in illegal activities. –Background and criminal records checks within the state law limits.

30 30 Essential Elements of an Effective Compliance Plan lEffective Communication of Standards -Through understandable documents -Thorough, regular and repeated training

31 31 Essential Elements of an Effective Compliance Plan lMonitoring to Achieve Compliance With Standards – OIG guidelines call for baseline audits by trained and knowledgeable counsel and consultants; then, – Internal monitoring and auditing, penalty free reporting and confidential reporting mechanism (hotline).

32 32 Essential Elements of an Effective Compliance Plan Effective Enforcement, all the way up the ladder Responses That Are Reasonable, appropriate, prompt and effective to remedy problems, including modifying the compliance plan which must be a “living document.” Feedback is essential.

33 33 How? Decide if outside counsel reviews or does “checkup” Role of clinical records specialists Resolution by Board of Directors or Principals

34 34 Scope of the Review Corporate organization, structure Corporate related organizations, e.g., pharmacy/infusion, durable medical equipment suppliers, management companies, holding companies, subsidiaries, etc. Contracts with nursing homes, independent contractors, managed care organizations, physicians, referral sources, vendors Position descriptions

35 35 Scope of the Review Policy and procedure manuals with particular focus on trouble areas in home health or hospice Employee manuals Orientation and training materials Financial statements Cost reports

36 36 Scope of the Review Internal and external audit reports Survey and certification reviews Outside survey and accreditation reports Hospice election form, informed consent and DNR materials

37 37 In Person Review l Interviews with employees l Systems/operations review l Can be “spot-check review” after compliance program is operative

38 38 Home Health Hot Spots Failure to provide quality care Reckless disregard of consolidated billing concerns Up-coding Reckless disregard/ignorance of OASIS/documentation disconnects Intentional manipulation of therapy visits or visit estimates

39 39 Home Health Hot Spots Unsigned, unsupported orders Services billed without sufficient orders Under-serving patients, particularly aide issues Patient inducement concerns Relationships with referral sources Uncertified branches

40 40 Hospice Risk Areas Uninformed consent to elect the Medicare Hospice benefit Discriminatory admission Admitting patients to hospice care who are not terminally ill Arrangement with another health care provider who a hospice knows is submitting claims for services already covered by the Medicare Hospice Benefit

41 41 Hospice Risk Areas Under-utilization Falsified medical records or plans of care Untimely and/or forged physician certifications on plans of care Inadequate or incomplete services rendered by the Interdisciplinary Group Insufficient oversight of patients receiving more than six consecutive months of hospice care

42 42 Hospice Risk Areas Hospice incentives to actual or potential referral sources (e.g., physicians, nursing homes, hospitals, patients, etc.) that may violate the anti- kickback statute or other similar Federal or State statute or regulation, including improper arrangements with nursing homes Overlap in the services that a nursing home provides, which results in insufficient care provided by a hospice to a nursing home resident

43 43 Hospice Risk Areas Improper relinquishment of core services and professional management responsibilities to nursing homes, volunteers, and privately-paid professionals Providing hospice services in a nursing home before a written agreement has been finalized, if required Billing for a higher level of services than was necessary

44 44 Hospice Risk Areas Knowingly billing for inadequate or substandard care Inadequate justification in the medical record when a patient revokes the Medicare Hospice Benefit Billing for hospice care provided by unqualified or unlicensed clinical personnel

45 45 Hospice Risk Areas False dating of amendments to medical records High-pressure marketing of hospice care to ineligible beneficiaries Improper patient solicitation activities, such as “patient charting” Inadequate management and oversight of subcontracted services, which results in improper billing

46 46 Hospice Risk Areas Sales commissions based upon length of stay in hospice Deficient coordination of volunteers Improper indication of the location where hospice services were delivered Failure to comply with applicable requirements for verbal orders for hospice services

47 47 Hospice Risk Areas Non-response to late hospice referrals by physicians Knowing misuse of provider certification numbers, which results in improper billing Failure to adhere to hospice licensing requirements and Medicare conditions of participation Knowing failure to return overpayments made by Federal health care programs

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