Home Health Law and Compliance

The U.S. Department of Health and Human Services, Office of Inspector General (“OIG”), has made pursuing fraud in the personal care services (“PCS”) sector a top priority, including making it a focus of their FY2017 workplan.

Last week, OIG released a report, Medicaid Fraud Control Units Fiscal Year 2016 Annual Report,  which set forth the number and type of investigations and prosecutions conducted nationwide by the Medicaid Fraud Control Units (“MFCUs”) during FY 2016.  Overall, the MFCUs reported 1,564 convictions, over one-third of which involved PCS attendants; fraud cases accounted for 74 percent of the 1,564 convictions.[1]

Looking at data released by HHS, PCS was the largest category of convictions reported in FY 2016. Thirty-five percent (552 of 1,564) of the reported convictions were of PCS attendants, representatives of PCS agencies, or other home care aides. Of these 552 reported convictions, 500 involved provider fraud and 52 involved patient abuse or neglect.[2] Of the reported fraud convictions, PCS attendants accounted for the greatest number of fraud convictions (464 of 1,160).[3]

The emphasis on PCS is likely to not only continue, but increase in 2017.  Notably, recent high-profile investigations and prosecutions this year include the following cases:

  • Six Missouri home health and personal care aides and patients were charged on April 4, 2017, with making false statements to Medicaid. The aides and patients allegedly falsified documentation that claimed the aides were providing services to the patients at particular times when, in fact, no such services occurred. According to the indictments in the case, one defendant patient was vacationing in New Orleans and on a cruise during the times she supposedly received services. One aide was found gambling at a casino during the same time period she claimed to be providing services. The investigation was led by the Kansas City, Missouri office of the OIG and the MFCU of the Missouri Attorney General’s Office.
  • On March 30, 2017, Godwin Oriakhi, the owner and operator of five Texas-based home health agencies pleaded guilty to conspiring to defraud Medicare and Texas Medicaid programs. Oriakhi, along with his co-conspirators, pleaded to defrauding the state and federal governments of over $17 million, the largest home services-based (including both home health services and PCS) fraud in Texas history. Oriakhi admitted that he and several co-conspirators, including his daughter, paid illegal kickbacks to physicians and patient recruiters in exchange for patient referrals. The defendants also paid patients to receive services from Oriakhi’s agencies and in exchange for the use of the patients’ Medicare and Medicaid identification numbers to bill for home health and PCS services.

Given that HHS is securing large monetary recoveries in this space, there is clearly an incentive for HHS to focus on the PCS sector. Indeed, the recent HHS report notes that MFCUs recovered an average of over $7 for every dollar spent towards investigation and prosecution of healthcare fraud cases, including PCS cases, in FY2016.

EBG has been watching this trend and will update this blog with the status of OIG’s and DOJ’s continued focus on home health and PCS prosecutions. For more information on OIG’s investigations into PCS aides, please see our Law360 article “HHS Has Its Eye on Medicaid Personal Care Service.”

Endnotes:

[1] https://oig.hhs.gov/oei/reports/oei-09-17-00210.asp (hereinafter “Report”)

[2] Report at 6.

[3] Report at 7.

In January 2015, CMS announced that it was considering developing voluntary clinical templates to help physicians adequately document their encounters with Medicare patients who receive home health services.[1] CMS initially proposed a sample paper template progress note and suggested clinical template elements for an electronic progress note. CMS hosted three Special Open Door Forums to solicit feedback on the proposed templates from physicians, home health agencies, and other interested stakeholders to provide feedback on the proposed templates.

On August 12, 2015, CMS announced that a suggested clinical template had been submitted to the Office of Management and Budget (OMB) for review.[2] Although CMS had initially proposed the creation of separate paper and electronic templates, the proposed progress note template that was submitted to OMB combines the information into one template.

The proposed template is designed as a paper progress note that includes a list of clinical elements that will allow electronic health record vendors to create prompts to assist physicians when documenting eligibility and the face-to-face encounter. The template is intended to help physicians and allowed non-physician practitioners capture necessary information, to increase compliance with Medicare requirements, and to reduce the possibility that home health claims will be denied for failure to meet Medicare requirements. CMS estimates that it will take approximately 10 minutes to complete the electronic template and approximately 15 minutes to complete the paper template.

Use of the proposed template will be completely voluntary. Physicians and home health agencies must still ensure that the patient’s medical record supports certification of the home health benefit, as the Progress Note Guidance specifies that “completion of this Progress Note alone will not substantiate eligibility for the Medicare Home Health Benefit.” However, the elements included in the proposed template do provide an indication of what CMS may consider adequate documentation of the face-to-face encounter and of a patient’s eligibility for home health services.

Public comments on the proposed template are due by October 13, 2015 and may be submitted electronically via http://www.regulations.gov, or by mail.

[1] Home Health Medical Review and Home Health Electronic Clinical Template.

[2] 80 Fed. Reg. 48,321 (Aug. 12, 2015).

On March 3, 2015, the New Jersey State Board of Nursing (“Board”) issued a comprehensive set of proposed amendments, repeals and new rules pertaining to Delegation and Certification; Homemaker-Home Health Aides.  The changes broaden the authority of registered professional nurses (“RNs”) and permit RNs to train, and then delegate tasks to licensed practical nurses (“LPNs”), certified home health aides (“CHHAs”) and other assistive persons (collectively “assistants”).  This certainly seems like a positive step for the Home Health industry and its patients.  Nurses will be able to serve a broader patient base by maximizing the talents of more caregivers who are, perhaps, being under-utilized in the current model.

Currently New Jersey limits those tasks which an RN can delegate.  Those restrictions were understandable.  Delegation of nursing duties is a delicate and complex process.  An RN must fully assess and understand a patient’s needs and the potential for complication before feeling secure enough to assign another responsibility for that care.  The law change seems to embrace the fact that RNs have always had this key competency, the art of assessment and delegation, but were lacking the necessary assurances that their assistants were able to accept higher levels of responsibility, or that their license would be protected if something were to go wrong. Thus, the new law tightens the screening and training processes employed by HHAs to ensure that the assistants are “equal to the task” of accepting delegation.

It would certainly seem that New Jersey has made changes to benefit the Home Health Industry’s clients.  Among those benefits:

  • Safe and efficient care is delivered with highly skilled RNs able to devote significant time and attention to those patients in need of specialized care;
  • Duplication of services is minimized;
  • More care givers are empowered and more patients treated;
  • A “team” is established to effectuate goals and problem-solve;
  • Care is administered in a more efficient and cost-effective manner.

As with any changes, however, we have to be on the lookout for unintended consequences.  There are legal and ethical consequences to delegation.  Those nurses who master the art of delegation are still responsible for the care rendered and supervision is key.  The RNs must be certain they are delegating to people who are properly trained, understanding of their role, and capable of administering safe nursing care.  The delegates must be comfortable with this increased reliance on their skills.  Any hiccup in the link between the delegator and the delegate could create patient safety issues.  Thus, if any other states are inclined to follow New Jersey’s lead, attention not only to the benefits of delegation, but also to the attendant training and supervision requirements is essential for success.

In the most recent updates to the Medicare Home Health Prospective Payment System,[1] CMS made significant changes to the face-to-face encounter documentation requirements by eliminating the physician narrative requirement for most home health services for care episodes beginning on or after January 1, 2015.[2] In making this change, CMS stated that the medical records of the certifying physician or the acute/post-acute care facility (if a patient in that setting was directly admitted to home health) must contain sufficient documentation to support the physician’s certification of patient eligibility for home health services.

Although the changes to the face-to-face encounter documentation were intended to eliminate the burden of the physician narrative requirement, home health providers have continued to assert that the new documentation requirements are equally burdensome and are too vague for providers to know what constitutes “sufficient” documentation to support a patient’s eligibility for home health services.

Earlier this week, CMS announced that it is considering developing voluntary clinical templates to help physicians adequately document their encounters with Medicare patients.[3] CMS has proposed a sample paper template progress note as well as suggested electronic clinical template elements for a progress note. The list of suggested elements for an electronic clinical template is intended to allow electronic health record vendors to create prompts to assist physicians when documenting the home health face-to-face encounter for Medicare. Once completed, the resulting paper or electronic progress note or clinic note would be incorporated into and become part of the physician’s medical record.

The sample paper and electronic templates provide some indication of what CMS may consider adequate physician documentation of a patient’s eligibility for home health services. Beginning in February, CMS is planning to host a series of Special Open Door Forums to provide opportunities for physicians, home health agencies, and other interested stakeholders to provide feedback on the proposed templates. CMS is also currently accepting public comments on the voluntary clinical templates via email at HomeHealthTemplate@cms.hhs.gov. We encourage home health agencies, physicians and other stakeholders to participate in the Special Open Door Forums and to email your comments to CMS.

In response to multiple requests, the Centers for Medicare and Medicaid Services (“CMS“) have extended the deadline for comments on the proposed changes to the home health conditions of participation (“CoPs“).  Home health providers and other interested stakeholders now have until 5:00 p.m. EST on January 7, 2015 to submit comments to CMS.

The proposed changes to the CoPs were published on October 9, 2014[1] and represent the most significant changes to the home health CoPs in seventeen years.  According to CMS, the new CoPs are intended to better reflect modern home health practice by acknowledging the interdisciplinary view of patient care and allowing home health agencies greater flexibility in meeting quality care standards.  The proposed changes include:

  • Enhanced and expanded patient rights requirements;
  • Changes to plan of care requirements and the process for transfer and discharge of patients;
  • New requirements for the development of Quality Assessment and Performance Improvement (“QAPI“) programs; and
  • New requirements for infection prevention and control.

The 2013 Home Health Prospective Payment System final rule authorized CMS to impose intermediate sanctions on home health agencies that are found to be out of compliance with the CoPs.[2]  In addition to terminating a home health agency’s provider agreement, CMS may now impose alternative sanctions including, civil monetary penalties, suspension of payments for all new admissions, temporary management of the home health agency, directed plans of correction, and directed in-service training.[3]  In light of these potential sanctions, we urge home health agencies to closely review the proposed changes to the CoPs and consider how your organization will comply with the new requirements.  We also encourage home health agencies to respond to the various aspects of the proposed rule that CMS has specifically asked for comments on.

 


[1] 79 Fed. Reg. 61,164.

[2] 77 Fed. Reg. 67,068.

[3] 42 C.F.R. § 488.820.

Our colleaguesEmily E. Bajcsi, Clifford E. Barnes, Marshall E. Jackson Jr., and Serra J. Schlanger recently published a client alert on legislative and regulatory efforts impacting the hospice and home health industries:

  • President Obama signed the Improving Medicare Post-Acute Care Transformation Act of 2014 (“the IMPACT Act”) into law;
  • The Centers for Medicare and Medicaid (“CMS”) published the Medicare Home Health Prospective Payment System final rule for calendar year 2015 (“Final Rule”); and
  • CMS published proposed changes to the home health conditions of participation and are accepting comments through December 8, 2014.

Each of these announcements has the potential to result in substantial changes to the hospice and home health industries.  For the full client alert, please click here.

 

The 2014 outbreak of the Ebola Virus Disease (“Ebola“) is the largest in history and continues to affect multiple countries in West Africa. Although reports of new Ebola cases in the U.S. – potential or confirmed – have slowed down in recent weeks, the Centers for Disease Control and Prevention (“CDC“) and its various domestic and international partners continue their efforts to prevent further transmission of Ebola in the U.S. as well as abroad. Earlier this week, in fact, the CDC released two new pieces of guidance regarding treatment of Ebola that will be of particular interest to health care providers.

The first new CDC guidance is an official list of Ebola Treatment Centers. The current list includes 35 U.S. hospitals located in twelve states plus the District of Columbia. The CDC plans to update this list on a weekly basis as additional U.S. hospitals work with state and local health authorities and the CDC to assess their infrastructures and operational readiness to receive and provide comprehensive care to persons diagnosed with Ebola. As the CDC states in its Interim Guidance for Preparing Ebola Treatment Centers, the decision to designate a facility as an Ebola Treatment Center results from collaborative efforts between health authorities, the CDC, and hospital administration, as well as results from a CDC site visit conducted by an interdisciplinary team of experts.

The CDC also released new Interim Guidance for U.S. Hospital Preparedness for Patients with Possible or Confirmed Ebola Virus Disease: A Framework for a Tiered Approach. The CDC has developed this guidance to help state and local health departments, acute care hospitals, and other health care settings where emergency care is provided, develop appropriate preparedness plans for patients with possible or confirmed Ebola infection. The CDC developed this guidance as a means for tying together other, previously released guidance specific to Frontline Health Care Facilities (acute care facilities equipped for emergency care, not including primary care offices and other non-emergency ambulatory care facilities), Ebola Assessment Hospitals (facilities prepared to receive and isolate a patient with possible Ebola infection and to care for such patient until a diagnosis of Ebola can be confirmed or ruled out and until discharge or transfer is completed), and Ebola Treatment Centers (facilities that plan to care for and manage a patient with confirmed Ebola infection for the duration of the patient’s illness).

This latest CDC guidance is yet another reminder, even before the current Ebola epidemic is brought under control globally, that health systems worldwide must continue efforts to detect infectious disease outbreaks before they rise to crisis levels. As Dr. Thomas Frieden, Director of the CDC, recently told the Associated Press, “Ebola is a powerful reminder that a health threat anywhere can affect us.” Dr. Frieden stresses the ongoing importance, system wide, of addressing “weak links and blind spots around the world” that can lead with little warning to infectious disease outbreaks of Ebola-like proportions. Renewed global focus on these efforts has come in the form of a $600 million request from the Obama Administration for the CDC to implement its Global Health Security Agenda, through which CDC would work with an international coalition to improve disease detection in high-risk countries and guard against future infectious disease contagion.

WHEN: November 17, 2014

TIME:    2:00pm – 3:30pm EST

To register for this webinar, please click here.

Please join us for a complimentary webinar addressing the professional and business challenges encountered by health care providers dealing with Ebola and other infectious diseases. This webinar will offer a clinical overview as well as a review of the guidelines which offer protocols for addressing concerns over Ebola and similar diseases, the health regulatory and risk management issues providers might consider in developing a response strategy, and the resulting labor and employment considerations facing health care employers. A question and answer period will follow the program.

Topics will include:

  • Clinical Overview and Emergency Management Issues
  • Health Regulatory Considerations for Providers
  • Risk Management Concerns
  • Employment Issues Confronting the Health Care Industry

Speakers:

  • Bruno Petinaux, M.D. – Associate Professor, Co-Chief of the Emergency Management Section, Department of Emergency Medicine, George Washington University Medical Faculty Associates
  • George B. Breen – Member, Epstein Becker Green, Chair, Health Care and Life Sciences Practice Steering Committee
  • Frank C. Morris, Jr. – Member, Epstein Becker Green, Employment, Labor and Workforce Management Practice
  • Amy F. Lerman – Associate, Epstein Becker Green, Health Care and Life Sciences Practice

To register for this webinar, please click here.

If you have questions regarding this event, please contact Whitney Krebs at (202) 861-0900, or wkrebs@ebglaw.com.

Epstein Becker Green is pleased to announce that Valerie Butera, an accomplished Occupational Safety & Health (OSHA) lawyer, has joined as a Member of the Firm based in the firm’s Washington, D.C., office.  Valerie is OSHA 30 certified and has substantial training and experience in process safety management (PSM). Valerie represents clients from numerous industries, including health care and life sciences and focuses on OSHA and other workplace safety and health issues.   For more information, click here.

 

In response to the ongoing threat of the Ebola Virus Disease (“EVD” or “Ebola”) and the increased risk of individuals traveling from the affected countries to the United States, The Joint Commission recently launched an Ebola Preparedness Resources portal on its website.  The portal contains information addressing various safety actions for health care providers to consider, such as ensuring that all staff and clinicians who may come in contact with Ebola patients are educated and trained on Ebola guidance, re-evaluating infection control plans to ensure proper guidelines and requirements, and reviewing emergency operations plans.  While stressing that The Centers for Disease Control and Prevention remains the primary source of information regarding Ebola, The Joint Commission has provided these resources in response to providers’ expectations of guidance, and also has seized the opportunity to stress to its accredited providers the importance of having adequate infection control procedures in place, a condition required of all Joint Commission accredited facilities.

Amid the uncertainty and threat of Ebola there has emerged a renewed focus by hospitals, as well as other types of health care providers, on thinking about the best ways to handle infectious disease cases safely.  Using the momentum created by the current Ebola crisis, providers should also look to the variety of Joint Commission Standards for Managing Ebola Patients to help safely and effectively manage infectious Ebola patients if any cases present themselves.