Kusserow on Compliance: GAO enrolled fictitious applicants through the Marketplace

The U.S. Government Accountability Office (GAO) is an independent “congressional watchdog” agency that investigates federal government expenditures. The Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) provides for the establishment of health insurance exchanges, or Marketplaces, where consumers can compare and select private health insurance plans. The ACA also expands the availability of subsidized health care coverage. The Congressional Budget Office (CBO) estimates the cost of subsidies and related spending under the ACA at $28 billion for fiscal year (FY) 2015. The ACA requires verification of applicant information to determine eligibility for enrollment or subsidies. Filing a federal income tax return is a key control element, designed to ensure that premium subsidies granted at time of application are appropriate based on reported applicant earnings during the coverage year.

The GAO was asked to examine controls for application and enrollment for coverage through the federal Marketplace and, thereafter, it conducted a review to assess the enrollment controls of the federal Marketplace. On July 16, 2015, the agency reported the results of undercover testing of the Marketplace application, enrollment, and eligibility verification controls using 18 fictitious identities. The GAO submitted or attempted to submit applications through the Marketplace in several states by telephone, online, and in person. There were 18 undercover tests performed in 2014, 12 of which focused on phone or online applications. The GAO found that the Marketplace approved subsidized coverage for 11 of the 12 fictitious GAO applicants who obtained a total of about $30,000 in annual advance premium tax credits, plus eligibility for lower costs due at time of service.

For seven of the 11 successful fictitious applicants, GAO intentionally failed to submit all required verification documentation, but the Marketplace did not cancel subsidized coverage for these applicants. The agency also found errors in information reported by the Marketplace for tax filing purposes for three of its 11 fictitious enrollees, such as incorrect coverage periods and subsidy amounts. The GAO shared details of its observations with CMS during the course of its testing, to seek agency responses to the issues raised. Other observations of the Marketplace included:

  • that all inconsistencies between applicant information submitted and information available from verification sources were not recorded;
  • unresolved inconsistencies based on fictitious documentation that GAO submitted;
  • failure to terminate coverage for several types of inconsistencies, including social security number data or incarceration status; and
  • automatically reenrolled coverage for all 11 fictitious enrollees for 2015.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2015 Strategic Management Services, LLC. Published with permission.

 

Kusserow on Compliance: OIG reports on background checking by home health agencies

In response to a congressional request, the HHS Office of Inspector General (OIG) conducted a review to analyze the extent to which Home Health Agencies (HHAs) employed individuals with criminal convictions and to explore whether these convictions should have—according to State requirements—disqualified them from HHA employment. HHAs provide care—usually unsupervised—to patients in their homes and ensuring that their employees undergo a minimum level of screening would help protect the safety of Medicare beneficiaries. Home health programs have been a high priority for Medicare; Medicaid is intended to provide an alternative to institutional care for people with severe disabilities and it is intended that the needed services be delivered in a beneficiary’s home. This industry sector accounts for more than $20 billion paid by Medicare on behalf of 3.4 million beneficiaries with another estimated $15 billion in outlays paid by Medicaid programs.

This is a sensitive issue area as no one wants someone with a violent criminal history or one of committing thefts to be sent to care for beneficiaries in their home. To underscore, government concern with HHAs, including those concerns expressed by the Department of Justice (DOJ) and OIG, have found considerable evidence to recognize that home health is among the most vulnerable healthcare programs to fraud and abuse. The Government Accountability Office (GAO) recently reported 40 percent of all fraud convictions initiated by a group of Medicaid fraud-control units were for home health. CMS has been active in curbing problems in this arena by making uses of authority under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) to use temporary enrollment moratoria on home health providers in geographic areas of disproportionate crimes.

In their new report, the OIG noted that there are no federal laws or regulations that require HHAs to conduct background checks prior to hiring individuals or to periodically conduct background checks after individuals have been hired. State requirements for background checks vary as to what sources of information must be checked, which job positions require background checks, and what types of convictions prohibit employment. Though not stated in the report, what should be noted is that the background sanction-screening against the OIG’s List of Excluded Individuals/Entities (LEIE) is necessary and mandated in most states, along with screening State Medicaid sanction databases. However the problem is that most local criminal convictions are not related to violations of Medicare and Medicaid laws or regulation; and therefore not included in state reporting to the OIG LEIE.

In conducting the review, the OIG obtained a sample of Medicare-certified HHAs regarding all individuals they employed. It compared employee data with criminal history records to identify individuals with criminal convictions who were employed by the sampled HHAs. It also selected six employees for an in-depth review who had convictions for crimes against persons in the last five years and/or were registered sex offenders. Finally, it evaluated whether compliance with state laws would have led to disqualification of these six employees.

Findings

  • All HHAs conducted background checks of varying types on prospective employees.
  • Approximately half also conducted periodic checks after the date of hire.
  • Four percent of HHA employees had at least one criminal conviction that may or may not have disqualified them from employment.
  • Criminal history records reviewed were not detailed enough to enable a definitive determination of whether employees with criminal convictions should have been disqualified from HHA employment.
  • In-depth review of the six employees found that three had convictions for crimes against persons that would disqualify them from employment in HHAs, with the remaining three with convictions did not disqualify them from employment in their respective states.

Recommendation

CMS should promote minimum standards in background check procedures for HHA employee background checks by encouraging more states to participate in the National Background Check Program. CMS concurred with this recommendation.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on Google+ or LinkedIn.

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Copyright © 2015 Strategic Management Services, LLC. Published with permission.

 

Kusserow on Compliance: New guidance concerning HHA face-to-face encounters

Home health programs, which have been a high priority for Medicare and Medicaid, are intended to provide an alternative to institutional care for people with severe disabilities. The services provided by home health agencies (HHAs) are intended to be delivered in a beneficiary’s home. This approach accounts for more than $20 billion paid by Medicare on behalf of 3.4 million beneficiaries with another estimated $15 billon in outlays paid by Medicaid programs.

The Department of Justice (DOJ) and the Office of Inspector General (OIG) have found considerable evidence to confirm that home health is among the most vulnerable health care programs to fraud and abuse. The OIG recently found that as many as a quarter of all Medicare HHAs had submitted “questionable” bills. It also noted that that the Government Accountability Office (GAO) reported that 40 percent of all convictions initiated by a group of Medicaid fraud-control units were for home health. The OIG has identified numerous problems in personal care services that leave the program vulnerable to improper payments, abuse and fraud, and the failure of physicians who certify beneficiaries as eligible for Medicare home health services to conduct the requisite face-to-face encounters with the beneficiaries.

CMS has taken note of these problems and reported that last year the Comprehensive Error Rate Testing (CERT) program found that more than half of the home health claims were paid improperly. Of the 1308 CERT-reviewed claim lines in error, approximately 90 percent were found to have insufficient documentation errors. The majority of these errors were due to inadequate documentation supporting the face-to-face requirement set forth by the Home Health Prospective Payment System.

In response to this problem, CMS has been working on a voluntary paper clinical template that could be completed by physicians during their face-to-face examination of a Medicare patient. Physicians may voluntarily use the CMS template as a progress or clinic note as part of the patient medical record. The template functions as a “skip-template” where physicians complete only relevant sections for each patient. However, the template must contain all relevant information sufficient for billing at the appropriate evaluation and management code level. CMS has received numerous comments on the length of the template and how it makes it difficult for physicians or practitioners to complete the template. CMS reminded commenters three things in regard to the template:

  • The use of a template is voluntary and physicians/practitioners will not be required to use it.
  • Once a physician/practitioner completes the template, the resulting document is a progress note or office note that is part of the medical record for that patient. The note must contain all relevant information sufficient for patient care and sufficient for the physician/practitioner to bill for the appropriate level evaluation and management service.
  • The template is intended to be a “skip-template” where not all sections are relevant for all patients and therefore can be skipped.

CMS expressed interest from the public on how to improve the template to increase physicians/practitioners compliance with documenting the necessary clinical elements and possibly decrease the length of the template. In addition to developing a paper clinical template for documenting a home health face-to-face examination, CMS is developing an electronic clinical template.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2015 Strategic Management Services, LLC. Published with permission.

Nursing Homes Under Fire for Lack of Sprinklers

CMS has indicated that as many as 385 nursing homes in 39 states have failed to meet requirements to install sprinkler systems to combat potentially deadly fires in those facilities. According to the Associated Press, the nursing homes with the non-compliant sprinkler systems house 52,000 patients who are being put at unnecessary risk of deadly nursing home fires.

“Sprinklered”

The lack of sprinklers poses a compliance problem for some nursing homes because of a deadline set by CMS requiring all nursing homes to be “sprinklered” by August 13, 2013. CMS warned that it would not grant extensions for the timeline that was officially set out in a 2008 final rule (73 FR 47075). According to the Associated Press, CMS has indicated that compliance has reached 97 percent, with 3 percent of facilities falling out of compliance on the sprinkler mandate. CMS reportedly told the Associated Press that “CMS and states are actively engaging with the rest of the facilities to verify their compliance with this regulation and will take appropriate actions for noncompliance to ensure the safety of residents.”

Slow Compliance

The path to sprinklers in nursing homes has been a slow one. In 2003, attention was brought to the issue when two nursing homes, without sprinkler systems, burned and left 31 people killed. One of the nursing homes that caught fire was the Greenwood Nursing Home in Hartford, Connecticut and the other facility was the NHC Healthcare Center in Nashville, Tennessee.  Although at the time of those fires, newly constructed facilities were required to have sprinkler systems, older facilities were not required to be retrofitted. In 2008, CMS issued the requirement that all nursing homes were to install sprinklers and gave the lengthy five year deadline for compliance. Despite the slow start, the numbers have improved from last December when, according to the Associated Press, CMS reported that 714 homes lacked adequate sprinkler systems.

Cost

One reason for the lack of compliance is the cost associated with the installation of adequate sprinklers. For example, in 2003, following the Greenwood fire, the estimated cost of installing sprinklers ranged from $270,000 to $363,000 depending on whether a system needed to be upgraded or no system was in place at all.

CMS Action

According to the Associated Press, CMS indicated that it could resolve continued non-compliance with the sprinkler requirement by denying payment and terminating a facility’s provider agreement. The agency did state that some providers may receive extensions due to extenuating circumstances if, for example, nursing homes are undergoing major renovations. Regardless of the action CMS takes to enforce the sprinkler requirement, compliance is important. The Government Accountability Office indicated in a 2004 report that no facility fully equipped with sprinklers has ever had a multiple casualty fire. Simply put, sprinklers save lives. In the words of Tom Burke, a spokesman for the American Health Care Association, the value of sprinklers as a “safety and patient safety feature is undisputed.