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.

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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.

Telehealth Expansion Gets Bipartisan Congressional Support

July 2014 has brought a lot of activity toward expanding telehealth services to improve access to health care for seniors and others and lower the costs of health care for federal health care programs. Members of both houses of Congress and both political parties have introduced bills that would require Medicare to expand telehealth services provided to Medicare and Medicaid beneficiaries. Moreover, CMS’ 2015 Physician Fee Schedule Proposed rule includes a proposal to add annual wellness visits, psychotherapy services, and prolonged evaluation and management services to the Medicare telehealth benefit. In announcing its appreciation for the efforts of legislators to push for improvements in telemedicine coverage, the American Telemedicine Association (ATA) stated that the “bills are instrumental in demonstrating widespread congressional support.”

Telehealth Parity Act of 2014 

On July 31, 2014, House of Representatives members Mike Thompson (D-Calif.), Gregg Harper (R-Mississippi), and Peter Welch (D-Vermont) introduced the Medicare Telehealth Parity Act of 2014 (HR 5380) (Discussion Draft) , which “creates a [three] phase approach over four years to expand coverage of telemedicine-provided services and removes arbitrary barriers that limit access to services for Medicare beneficiaries,” according to an ATA press release. Thompson explained that the bill puts telehealth services under Medicare on the path toward parity with in-person health care visits. The legislation has been referred to the House Energy and Commerce Committee and the House Committee on Ways and Means.

The phase-in begins in rural areas and gradually removes geographic restrictions to patient care. The bill also provides for telehealth services furnished by diabetes educators as well as outpatient therapists, including speech language therapist, audiologists, respiratory therapists, and physical therapists; allows remote patient management services for chronic health conditions such as diabetes, congestive heart failure, and chronic obstructive pulmonary disease, including patient monitoring, patient training, clinical observation, assessment, treatment and other services; and expands home telehealth, hospice, and home dialysis.  The bill requires Government Accountability Office (GAO) to conduct a study of the effectiveness of remote patient monitoring on decreasing hospital readmissions for the chronic conditions included in the bill and the savings to Medicare as well as the implications of greater use of patient monitoring with respect to payment and delivery system transformations. The bill is discussed in more detail in a post by Bryant Storm titled, “Bill Would Stretch Telemedicine to Physical Therapy, Bigger Populations.”

Telehealth Enhancement Act of 2014

The Telehealth Enhancement Act of 2014 (S. 2662), which was introduced by Senators Thad Cochran (R. Mississippi) and Roger Wicker (R-Mississippi), would expand the use of telehealth technology to improve health care for seniors and other patients in underserved areas as well as help lower health care costs. The legislation would waive statutory Medicare restrictions on telehealth services to encourage greater use of telehealth technologies and would extend telehealth coverage to all critical access and sole-community hospitals regardless of metropolitan status. The legislation also covers home-based video services for hospice care, home dialysis, and homebound seniors. Medicare home health payments would be adjusted. In addition, the bill would allow states to modify Medicaid coverage to include telehealth services for women with high-risk pregnancies. The bill has been referred to the Senate Finance Committee. According to the ATA, the bill “includes several provisions that may see significant budget savings and build on recent payment innovations such as accountable care organizations and other incremental budget-sensitive proposals.”

This Senate bill is a companion to legislation introduced by Harper, Thompson, Welch, and Devin Nunes (R-Calif.) last year, known as the Telehealth Enhancement Act of 2013 (HR3306). Many of the provisions of HR 3306 are reflected in S. 2662. The ATA Hub summarized the provisions of HR 3306, stating that such provisions include incentive for reducing hospital readmissions, advancing a health home approach as found in the Medicaid program, care coordination for chronic illness such as Parkinson’s, flexibility for accountable care organizations to offer telehealth services, expansion of geographic locations, coverage of home-based video services, and coverage of Medicaid telehealth services for high-risk pregnancies. HR 3306 is pending in the House Ways and Means Committee and House Energy and Compliance Commerce. According to Wicker, “Telehealth cuts down travel time and increases access to specialists for residents in many rural areas who do not live near these essential health care resources.”

CMS Proposed Rule

CMS proposed to add the following services to the list of services that can be furnished to Medicare beneficiaries under the telehealth benefit: annual wellness visits, including a personalized prevention plan of service, initial visit, and subsequent visit; psychotherapy services, including family psychotherapy with and without patient present; and prolonged evaluation and management services requiring direct patient contact beyond the usual service. CMS found that these services meet the criteria for being on the Medicare telehealth list and are sufficiently similar to psychiatric diagnostic procedures or office outpatient visits currently on the telehealth list to qualify for coverage.

Conclusion

“Telehealth  is one of the most promising aspects of the health care field,” according to Harper. The use of telehealth technology and services may be the answer for improving access to health for seniors and others in underserved areas and lowering health care costs; however, Wayne Caswell, member of ATA and Founder of Modern Health Talk, sees this as “a step in the right direction” but “just a baby step” and noted that he thinks “much more is needed.”  In an article, written in response to the introduction of the Telehealth Enhancement Act of 2013 bill, Caswell cautioned that the telehealth bills introduced in Congress may get resistance from states seeking to “preserve the status quo and the authority of state medical boards.” Other risks related to the expansion of telemedicine services such as privacy, confidentiality, credentialing, and failure of technology for health care providers are discussed in the post, “Growth of Telemediccine Services Brings the Need to Address Associated Risk.

Kusserow’s Corner: House Hearing on Medicare Fraud and Abuse

The U.S. House Energy and Commerce Subcommittee on Oversight and Investigations held a hearing on “Medicare Program Integrity: Screening Out Errors, Fraud, and Abuse.” During the hearing, subcommittee members heard testimony from CMS Deputy Administrator and Director of the Center for Program Integrity Dr. Shantanu Agrawal, HHS Office of Inspector General (OIG) Deputy Inspector General for Investigations Gary Cantrell, and Government Accountability Office (GAO) Director of Health Care Kathleen M. King.

CMS Testimony

The CMS testimony revolved around how it is applying three operational principles to guide all of its initiatives: (1) aiming to achieve operational excellence in addressing the full spectrum of integrity causes, in taking swift administrative actions, and in the performance of audits, investigations and payment oversight; (2) providing leadership and coordination in program integrity efforts across the health care system; and (3) focusing on impacting the cost and appropriateness of care across health care programs. Some of CMS’s efforts to reduce fraud, waste and abuse were noted, including: (1) strengthening provider enrollment; (2) ensuring proper and accurate claims payment; (3) facilitating leadership and coordination across the health care system; and (4) improving payment data transparency.

CMS acknowledged the failure to meet its target goal of a reduced improper payment rate for Medicare fee-for-service, and that the improper payment rate had actually worsened over the last fiscal year. CMS noted that it recovered about $19.2 billion in fraudulent payments over the past five years, including $210 million through a new system that uses analytics to probe billing patterns; however, the recovered sum is dwarfed by the size of the problem, projected to be up to $50 billion a year.

The subcommittee cited one news outlet that reported that several doctors who had lost a medical license were still able to bill the Medicare program for millions of dollars. In addition, it noted that at least 14 individuals convicted of FDA-related crimes and debarred by the FDA do not appear to be excluded from the Medicare program; six doctors debarred by the FDA were paid over $1 million in Medicare payments in 2012. Another issue raised in the hearing was that a Medicare card has the patient’s social security number (SSN), creating serious risk of identity theft. Both the GAO and OIG identified fixing this SSN issue as an important step in preventing Medicare fraud.

GAO Testimony

The GAO testimony spoke to their strategies to combat fraud through examining: (1) the ability of CMS’ information system to prevent and detect enrollment of ineligible or fraudulent Medicare providers and suppliers; (2) the possible use of electronic-card technologies; (3) the oversight of program integrity efforts for prescription drugs; and (4) the oversight of certain contractors who conduct post-payment claims reviews. The GAO has focused on the following strategies: (1) provider and supplier enrollment; (2) prepayment and post payment claims review; and (3) addressing identified vulnerabilities. Based upon its work, the GAO recommended:

  • Requiring additional provider and supplier disclosures of information;
  • Establishing core elements for provider and supplier compliance programs as authorized in the Patient Protection and Affordable Care Act (ACA);
  • Increasing use of prepayment edits to help prevent improper payments;
  • Improving oversight of the information systems analysts use to identify claims for post payment, as well as the contractors responsible for the reviews;
  • Implementing mechanisms to resolve vulnerabilities that could cause improper payments; and
  • Removing SSNs from beneficiaries’ Medicare cards to help prevent identify theft.

OIG Testimony

The OIG testimony provided an overview of current health care fraud trends and challenges that impede effective oversight, as well as recommendations on how to address such trends and challenges that could result in billions of dollars being saved, along with a more efficient and effective programs. These included:

  • Providing the OIG with authority to execute federal warrants for the seizure of assets for forfeiture to curb the profitability of healthcare fraud, which will exert a deterrent effect.
  • Removing SSNs from Medicare cards to help protect the personally identifiable information of Medicare beneficiaries.
  • Strengthening the Medicare contractor’s monitoring of pharmacies and its ability to identify for further review of pharmacies with questionable billing patterns.
  • Requiring Part D plans to verify that prescribers have the authority to prescribe.
  • Increasing monitoring of Medicare claims for home health services.
  • Creating a standardized form to ensure better compliance with the face-to-face encounter documentation requirements for home health agencies (HHAs).
  • Implementing the surety bond requirement for HHAs.
  • Monitor hospices that depend heavily on nursing facility residents.
  • Modifying the hospice payment system for care in nursing facilities, seeking statutory authority if necessary.
  • Taking action to provide States with data for identifying overpayments for physician certification statement (PCS) claims when beneficiaries are receiving institutional care paid for by Medicare or Medicaid.
  • Mandating the use of the audit log feature in all electronic health records (EHRs).
  • Working with contractors to identify best practices and develop guidance and tools for detecting fraud associated with EHRs, with specific guidance to address documentation and electronic signatures in EHRs.
  • Amending regulations to require Medicare Advantage and Part D plans to report to CMS, or its designee, their identification of and response to incidents of potential fraud and abuse.
  • Establishing a deadline for when complete, accurate, and timely Transformed Medical Statistical Information System (T-MSIS) data will be available.

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’s Corner Newsletter

Copyright © 2014 Strategic Management Services, LLC. Published with permission.