Adoption of annual wellness visits increasing at a moderate rate

Trends in annual wellness visits (AMV) indicate a modest increase in the percentage of Medicare beneficiaries receiving an AWV from 7.5 percent in 2011 to 15.6 percent in 2014, according to a study of the trends related to annual wellness visits (AWV) published in the Journal of the American Medical Association (JAMA) on April 19, 2017. The study found that “adoption of AWV was concentrated in ACOs [accountable care organizations] and among certain PCPs [primary care physicians] and regions of the country.”

Addition of the AMV to Medicare benefits

The AMV was added to Medicare benefits by section 4103 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) as part of its preventive care measures for Medicare beneficiaries. Medicare pays for 100 percent of the visit. The AWV became effective in January 1, 2011. According to the study, the AWV “has been promoted as a way for physicians and other clinicians to encourage evidence-based preventive care and mitigate health risks in aging patients.”

Study findings

Among the results of the study are the following findings: (1) white individuals, urban residents, and those from higher income areas and with one or two comorbidities were more likely to obtain an AWV; (2) beneficiaries that received an AWV in previous years were more likely to receive an AWV; (3) 44.4 percent of all AMVs had a concurrent problem-based visit; (4) most AMVs were performed by primary care physicians; and (5) physician practice groups or regions using more AWVs did not deliver more health care overall. The researchers also noted that beneficiaries reported unexpected out-of-pocket costs when AWVs are billed concurrently billed with problem-based visits.

The study conclusions

The study concluded that the decision to perform an AWV was primarily driven by practice factors and noted that this conclusion aligned with reports of physicians and health systems having incorporated templates, workflows, or dedicated nonphysician health care professionals to complete, document, and bill for AWVs. According to the researchers, the study had limitations, including: (1) whether AWVs increase the use of preventive care or mitigate health risks, (2) claims data could not show how often AWVs were performed by nonphysicians under physician supervision, and (3) the extent to which AWVs represent delivery of additional visits versus substitution for other visits..

8 years of illegal kickbacks costs Hospice Plus $12M

A group of hospices owned by Curo Health Services and operating under the Hospice Plus brand agreed to pay over $12 million to resolve allegations that they paid kickbacks in exchange for patient referrals in violation of the False Claims Act (31 U.S.C. §3729). The scheme came to light after several whistleblowers filed qui tam lawsuits on behalf of the United States, consolidated as U.S. ex rel. Capshaw v. White. The United States had previously partially intervened in the lawsuit against the corporate defendants for purpose of settlement; the suit remains pending against two former Curo executives, and the United States requested permission to intervene in the remainder.

Kickbacks were allegedly paid to (1) American Physician Housecalls, a physician house call company in the form of sham loans, free equity interest in another entity, stock dividends, and free rental space; and (2) to medical providers, including doctors and nurses, in the form of cash, gift cards, and other valuable items. According to the consolidated whistleblower complaints, the house call company allegedly received kickbacks from 2007 through 2012, while providers allegedly received payments from 2007 through 2014.

The involved hospices primarily operate in and around Dallas, Texas, and were first known as Hospice Plus, Goodwin Hospice, and Phoenix Hospice. The three companies were purchased by Curo Health Services in 2010 and consolidated under the Hospice Plus brand.

HHS developing new system to speed PRRB, other appeal processes

HHS and its subagencies continue to struggle with eliminating the backlog of appeals that has led to delays in payments to providers and litigation trying to get HHS to meet statutory requirements for hearing appeals. The two main appeals backlogs relate to Provider Reimbursement Review Board (PRRB) decisions (appeals by providers of final determinations by Medicare contractors) and individual appeals for Medicare coverage, payment, and premiums brought before the Office of Medicare Hearings and Appeals (OMHA).

PRRB

CMS is developing a system to electronically track and file PRRB and Medicare Geographic Classification Review Board (MGCRB) decisions, according to CMS officials speaking at a conference sponsored by the American Health Lawyers Association at the end of March. The current appeals process relies heavily on a manual, snail mail process that has added to the time it takes for parties to file all papers in preparation for a hearing. The “Office of Hearings Case and Document Management System (OH CDMS)” should be ready for use by the end of 2017. The OH CDMS will be accessible through the CMS Enterprise portal.

Using the new system, parties may:

  • file appeal requests
  • upload position papers, jurisdictional documents, and other supporting documentation
  • view documents issued by Board or filed by opposing party
  • manage issues raised in individual appeals and providers participating in groups
  • request other actions such as change in representative, expedited judicial review, mediation, etc., and
  • monitor case status

This new system also will be used by CMS Hearing Officers who hear appeals not covered by other CMS or HHS appeal avenues, such as:

  • Risk Adjustment Data Validation (RADV)
  • Medicare Advantage/Prescription Drug Plan (MA/PD)
  • Medicaid State Plan Amendments
  • Retire Drug Subsidy Determinations (RDS)
  • Organ Procurement Organizations (OPO)

The need for a more efficient way of handling all the filings related to an appeal was underscored by a presentation by Sue Anderson, PRRB chairperson. She noted that the PRRB currently has more than 10,000 cases on its docket. In fiscal year 2016, the PRRB issued 27 decisions that closed 66 cases; 147 expedited judicial determinations; and 497 jurisdictional determinations, so it has a long way to go to work through its backlog.

OMHA appeals

Issues with PRRB appeals aren’t even the most serious ones facing HHS. The Office of Medicare Hearings and Appeals (OMHA) has a backlog of hundreds of thousands of administrative appeals, and the American Hospital Association is engaged in long-standing litigation with HHS trying to force HHS to hold Administrative Law Judge appeals within 90 days. Currently, these appeals take 10 times longer, and the backlog grows every year. A recent filing by HHS in the litigation shows the seriousness of the issue: as of March 5, 2017, there were 667,326 pending appeals; HHS projects the number of pending appeals to grow to 1,009,768 by the end of FY 2021 (September 30, 2021).

OMHA is looking at a number of ways to deal with the backlog; (see OMHA trying to speed claims appeals process, April 18, 2017). One solution is legislation. Speaking at the Health Care Compliance Association (HCCA) Compliance Institute at the end of March, Kimberly Brandt, Chief Oversight Counsel for the U.S. Senate Committee on Finance, noted that the Senate is considering re-introducing the “Audit & Appeal Fairness, Integrity, and Reforms in Medicare Act.” The bill “seeks to increase coordination and oversight of government audit contractors while implementing new strategies to address growing number of audit determination appeals that delay taxpayer dollars from reaching the correct source,” according to Brandt. The bill also would encourage the use of voluntary alternate dispute resolution process to allow for multiple pending claims with similar issues of law or fact to be settled as a unit, rather than as individual appeals.

Webinar provides multiple perspectives on FCA cases

To avoid federal False Claims Act (FCA) (31 U.S.C. §3729 et seq.) liability, providers should implement an effective compliance program, stay ahead of the government’s investigation of possible FCA violations, and fix problems first. In a Health Care Compliance Association (HCCA) webinar entitled, “False Claims Act Cases—Perspectives from Both Sides of the Aisle,” Rachel V. Rose, principal at Rachel V. Rose—Attorney at Law, PLLC, and Sean McKenna, shareholder at Greenberg Traurig LLP, provided an overview of the process for filing federal FCA complaints and how to respond to investigations and lawsuits under the FCA.

Complaints

Qui tam relators file their complaints under seal, on behalf of the government. The Department of Justice (DOJ) has 60 days to investigate and decide whether to intervene, which happens only about 10 percent of the time. Even then, the government will prosecute only the strongest aspects of the case. The presenters warned that relators should use “an abundance of caution” when discussing an FCA case or the underlying allegations with anyone other than the whistleblower’s attorney or the government agents assigned to the case, as “breaking the seal” can result in dismissal or sanctions.

False claims

The type of false claim that most frequently leads to FCA liability is a claim for services not provided. Other categories of false claims include legally false claims (express), legally false claims by implied certification, and reverse false claims. In United Health Services, Inc. v. United States ex rel. Escobar, (2016), the U.S. Supreme Court upheld the implied certification theory and relied on whether the claim was material to payment, what McKenna called a “groundbreaking approach” (see Implied certification liability confirmed, limited to material compliance violations, Health Law Daily, June 16, 2016).

Since November 2, 2015, the range of penalties for violating the FCA increased from $5,500-$11,000 to $10,781-$21,562, plus treble damages and the relator’s attorney fees. FCA violations can also lead to exclusion, “the death penalty for health care providers.” Exclusion applies only to conduct from the past 10 years (42 C.F.R. Sec. 1001.901(c); see HHS OIG’s exclusion authority loosens, allows more discretion, Health Law Daily, January 12, 2017).

In parallel proceedings, simultaneous civil/criminal/administrative investigation of the same defendants occurs. It can be federal and state/local or multi-district. Not every case is appropriate for parallel proceedings, however. Examples of common parallel matters include procurement and government program fraud, health care fraud, internet pharmacies, and antitrust investigations.

Yates memo

The past several years in health care fraud and abuse prosecutions have seen an increased focus on individual actors such as executives, as reflected in a September 9, 2015 memo from former acting attorney general Sally Yates, known as the “Yates Memo.” The Memo emphasized the DOJ’s commitment to combat fraud “by individuals” and recommended that: (1) to qualify for a cooperation credit, a corporation must provide facts relating to the individuals responsible for the misconduct; (2) investigations should focus on individuals from the inception of the investigation; (3) culpable individuals should not be released from liability absent extraordinary circumstances; and (4) DOJ attorneys should not resolve matters with a corporation without a clear plan to resolve related individual case.

Best practices

If an FCA investigation occurs, providers should evaluate all liability (civil, criminal, administrative, state, licensure, and private), determine if anyone needs separate counsel or has talked to the government, preserve documents, and compile the right team, including consultants, billing and coding experts, and statisticians.