Prohibition on paid referrals not limited to ‘relevant decisionmakers’

The Seventh Circuit affirmed the conviction of an individual under the Anti-Kickback Statute (AKS) (42 U.S.C. § 1320a-7b) whose referral agency had provided referrals to a home health company in exchange for $500 per referral. In affirming the lower court’s decision, the Seventh Circuit found that criminal liability under the AKS is not limited to relevant decisionmakers and that no safe harbors applied (U.S. v. George, August 14, 2018, Rovner, I.).

Referrals for money

The referrer was a certified homemaker employed by Help at Home, a home healthcare agency, beginning in 2007. In 2010, she decided to start a referral agency and signed a work for hire agreement with another home health service, Rosner Home Health Care, Inc. (Rosner), in which she agreed to convince providers, including doctors, case managers, discharge planners, and social workers, to refer patients to Rosner. In exchange, Rosner paid the referrer $500 for each patient referred. In 2015, the referrer was indicted and then found guilty of two counts of violating the AKS and one count of violating the general conspiracy statute (see Receipt of per-patient referrals, knowledge of illegality enough to overcome doubt, Health Law Daily, March 25, 2016).

Appeal

Under the AKS, the government must demonstrate that the referrer knowingly and willfully solicited or received remuneration in return for referring an individual to Rosner to provide or arrange services paid at least in part under Medicare. The referrer appealed her conviction arguing that there was insufficient evidence to support the substantive counts of her conviction falling under the AKS. According to the court, rather than merely demonstrate that evidence could have supported a finding of innocence, the referrer must demonstrate on appeal that the evidence could not have allowed a reasonable trier of fact to find her guilty.

Relevant decisionmakers

The referrer argued that she could not be held liable, as the statute applied only to “relevant decisionmakers,” which she was not. In making this argument, the referrer relied on a previous Fifth Circuit decision in which the court held that payments to a marketing firm distributing advertisement brochures of a provider to physicians did not fall within the AKS because they were not payments made to the relevant decisionmaker in exchange for sending patients to the provider. However, the court cited a subsequent case rejecting an interpretation of that case limiting criminal liability to persons would could be deemed relevant decisionmakers.

Safe harbors

The referrer also argued that she had a reasonable basis to believe she fell within the safe harbor provision of the AKS applying to “any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services. However, her written agreement with Rosner specifies that she was acting as an independent referral agency, not an employee. The court also noted that the referrer was paid for referrals, not for the provision of items or services covered by Medicare. Thus, the safe harbor provision did not apply.

Kusserow on Compliance: Inappropriate denial of services and payments in the Medicare Advantage program

In an update to its Workplan, the HHS office of Inspector General (OIG) added a new project in June. The OIG Office of Evaluation and Inspection will be reviewing and evaluating the question of inappropriate denial of service and payment in the Medicare Advantage program. Medicare Advantage Plans must cover all of the services that original Medicare covers. Capitated payment models are used for these plans. It is based on payment per person rather than payment per service provided. A central concern about the capitated payment model used in Medicare Advantage is that there may be an incentive to inappropriately deny access to, or reimbursement for, health care services in an attempt to increase profits for managed care plans. There have been questions raised as to whether some of the plans may be inappropriately denying service claims as a means to increase their profits.  The OIG plans to conduct medical record reviews to determine the extent to which beneficiaries and providers were denied preauthorization or payment for medically necessary services covered by Medicare. To the extent possible, we will determine the reasons for any inappropriate denials and the types of services involved.

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 © 2018 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OIG report on vulnerabilities in the Medicare hospice program

15 specific actions recommended to reduce Hospice vulnerability

4 million Hospice beneficiaries with an annual cost of $17 billion

CMS plans to increase hospices reimbursement by $340 million

 

The HHS Office of Inspector General (OIG) reported on numerous evaluations, audits, and investigations of the hospice program that have resulted in questioned costs, as well as criminal and civil prosecutions. The result of this work has identified vulnerabilities in the program. By way of background, the objective of hospice is to provide great comfort and care to beneficiaries, their families, and caregivers at the end of a beneficiary’s life. This program has grown steadily over the past decade, with Medicare now paying about $17 billion annually on behalf of 1.5 million beneficiaries—grown from a half million in 2000. According to CMS, hospice expenditures are anticipated to continue rising 8 percent annually as more beneficiaries utilize the care. In their review of this program, the OIG found:

  1. Hospice providers do not always provide needed services to beneficiaries; sometimes provide poor quality care; and were not able to effectively manage symptoms or medications, leaving beneficiaries in unnecessary pain for many days.
  2. Beneficiaries and their families and caregivers do not receive crucial information to make informed decisions about their care.
  3. Hospices’ inappropriate billing costs Medicare hundreds of millions of dollars that included billing for an expensive level of care when the beneficiary does not need it.
  4. A number of fraud schemes in hospice care negatively affect beneficiaries and the program with some involving enrolling beneficiaries who are not eligible for hospice care, while other schemes involve billing for services never provided.
  5. The current payment system creates incentives for hospices to minimize their services and seek beneficiaries who have uncomplicated needs with a hospice being paid for every day a beneficiary is in its care, regardless of the quantity or quality of services provided on that day.

The OIG recommended that CMS implement 15 specific actions that relate to seven areas for improvement. The OIG called upon CMS to:

  1. Strengthen the survey process-its primary tool to promote compliance-to better ensure that hospices provide beneficiaries with needed services and quality care.
  2. Seek statutory authority to establish additional remedies for hospices with poor performance.
  3. Develop and disseminate additional information on hospices, including complaint investigations, to help beneficiaries and their families and caregivers make informed choices about hospice care.
  4. Educate beneficiaries and their families and caregivers about the hospice benefit, working with its partners to make available consumer-friendly information.
  5. Promote physician involvement and accountability to ensure that beneficiaries get appropriate care.
  6. Strengthen oversight of hospices, including analyzing claims data to identify hospices that engage in practices that raise concerns.
  7. Take steps to tie payment to beneficiary care needs and quality of care to ensure that services rendered adequately serve beneficiaries’ needs, seeking statutory authority if necessary.

Meanwhile CMS announced in proposed rulemaking plans to increase payments for hospices by 1.8 percent, or $340 million, up from $180 million increase last year. CMS also included under the new Proposed rule:

  • New standards to help determine what measures hospices will no longer have to report under its meaningful measures initiative.
  • Changes to the Hospice Compare policies site to correct massive amounts of incorrect addresses, phone numbers and profit status for providers.
  • Beginning January 1, 2019, Hospices will have 4½ months after the end of each quarter to review and correct data that will be reported publicly on the website.
  • Physician assistants will be recognized as attending physicians for Medicare hospice.
  • Aggregate cap limiting overall annual hospice payment will increase by 1.8 percent to $29,205.44.

 

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 © 2017 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OIG toolkit for calculating opioid levels and opioid misuse risk

The OIG toolkit provides detailed steps for using prescription drug claims data to analyze patients’ opioid levels and identify certain patients who are at risk of opioid misuse or overdose. It is based on the methodology that OIG has developed in its extensive work on opioids. This provides technical information to support the OIG’s public and private sector partners, such as Medicare Part D plan sponsors, private health plans, and State Medicaid Fraud Control Units. It is intended to assist OIG partners with analyzing their own prescription drug claims data to help combat the opioid crisis. It provides steps to calculate patients’ average daily morphine equivalent dose (MED), which converts various prescription opioids and strengths into one standard value. This measure is also called morphine milligram equivalent (MME). The toolkit includes a detailed description of the analysis and programming code that can be applied to the user’s own data. The resulting data can be used to identify certain patients who are at risk of opioid misuse or overdose. Users can also modify the code to meet their needs, such as identifying patients at other levels of risk. The toolkit has three chapters:

 

(1) Analysis of Prescription Drug Claims Data,

(2) Explanation of the Programming Code To Conduct the Analysis, and

(3) Programming Code.

 

Opioid abuse and overdose deaths are at epidemic levels in the United States. As one of the lead federal agencies fighting health care fraud, the OIG is committed to supporting public and private partners in its efforts to curb the opioid epidemic. These partners include Medicare Part D plan sponsors, other private health plans, State Medicaid Fraud Control Units, State prescription drug monitoring programs, and researchers. They can use this toolkit to analyze claims data for prescription drugs and identify patients who may be misusing or abusing prescription opioids and may be in need of additional case management or other follow-up. This toolkit can also be used to answer research questions about opioid utilization.

Copies can be obtained by contacting the Office of Public Affairs at Public.Affairs@oig.hhs.gov.

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 © 2018 Strategic Management Services, LLC. Published with permission.