Kusserow on Compliance: OIG’s planned work for home health agencies

Home Health Agencies (HHAs) remain one of the top enforcement priorities for the DOJ and HHS Office of Inspector General (OIG). Considerable OIG investigative resources are devoted to HHA fraud. However, the OIG auditors and evaluators are also focusing on HHA waste and abuse. For example, in May 2019, the OIG released several audit reports related to HHAs, including those for EHS Home Health, Excella Home Care, Great Lakes Home Health, and Metropolitan Jewish Home Care. The OIG found a number of deficiencies, including beneficiaries who were not homebound that were able to ambulate without assistance and perform home exercises, or had only a partial episode (wound healed). In addition, in many cases, documentation was not provided or did not support services. To continue its efforts in this area, the OIG has added several planned audits and evaluations related to HHAs, including the following:

  1. OIG will review supporting documentation to determine whether home health claims with 5 to 10 skilled visits in a payment episode, in which the beneficiary was discharged home, met the conditions for coverage and were adequately supported as required by federal guidance.

 

  1. Recent OIG reports disclosed high error rates at individual HHAs, consisting primarily of beneficiaries who were not homebound or who did not require skilled services. So, the OIG will continue its efforts regarding whether home health claims were paid in accordance with federal requirements.

 

  1. Using data from the CMS’s Comprehensive Error Rate Testing (CERT), the OIG plans to identify the common characteristics of “at risk” HHA providers that could be used to target pre- and post-payment review of claims.

 

  1. The OIG will review Medicare Part A payments to HHAs to determine whether claims billed to Medicare Part B for items and services were allowable and in accord with federal regulations. Generally, certain items, supplies, and services furnished to patients are covered under Part A and should not be separately billable to Part B. the OIG has previously found noncompliance with these Medicare billing requirements.

 

  1. The OIG will compare HHA survey documents to Medicare claims data to look for evidence of patients omitted from HHA-supplied patient information from select recertification surveys using Medicare claims data.

 

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 LinkedIn.

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Copyright © 2019 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: CMS ‘guts’ SNF/LTC compliance program mandates

– CMS “bows” to industry pressure

– Objective standards replaced by subjective ones

– Designated compliance officer not to be required

– No contact person to whom “people may report suspected violations”

 

A new CMS proposed rule—“Medicare & Medicaid Programs; Requirements for Long-Term Care Facilities: Regulatory Provisions to Promote Efficiency and Transparency”—proposes to roll back and remove many compliance program related requirements for long term care facilities (LTC) participating in Medicare/Medicaid. The Proposed modifications include removing many of the compliance program requirements adopted in 2016 on the basis that they are not expressly required by statute. The stated purpose of the proposed changes is to reduce administrative burdens. This flies in the face of increased identification by CMS, OIG, GAO, DOJ, and Congress of legal and regulatory compliance violations by LTC facilities.

Enhanced compliance programs were a way of addressing these ongoing problems. Among the requirements removed were (1) designation of a compliance officer; (2) designation of a compliance liaison for operating organizations with five or more facilities; (3) annual reviews of the compliance program; (4) having an identified person to whom individuals may report suspected violations.

CMS now proposes that a LTC organization develop, implement, and maintain an effective compliance and ethics program most appropriate for size and type of the organization. This should include written compliance standards, policies, and procedures that are reasonably capable of reducing the prospect of criminal, civil, and administrative violations. The new standards are far less objective and rely more on subjective concepts that are vague and difficult to substantiate, using terms like “reasonable” and “sufficient.”  Other CMS expectations for facilities include:

  1. Providing sufficient resources for operation of the compliance program.
  2. Designating a high-level person for overall compliance program responsibility with appropriate authority to assure compliance with the regulations.
  3. Taking reasonable steps to achieve compliance with program’s standards, policies, procedures, including monitoring and auditing that is reasonably designed to detect criminal, civil, and administrative violations.
  4. Having in place and publicizing a reporting system whereby anyone could report violations by others within the organization without fear of retribution.
  5. Ensuring consistent enforcement and discipline of standards, policies, and procedures.
  6. Effectively communicating compliance standards, policies, and procedures in compliance mandatory training.
  7. Taking reasonable steps to respond detected violations and to prevent similar violations in the future.

The new CMS proposed compliance program standards are significantly different from standards issued by the U.S. Department of Justice in April 2019—new DOJ evaluation of corporate compliance program guidelineswhich are designed to be used in making prosecutorial decisions and in determining penalty guidelines. Before CMS proposed to rescind many of its previously published standards for compliance programs, the DOJ and CMS standards were consistent.

 

 

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 LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2019 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Many states are not in compliance with mandates to conduct provider criminal background checks

CMS required all states to conduct criminal background checks on high-risk providers before allowing them to receive Medicaid payments by July 2018. CMS could consider as overpayments any payments made to high-risk providers in those states that have not undergone a criminal background check. Those providers must return to CMS the federal share of those overpayment. The OIG found that 18 states failed to comply with the requirement by a CMS deadline of July 2018 and 13 still had not complied as of January 1, 2019. States cited three reasons for not complying:

  1. A lack of authority:Three states said their Medicaid agencies did not have proper oversight power for these background checks, requiring legislative or executive action to do this.
  2. A lack of resources:One state reported it did not have the necessary staff to do the background checks.
  3. A lack of criteria to determine “high-risk providers”: One state said it was actively revising its criteria based on concerns from the provider community, delaying compliance.

The OIG recommended CMS to (1) ensure all States fully implement fingerprint based criminal background checks for high-risk Medicaid providers; (2) amend its guidance so that states cannot forgo conducting criminal background checks on high risk providers applying for Medicaid, unless Medicare has conducted the checks; (c) compare high risk Medicaid providers’ self-reported ownership information to Medicare’s provider ownership information to help states identify discrepancies. CMS concurred with the first 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 LinkedIn.

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Copyright © 2019 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Increased CMS Spotlight on Nursing Facilities

CMS and states visit nursing homes on a regular basis with “survey” or “inspection” teams to determine if the nursing homes are providing the quality of care that is required by Medicare and Medicaid, as well as to identify deficiencies in meeting CMS safety requirements. When deficiencies are identified, they must be corrected, and, if serious ones are not corrected, it may lead to termination from participation in Medicare and Medicaid.

Most facilities correct their problems within a reasonable period. However, some have significantly more problems that the norm with a pattern of serious problems persisting over three or more years. Although some facilities institute enough improvement that they are in substantial compliance on one survey, significant problems often resurface by the time of the next survey. Such facilities are referred to by CMS as a “yo-yo” or “in and out” compliance history. These facilities rarely address underlying systemic problems that are giving rise to repeated cycles of serious deficiencies. To address this problem CMS created the “Special Focus Facility” (SFF) initiative that is a listing of problematic nursing homes that have had a history of serious quality issues and are included in a special program to stimulate improvements in their quality of care.

Those on the SFF list are visited in person by survey teams twice as frequently as other nursing homes (about twice per year). The longer the problems persist, the more stringent the enforcement actions, including imposition of civil monetary penalties (“fines”) or termination from Medicare and Medicaid.  Within about 18 to 24 months after a facility is identified by CMS as an SFF nursing home, CMS expects: (1) improvement & graduation off the SFF; (2) termination from participation in Medicare/Medicaid programs; or (3) extension of time on SFF because of some progress or change of ownership. For more information check the CMS website that posts SFF Nursing Homes in five (5) categories:

  1. newly added to the SFF;
  2. failing to show significant improvement since being posted on the SFF;
  3. showing significant improvement by the most recent survey, and CMS is monitoring;
  4. graduating off the SFF because they not only improved, but they sustained significant improvement for about 12 months (through two standard surveys); and
  5. terminated by CMS from participation in Medicare and Medicaid within, or voluntarily chose not to continue such participation.

To assist in improving Nursing Home quality, CMS began rating all nursing homes using a Five-Star Quality Rating System that can be found at https://www.medicare.gov/NHCompare.

 

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 © 2019 Strategic Management Services, LLC. Published with permission.