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.

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

Kusserow on Compliance: OIG releases two reports questioning quality of hospice care

80% surveyed hospices had deficiencies

Many cases of harm to beneficiaries cited

The OIG released two reports which found hospices participating in Medicare had one or more deficiencies in the quality of care they provided to their patients. The OIG cited cases where beneficiaries were seriously harmed by poor care or facilities failed to act in cases of abuse. In its reports, the OIG made several recommendations to strengthen safeguards.

In one report—Hospice Deficiencies Pose Risks to Medicare Beneficiariesthe OIG identified significant vulnerabilities in the Medicare hospice benefit and found over 80 percent of these hospices had at least one deficiency. These included poor care planning, mismanagement of aide services, and inadequate assessments of beneficiaries. Over 20 percent of hospices had a serious “condition-level” deficiency, which means that “the hospice’s capacity to furnish adequate care is substantially limited or adversely affects the health and safety of patients.” The OIG called upon CMS to: (1) strengthen the survey process; (2) establish additional enforcement remedies; (3) provide more information to beneficiaries and their caregivers; (4) expand the deficiency data that accrediting organizations report to CMS to strengthen its oversight of hospices; (5) seek statutory authority to include information from accrediting organizations on Hospice Compare; (6) include on Hospice Compare the survey reports from State agencies; (7) include on Hospice Compare the survey reports from accrediting organizations, once authority is obtained; (8) educate hospices about common deficiencies and those that pose particular risks to beneficiaries; and (9) increase oversight of hospices with a history of serious deficiencies.

In its second report—Safeguards Must Be Strengthened To Protect Medicare Hospice Beneficiaries From Harm—the OIG described specific instances of harm to hospice beneficiaries and identified vulnerabilities in CMS’s efforts to prevent and address harm. Some instances of harm resulted from hospices providing poor care to beneficiaries and some resulted from abuse by caregivers or others and the hospice failing to act. Cases revealed vulnerabilities in beneficiary protections that CMS must address. The OIG called for CMS to: (1) seek statutory authority to establish additional, intermediate remedies for poor hospice performance; (2) strengthen requirements for hospices to report abuse, neglect, and other harm; (3) ensure that hospices are educating staff to recognize signs of abuse, neglect, and other harm; (4) strengthen guidance for surveyors to report crimes to local law enforcement; (5) monitor surveyors’ use of immediate jeopardy; and (6) improve and make user-friendly the process for beneficiaries and caregivers to make complaints.

 

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: 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: Tips on mergers and acquisitions due diligence

– Failing to engage in regulatory due diligence may result in legal exposure

– Most M&As in health care fail to adequately check regulatory risk liabilities

Tom Herrmann, a former senior executive in the Office of Counsel to the Inspector General (OCIG) and Medicare Appeals Council Appellate Judge, provides interesting insights on this subject as result of his government experience and work with due diligence reviews.  Traditionally, law firms conducting due diligence reviews focus on contracts and other legal obligations. They examine a multitude of areas including an entity’s structure; contractual, intellectual and property obligations; securities and financing compliance; tax exposure risks; and previous and current litigation. Public accounting firms assess the financial accountability and viability of an entity. It is not uncommon for the accounting and law firms to have the scope of their due diligence reviews limited to their areas of expertise, which often do not include health care regulatory compliance. This may result in a failure to adequately review and address potential problems in the regulatory compliance arena. Regulatory due diligence is a specialized review process that requires the application of certain protocols, and protocols and can be performed quickly and efficiently to identify areas of regulatory risk and vulnerability. A review should include assessing the effectiveness of the entity’s compliance program; evaluating internal monitoring of high-risk areas; conducting sample of claims audits and extrapolations; and the ongoing internal audit process of a company. Regulatory compliance experts know where to look for weaknesses without having to do a “deep dive.” Thus, such a review can be performed in an efficient and cost-effective manner. He offers the following tips for those engaged in M&A:

  1. Any party considering an acquisition or entering into a merger should adequately assess potential future government enforcement or regulatory action. This provides an incentive for an acquiring party to require the disclosure prior to a merger or acquisition of any information or documentation relating to a pending or potential government enforcement or regulatory action.

 

  1. The matters disclosed during a regulatory due diligence review may encompass a broad range of issues, including employing or contracting with an excluded party, a flawed arrangement with a physician, or Medicare or Medicaid overpayments.

 

  1. Once a potential legal or regulatory violation is identified, a resolution of the matter, including self disclosure to appropriate government authorities, should be addressed by the parties.

Tom Herrmann may be reached at thermmann@strategicm.com or at (703) 535-1410 for more information on this topic.

 

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.