Signs Point to Increased Scrutiny of Hospices and Nursing Homes in Ohio Signs Point to Increased Scrutiny of Hospices and Nursing Homes in Ohio

Signs Point to Increased Scrutiny of Hospices and Nursing Homes in Ohio

Two recent events suggest hospices and nursing homes should expect increased scrutiny from state and federal regulators and law enforcement.
On March 30, 2016, the United States Department of Justice (DOJ) announced the launch of ten regional Elder Justice Task Forces. One task force will be located in the Southern District of Ohio. This is the federal judicial district covering the southern part of Ohio, including Columbus, Dayton, and Cincinnati. According to the DOJ press release, the task forces “will bring together federal, state and local prosecutors, law enforcement, and agencies that provide services to the elderly, to coordinate and enhance efforts to pursue nursing homes that provide grossly substandard care to their residents.”
The following day, the Office of Inspector General (OIG) of the United States Department of Health & Human Services issued a report identifying over $250 million in inappropriate billing by hospices for general inpatient care (GIP). Specifically, OIG found that hospices billed one-third of GIP stays inappropriately, costing Medicare $268 million in 2012. The inappropriate billing involved providing GIP care to beneficiaries who did not need this level of care and billing for GIP when the beneficiary did not have uncontrolled pain or managed systems. According to the Report, Florida, Ohio, and Arizona stood out for the number of inappropriate GIP stays.
The Report's other findings were:
  1. Hospices were more likely to inappropriately bill for GIP provided in skilled nursing facilities than GIP provided in other settings (i.e., a hospital or hospice inpatient unit).
  2. For-profit hospices were more likely than other hospices to inappropriately bill for GIP.
  3.  Medicare sometimes paid twice for drugs because they were paid under Part D when they should have been provided by the hospice and covered under the hospice daily payment rate.
  4. Hospices did not meet all care planning requirements for 85 percent of GIP stays and sometimes provided poor-quality care.
  5. Hospices sometimes provided poor-quality of care and often did not provide intense service.
OIG made six recommendations to CMS:
  1. Increase its oversight of hospice GIP claims and review Part D payments for drugs for hospice beneficiaries.
  2. Ensure that a physician is involved in the decision to use GIP.
  3. Conduct prepayment reviews for lengthy GIP stays.
  4. Increase surveyor efforts to ensure that hospices meet care planning requirements.
  5. Establish additional enforcement remedies for poor hospice performance.
  6. Follow up on inappropriate GIP stays, inappropriate Part D payments, and hospices that provide poor quality of care.
CMS concurred with all six of the OIG’s recommendations. The actions CMS intends to take in response to the Report will likely result in increased oversight of hospices.
 As for the first recommendation for increased oversight, CMS states that it is procuring a national Durable Medical Equipment (DME) and Home Health/Hospice Recovery Audit Contractor that will conduct claim review and recoup overpayments and pay underpayments as necessary. In January 2015, CMS selected Connolly, LLC to be the RAC auditor for DME, home health, and hospice claims, but a subsequent bid protest has delayed commencement of any work.  
CMS concurred with second recommendation to ensure that a physician is involved in the decision to use GIP. CMS stated it has concerns that requiring a physician order for GIP could affect access for patients. However, the agency stated it will work with the hospice community to explore other options for expanding physician involvement.
As for the recommendation on prepayment reviews, CMS stated that it will work with its contractors to conduct prepayment reviews for lengthy GIP stays.
CMS concurred with the fourth recommendation to increase surveyor efforts on care planning requirements. CMS stated that it will revise the Basic Hospice Training for surveyors to emphasize care planning reviews.
As for enforcement, CMS’s only enforcement tool is to terminate a hospice from the Medicare program. Termination, however, may not always be appropriate and it can disrupt care. CMS stated that it will consider submitting a proposal as part of the budget process that would seek authority to establish additional remedies. This could include mechanisms for civil monetary penalties, plans of correction, directed in-service training, payment denials, and imposition of temporary management.
Finally, CMS concurred with the sixth recommendation to follow up on inappropriate GIP stays, inappropriate Part D payments, and hospices that provide poor quality of care. CMS stated that it will determine an appropriate number of claims to review. CMS also plans to instruct State Survey and Certification agencies to review the hospices identified in the OIG report as having provided poor quality of care and take appropriate action. CMS also stated that it will reiterate its guidance to Part D sponsors concerning prior authorization of the four categories of drugs typically used by hospice beneficiaries (analgesics, antinauseants, laxatives, and antianxiety drugs).
The creation of a task force in the Southern District of Ohio to investigate nursing homes, followed by an OIG report identifying Ohio as a state with hospice billing issues, indicates nursing homes and hospices will face increased scrutiny from regulators and law enforcement. As a result, providers need to ensure that they are compliant with applicable federal and state laws, especially laws and regulations governing patient safety and billing.
For more information about hospices, nursing homes, and health care fraud, please contact Robert J. Cochran or the Ice Miller attorney with whom you work. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 
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