Home Health & Hospice Week

One vital tip from the OIG: Don't personalize offerings.

Don't miss this new federal guidance--or you could risk a whopping $25,000 fine and a breach of federal anti-kickback rules.

In an advisory opinion released Dec. 14, the HHS Office of Inspector General weighs in on the question of whether a home health agency's educational video offerings clash with federal law designed to prevent kickbacks.

Misstep in your compliance efforts and you will be sorry. Violation of the statute constitutes a felony punishable by a maximum fine of $25,000, imprisonment up to five years, or both, notes the OIG. Conviction also leads to automatic exclusion from federal health care programs, including Medicare and Medicaid.

Big picture: The OIG advisory opinion scrutinizes the legality of two videos for prospective patients produced by a particular home health agency. The videos, intended for patients about to undergo surgery for hip or knee total joint replacement, offer education about typical post-surgical restrictions and physical limitations they are likely to experience while recovering at home. The videos also advise patients on such issues as optimal furniture placement and sleeping and bathing arrangements.

The HHA in question routinely provides one of the videos to patients who have been referred to the agency by a surgeon.

Details: "Under the Arrangement, the Agency follows up each referral with an initial telephone call to the patient," the opinion states. "During this call, the patient is reminded of his or her doctor's referral to the Agency. The Agency confirms the information it has about the patient and reminds the patient of his or her right to opt for a different home health provider. Preparations are also made to send the patient an educational video in the days prior to surgery."

Consider All Angles

The OIG focused primarily on the question of whether the free educational videos would sway pa-tients to choose an agency.

Good news: The OIG concludes that the free videos "were not likely to influence a patient's selection," citing these reasons:

• Patients do not receive the videos until after being referred to the agency;
• It's likely, therefore, that a surgeon's implicit endorsement of the agency "substantially informs" the patient's choice of providers;
• The videos' content is relevant regardless of which HHA a patient chooses, and
• No individually personalized safety or health care recommendations accompany the videos.

Big distinction: The OIG pointed out that the videos in this case were very different from a situation they considered earlier. In that scenario, an HHA provided free in-person and telephone pre-operative home safety assessments for patients scheduled to undergo orthopedic surgery. That is a practice that can definitely land you in hot water, reminds attorney Daniel Mohan, partner with Morris, Manning & Martin in Atlanta.

The OIG categorizes such in person and telephone assessments as "likely to influence" a patient's decision in earlier advisory opinion no. 06-01, Mohan points out.

Bottom line: Review your outreach efforts carefully, cautions Elizabeth Hogue, an attorney based in Burtonsville, MD.

"Agencies should develop internal policies and procedures that reflect all of the OIG's guidance on the topic of provision of free services to patients and freedom of choice," she tells Eli.