Home Health & Hospice Week

The labor market may be tight, but is it that tight?

For most home health and hospice agencies, if you found out a potential or current worker had been excluded from Medicare and Medicaid, they would be out on their ear. A new advisory opinion from a federal fraud watchdog says you may not have to do that — but you probably still should.

The facts: A medical group practice specializing in pain management employed a chiropractor who had been excluded from federal healthcare programs after pleading guilty to receiving illegal kickbacks for referring workers’ compensation (WC) patients to a certain hospital for spinal surgery, according to OIG Advisory Opinion No. 22-11 released May 25. Upon finding out, the practice placed the Excluded Individual on unpaid administrative leave and self-disclosed to the OIG, it says.

Now the practice wants to hire the individual back as a marketer to referral sources. The practice “would reestablish the Excluded Individual’s employment as a WC payor relations representative. In this role, the Excluded Individual’s primary job responsibilities would be marketing Requestor’s medical services to WC payors and attorneys who work with individuals covered by WC payors,” the opinion says.

Limitations: “The Excluded Individual would not provide marketing, billing, or any other services to Federal health care program beneficiaries or to any providers or suppliers who refer Federal health care program beneficiaries to Requestor,” the practice says. The chiropractor would also work from an office where no patient visits occur, and “would not provide items or services, directly or indirectly, for which payment may be made by a Federal health care program.”

Further, the practice “would create a separate payroll division dedicated to WC, which would pool revenues derived from the reimbursement [the practice] receives only from non-Federal health care program payors,” the opinion continues. “The Excluded Individual’s salary, benefits, and expenses would be paid exclusively from this separate WC payroll,” the practice stresses.

Technically, “the Proposed Arrangement would not constitute grounds for the imposition of sanctions under section 1128A(a)(6) of the [Social Security] Act,” the OIG admits in the letter. That’s because “the employment of the Excluded Individual under the Proposed Arrangement would not involve the provision of items or services for which payment may be made under a Federal health care program and therefore would not implicate our civil monetary penalty authority at section 1128A(a)(6) of the Act,” the OIG explains.

However: “We believe the Proposed Arrangement raises concerns from a compliance perspective,” the OIG cautions. The practice “proposes to employ the Excluded Individual — someone convicted of receiving illegal kickbacks in exchange for the referral of WC patients — in a marketing role that is designed to encourage WC payors and WC Attorneys to refer their clients to Requestor for medical services. Given the Excluded Individual’s history of participating in kickback schemes involving referrals of WC patients, his employment presents a meaningful compliance risk” for the practice, the OIG stresses.

Plus: The chiropractor was excluded from the state WC system, and “we offer no opinion on whether the Proposed Arrangement would implicate or violate the terms of ” that suspension, the OIG says.

Note: The opinion is at https://oig.hhs.gov/documents/advisory-opinions/1034/AO-22-11.pdf.