Home Health & Hospice Week

But read between the lines for the most vital message.

Home care providers are busy sorting out a new rule that calls for educating employees about their role in rooting out Medicaid fraud, waste and abuse.

Background: The Deficit Reduction Act of 2005 requires providers to establish written policies for all employees and contractors providing detailed information about state and federal false claims acts, whistleblower protections, and the entities' policies and procedures for detecting and preventing fraud and abuse. The requirement applies to hospitals, home health agencies, suppliers and other health care "entities" that receive $5 million or more annually from Medicaid.

The reg aims to inform--and protect--whistleblowers, employees and others in a position to detect and report suspected program abuses and fraud.

Some home care providers are subject to the provision that went into effect Jan. 1--at least in theory.

Tripping point: In reality, no one is enforcing the regulation. States are responsible for enforcement, but they have until March 31 to submit to the feds their individual plans for implementing the new rule. States may opt for extensions for submitting their plans, says the Centers for Medicare & Medicaid Services.

Heads up: Look for guidance from your state in the coming months, advises attorney Kathleen Drummy, partner in the Los Angeles office of Davis Wright Tremaine.

States' input will be vital to compliance, insiders say, since a number of specifics on the new requirements will be left up to the states. And without enforcement mechanisms in place, providers are essentially faced with a new rule that's in effect but not enforced.

Know If The Rule Applies To You

At a special Open Door Forum on Jan. 11, CMS officials fielded questions about the new reg but failed to offer many new specifics.

Hot topic: No one knows for sure how many home care providers will be subject to the new rule. In part that's because confusion reigns on how CMS is defining a health care "entity."

How it ultimately defines the term will prove to be crucial, notes the National Association for Home Care & Hospice.

"A health system comprised of multiple components would be subject to them if any one component meets the $5 million Medicaid threshold," said a CMS representative speaking at the forum.

If CMS maintains this position as its final one, the regulation will affect home care providers that are part of a health system--providers that otherwise would not be affected, notes NAHC.

In other words: If CMS defines "aggregate Medicaid funding" as the total received by a parent company even if that company bills Medicaid using different provider numbers, you may be subject to the education requirement even if your agency doesn't meet the $5 million threshold.

CMS has pledged to offer further guidance on this point and others, though it's offered no timeframe for doing so.

In the meantime, the states and providers are likely to keep wrestling with some of the finer details of the rule's requirements.

Case in point: The rule doesn't define what content providers must include in their education.

"We need more guidance to be able to answer the question, 'What is sufficient detail?'" notes Cory Kalheim, an attorney with the American Association of Homes and Services for the Aging.

Bottom line: The important message to take away is that the feds are working hard to identify and eliminate Medicaid fraud, waste and abuse, offers Drummy. To stave off unnecessary repayments of Medicaid funds--or even criminal prosecutions--home care providers should make fraud prevention a priority, she coaches.

Note: CMS' only guidance on the rule so far is a Dec. 13 letter to state Medicaid directors. The letter is at www.cms.hhs.gov/smdl/downloads/SMD121306.pdf.