Home Health & Hospice Week

Tip: Make sure compliance training isn't just for staff orientation.

The 78 home health agencies suspended in Dallas may have to close their doors forever, but you can avoid a similar fate by taking these steps recommended by industry experts:

1. Get proactive about compliance. In today's stepped up enforcement world, "there needs to be an industry focus on compliance," urges attorney Robert Markette Jr. with Benesch Friedland-er Coplan & Aronoff in Indianapolis. That will be a switch for many agencies, who have been ignoring compliance under the lax enforcement environment that has persisted for much of the last decade.

You can turn to free compliance tools from the HHS Office of Inspector General for help, suggests financial consultant Tom Boyd with Rohnert Park, Calif.-based Boyd & Nicholas. For example, you can get a fraud-fighting website widget and website badges at www.stopmedicarefraud.gov, Boyd points out. OIG compliance guidance for HHAs and hospices is online at http://oig.hhs.gov/ compliance/compliance-guidance/index.asp -- scroll down to the 1999 and 1998 entries, respectively.

2. Prioritize compliance training. Training your staff on compliance requirements shouldn't be a one-off session during orientation, Markette urges. Reputable providers should train staff over time, reflecting an "ongoing corporate attitude," he says.

To train employees on compliance, you need to have up-to-date policies and procedures to follow. Make sure you have them in your compliance plan, says Washington, D.C.-based attorney Elizabeth Hogue.

3. Use your own judgment. If prosecutors' allegations are true, the indicted HHAs involved in the Dr. Jacques Roy fraud case engaged in blatant fraud. But many of the suspended agencies may be guilty of just going along with Dr. Roy's certifications and care plans without using their own assessment of the patient.

HHAs should function as gatekeepers to the Medicare home care benefit, Markette maintains. They need to conduct their own assessment of the patient's eligibility focusing on homebound status and skilled need.

Warning: If medical reviewers find that a patient doesn't meet Medicare eligibility criteria, it won't matter if you have a physician's order for the care. You'll be on the hook for repayment at best and fraud charges at worst, Markette cautions.

A physician's actions won't "exonerate the nurses and the agencies," says attorney Liz Pearson with Pearson & Bernard in Covington, Ky. HHAs see the patient and should assure themselves that the patient is eligible for services regardless of what the physician's office says.

4. Get serious about documenting homebound status. A vital part of your assessment of a patient should be her homebound status. But just evaluating homebound status isn't enough. You need to document in the record exactly why the patient is homebound.

Tip: Use guidance the Centers for Medi-care & Medicaid Services issued in its home health prospective payment system final rule for 2012 to guide your documentation, Markette advises. The rule spells out a "two-part test" for homebound, ho notes. (For more details about the change, see Eli's HCW, Vol. XX, No. 39, p. 310.)

5. Check up on referring physicians. "HHAs must be vigilant in assuring themselves that their referral sources are legit themselves," Pearson says. Check on referral sources in the OIG's exclusion database and in state licensing records, she recommends.

The consequences of not doing those checks are no joke. "If the doctor signs the POC, the claim is a false claim," Pearson warns. "This is the kind of trouble that does make a difference -- convictions that lead to exclusion."

6. Beware kickbacks to referral sources. "You always need to be concerned with your referral sources wanting something in exchange for referrals," Pearson warns. "No referral source should ever be paid ... simply for providing referrals." That goes for cash or "in kind" kickbacks, Pearson tells Eli.

Some legitimate agencies "feel the pressure brought by the bad actors out there" and cave in to requests for kickbacks, Pearson laments. Don't let yourself become one of them, she urges. "If your referral source has its hands out, then you must check the legality of the request and likely walk away. This case sends the message that worse things can happen then losing referrals."

7. Stay leery of shady marketing arrangements. Kickbacks are still kickbacks, whether they go directly to the referring physicians or to a third party "marketer." Furnishing payment for the number of patients a source sends you is a definite no-no. "Marketers can't sell you patients," Markette stresses. "That's a felony."

8. Assess yourself. Self-auditing and monitoring are key components of the OIG's recommended compliance guidance for HHAs and hospices. Zero in on your own hot spots, or those experienced by the industry as a whole.

For example: Evaluate patients referred by physicians who make more than the 10 percent benchmark of your referrals -- check for eligibility, experts agree. And put other hot topics like high therapy usage and long-term patients with multiple recerts on your auditing target list.

Policing yourself will gain you major credit with the feds if they come calling, Markette believes. Ditto for returning payments. It's much harder for prosecutors to justify criminal charges when you've already paid money back, he says.

Bottom line: "You want to be out in front of [potential fraud] and clean this stuff up," Markette concludes.

9. Report the fraud you see. "Providers should report fraud," Boyd urges. You can turn to the OIG hotline at 1-800-HHS-TIPS (1-800-447-8477) or report online at www.oig.hhs.gov/fraud/report-fraud/report-fraud-form.asp.

Or perhaps agencies have reported before and seen no action taken. Don't stop at reporting. "They should also document their reporting of it," Boyd advises. Then agencies can point to the report as proof that they were trying to combat fraud and abuse when the feds or mainstream press are trying to paint the entire industry as fraudulent.

10. File a whistleblower lawsuit. Some-times agencies may be reluctant to report because they fear "blowback" -- investigative scrutiny focused on them, Markette observes. Or they worry referral sources will shy away from a whistleblower.

HHAs may want to consider filing a qui tam lawsuit. If the government joins the case, they could receive a financial reward. If not, the complaint can stay sealed.

Bonus: If you file a suit with a local qui tam lawyer, he then can't file suit against you (originating from an employee or competitor) due to conflict of interest, Markette points out.

Note: For advice on billing for patients from questionable referral sources, see a future issue of Eli's Home Care Week.