Home Health & Hospice Week

Will your billing pattern put you on the target list for suspension?

Medicare home care fraud made up the lion's share of charges in the feds' latest record-breaking fraud sweep nationwide.

The feds indicted 91 people in seven cities in Medicare fraud schemes totaling $492 million, the Department of Justice says in a release. That included $230 million in home care fraud. (See story, p. 287 for indictment details.)

In addition to formal indictments, the Cen-ters for Medicare & Medicaid Services suspended Medicare payments and took other administrative actions against 30 health care providers "following a data-driven analysis and based upon credible allegations of fraud," the DOJ says.

What is unclear is whether the providers CMS suspended are under indictment. The DOJ notes that "under the Affordable Care Act, HHS is able to suspend payments until the resolution of an investigation."

"Payments are routinely suspended whenever DOJ gets an indictment," points out William Dombi with the National Association for Home Care & Hospice.

But in the release, HHS Secretary Kathleen Sebelius says "HHS used new authority from the health care law to stop future payments to many of the health care providers suspected of fraud, saving Medicare resources and taxpayer dollars from being lost to fraud in the first place." At press time, CMS had not responded to inquiries for clarification on the suspensions.

Suspensions without an indictment, such as those in the Dr. Jacques Roy fraud case in Texas earlier this year (see Eli's HCW, Vol. XXI, No. 9), are more unusual, Dombi tells Eli.

But attorney Robert Markette Jr. suspects the DOJ is referring to just such suspensions, thanks to the references to data-driven analysis and credible allegations of fraud. "They are getting more comfortable with the idea of suspending payments" without an indictment or formal charges, says Mar-kette, with Benesch, Friedlander, Coplan & Aro-noff in Indianapolis.

Beware New Suspension Powers

Home care providers may have much to fear in CMS's suspension authority granted by the Affordable Care Act in 2010, but only recently implemented. The "credible allegations of fraud" required for the suspension are ill defined, Markette points out. That leaves it largely up to CMS's interpretation.

Federal law defines the term as an allegation from any source, "including but not limited to fraud hotline complaints, claims data mining, patterns identified through provider audits, civil False Claims Act, and law enforcement investigations," explains attorney Liz Pearson with Pearson & Ber-nard in Edgewood, Ky. "The allegations are supposed to have some 'indicia of reliability,'" she adds. "But that term is not defined."

CMS has said it will look at all the circumstances of the allegations and must consult with the OIG as to the suspension, Pearson relates. "Again, [there is] no indication of the substance of that 'consultation.'"

Don't forget: "If CMS suspends payments based on a credible allegation of fraud ... then the order goes out to the State Medicaid program to also suspend," Pearson adds.

The result: Markette compares the suspension authority to this: "We're going to execute you, then let you have a hearing." That's because cutting off a provider's cash flow will likely shut it down before it can resolve CMS's suspicions, he says.

Medicare can keep providers' payments suspended for 18 months while it investigates, Pear-son says.

Under these payment suspensions, the government treats providers more like they are guilty until proven innocent instead of the other way around, points out Tom Boyd with Boyd & Nich-olas in Rohnert Park, Calif.

Providers that face a faulty decertification have often undergone the same injustice, Markette notes. By the time they get the decertification reversed at the ALJ level, their agency has gone out of business.

At least if providers face formal indictment, they have certain procedural protections, Markette notes. Under the suspension authority, they seem to have few or none.

What is enough? Markette worries about what the government will use as evidence of fraud for suspensions. For example, HHS is emphasizing its enhanced data analysis to fight fraud. Will aberrant billing patterns alone be enough to land an agency on the suspension list? In the Dr. Roy case, 78 home health agencies were suspended just for accepting a certain percentage of referrals from a physician indicted for fraud.

According to the credible allegation definition, a hotline complaint could be enough to trigger suspension. That could "simply be a disgruntled em-ployee or competitor complaint," Pearson cautions.

Bottom line: "These new rules that were issued Feb. 2, 2011 provide CMS and the OIG great latitude in payment suspension," Pearson warns.

The OIG and DOJ have been advocating moving from a pay-and-chase model to one where fraud-fighting tools prevent money from going out the door based on fraudulent claims in the first place, Markette notes. The feds may see the suspension authority as a shortcut for achieving that goal.

"I think you can count on more use of the suspension power," Pearson agrees. "The government has been very vocal about wanting to stop the chasing after the money -- and this is one way to cut off the losses."

Take This Important Step

Providers need to be aware of this shift, Markette advises. An unusual billing pattern, even if it's perfectly legitimate, may not just put you on the radar for audits and medical review. Now it may land you under payment suspension.

Do this: Benchmark your billing stats to see where you stand and identify your risk areas, Markette counsels. For example, you can refer to the OIG's report on six questionable billing measures for HHAs to see whether you exceed its thresholds (see Eli's HCW, Vol. XXI, No. 29.)

Home care providers will continue to be targets ripe for suspension as long as they remain in authorities' crosshairs. For example, a new Govern-ment Accountability Office report notes that home health agencies made up 40 percent of the subjects investigated for health care fraud in sampled Medi-caid programs.

Note: The GAO report is at www.gao.gov/products/GAO-12-820.