Home Health & Hospice Week

Regulatory requirements aren’t catching the real criminals, attorney argues.

Since the HHS OIG lists home health fraud as one of its “priority areas that require HHS and State improvements,” you’d expect its latest unimplemented recommendations report to be full of ideas on how to combat the problem, right? Wrong.

In its newly released “Compendium of Unimplemented Recommendations,” the HHS Office of Inspector General singles out “reducing home health fraud” as one of the priority areas on which it continues to focus, along with opioid abuse, Medicaid fraud, and other red flag areas. But the report doesn’t list a single unimplemented recommendation for HHS, the Centers for Medicare & Medicaid Services, or other federal agencies to take in this supposed high-risk area.

In contrast, the report lists multiple recommendations for hospice providers ranging from revamping payments for nursing home residents to requiring prepayment review for long GIP stays (see story, p. 157).

Why the disconnect? In home health, the feds have “focused significantly on ‘fraud and abuse’ — and they define that term in an overly broad fashion — for many years,” believes attorney Robert Markette Jr. with Hall Render in Indianapolis. “The problem they are having now is that the erroneous claims are, in most cases, related to the extreme difficulty in meeting reviewer expectations, not that the providers are committing fraud.”

For example: HHH Medicare Administrative Contractors reported average denial rates of up to 62 percent for Round 1 of the Probe & Educate campaign, under which MAC reviewers scrutinized five claims from every HHA nationwide with a focus on face-to-face physician encounter requirements (see Eli’s HCW, Vol. XXVI, No. 3). Many of the F2F denials “were likely all legitimate care provided to legitimate patients, but they are considered ‘fraud, waste and abuse’ for failing to comply with a standard with which nobody appears to be able to comply,” Markette fumes.

For fiscal year 2016, Medicare home health services had a 42 percent improper payment rate with the program paying $7.7 billion improperly, the Government Accountability Office noted in a recent report outlining physician documentation problems for home health and durable medical equipment (see Eli’s HCW, Vol. XXVI, No. 16). That was down from a 59 percent error rate in 2015.

And Pre-Claim Review non-affirmation rates started out as high as 80 percent, although by January CMS reported non-affirming only about 8 percent of requests.

High denial rates show “that the ongoing effort to curb fraud and waste through new regulatory and documentation requirements is failing,”

Markette argues. “Error rates as high as we see in home health are, in my opinion, clear proof that the documentation standards and reviewer standards are ill conceived, poorly understood, inconsistently applied and, as a result, needlessly punishing home health providers.”

One reason there are no unimplemented recommendations from the OIG is because CMS has “reduced reimbursement, changed therapy reimbursement bonus payments, revised F2F, revised homebound status, etc.,” Markette notes. At this point, the OIG is “out of ideas.”

Flaw: “All of these changes have simply made it harder for providers to comply,” Markette maintains. “It has also allowed CMS to recoup reimbursement paid for services paid to providers for services that they actually provided to truly eligible patients who had a medical need for the care. These changes are doing more to limit legitimate access to home health than to stop fraud.”

As for outright fraud, “these changes have not stopped the criminals,” Markette says. “As new recommendations are implemented, they simply fake whatever documentation they need.”

Instead of setting up nigh impossible regulatory hoops for HHAs to jump through, the feds should simply investigate and prosecute criminals who often are providing no care at all, Markette argues. Perhaps the latest compendium is a sign of that attitude change from the feds, he hopes.

Note: See the compendium at https://oig.hhs.gov/reports-and-publications/compendium/files/compendium2017.pdf.