David C. Marshall, Esquire Latsha Davis & McKenna, P.C. PHCA/CALM Annual Convention November 11, 2015 The federal government expects Medicare and Medicaid providers to be self-policing A corporate compliance plan is an expectation, and, in the case of SNFs, a mandate The OIG provides periodic and annual guidance on risk areas for various types of providers Model Compliance Guidance OIG Reports OIG Annual Work Plan It is incumbent upon an organization s corporate compliance officer to review and understand the risk areas identified not only by the government, but also within the industry itself, so that the organization can evaluate its operations and prevent/detect compliance issues 2 Identify the 10 most significant risk areas for SNF/NF operations in 2015-2016 Review self-auditing/monitoring techniques to evaluate a SNF/NF provider s compliance with those risk areas Provide strategies for assessing and responding to compliance issues Discuss basic reporting/self-disclosure requirements 3 1
Department of Health Department of Human Services Department of Aging Centers for Medicare and Medicaid Services Office of the Inspector General Department of Justice Office of the Attorney General MACs, MICs, RACs, ZPICs Whistleblowers Office of Civil Rights 4 Documentation Issues Documentation is the key to compliance; Virtually all cases turn on whether the requisite documentation is available Timeliness Accuracy No backdating Use proper forms Incomplete or illegible records IF IT WASN T DOCUMENTED, IT WASN T DONE! 6 2
Physician Certifications and Recertifications Medicare Part A pays for post-hospital skilled nursing care when a physician certifies that a beneficiary needs daily skilled nursing or rehab services that can only be provided on an inpatient basis in a SNF and that care is/was needed for a condition which the individual received inpatient care in a participating hospital Physician certification must be obtained at admission or as soon thereafter as is reasonable and practicable Recertifications are required within 14 days of admission and every 30 days thereafter Recert must indicate: Reasons for the continued SNF care; Estimated time that the beneficiary will need to remain in the SNF; and Plans for home care, if any 8 The regulations do not mandate a specific form Best practice is to develop and use a set form that captures all of the cert/recert elements Through case law decisions, the ALJs have held that other contemporaneous documentation which addresses the cert/recert elements can serve as substitute documentation for a formal cert/recert form Condition of Participation vs. Condition of Payment issues Medical Necessity is irrelevant Real life examples RACs are focused on this issue This is a low hanging fruit compliance issue that is easily audited 9 3
Therapy Issues Level of therapy services indicated affects the RUGs, which in turn determines the payment received The more acute a resident s therapy needs and the more therapy minutes provided in assessment periods to determine RUG rates, the higher the resident s RUG rate and the higher the SNF s reimbursement Both the OIG and CMS are skeptical of the accuracy of assessments that result in higher levels of coding OIG has found that SNFs have increasingly billed for the highest level of therapy even though the beneficiary characteristics remained the same Many residents receiving only the minimum minutes to qualify CMS is exploring potential alternatives to existing payment methodology Sept. 2015 OIG Report calling for re-evaluation of SNF PPS system 11 Potential Alternatives CMS is exploring to existing payment methodology: FY 16 President s budget included a legislative proposal requiring reduction to the market-basket updates for SNF payments beginning FY 16. Conducting a project to study and evaluate SNF therapy payment options. Will work to monitor SNF billing and target SNFs that rarely bill for changes in therapy or frequently use therapy assessments incorrectly for education and claims review. Will consider the feasibility of refining the Fraud Prevention System to support the monitoring of SNF billing. 12 4
Government has initiated several significant False Claims cases involving therapy in SNFs Main allegations across all: Providing unneeded care or unnecessarily extending resident stays to continue to provide therapy that residents allegedly did not need Billing for care that was not actually provided Billing for therapy care that was not skilled Providing care to residents who could not tolerate the care, could not benefit from it or both Ramping up care provided during assessment periods, which would then allow for higher RUG rates and higher reimbursement following those assessment periods, regardless of the minutes actually provided after the assessment periods Clustering therapy sessions ordered for 3x/week around weekends, which inaccurately implied that residents were receiving treatment 5x/week, which is reimbursed at higher rate 13 What to do? Must be able to document the medical need for therapy; timeliness/compliance for physician orders/certifications; the actual provision of therapy consistent with physician order, including duration of time of therapy services; the level of therapy provided, indexed to resident ADLs to justify placement in appropriate RUG category Need to address these issues with contracted therapy provider, or ensure with in-house therapy Are you a PEPPER outlier here? 14 Contractual Compliance Issues 5
Anti-Kickback Primer Prohibits the knowing and willful, direct or indirect, solicitation, offer, payment or receipt of any remuneration in order to induce or reward the referral or purchase of items or services to be paid for by federal health care programs AKS impacts everything, from billing, to cost reporting, to contracting, to structuring Joint Venture relationships How easy is it for the government to review your contractual arrangements? 16 Key Points Applies to anyone who offers, pays, or accepts kickbacks Not just vendors Applies to both sides of a transaction/arrangement Voluntary Safe Harbors If all elements of a Safe Harbor are met, the arrangement will not be prosecuted Transactions not meeting all elements are not per se illegal, but subject to a facts and circumstances analysis Intent element Knowing and willful what does that mean? 17 Safe Harbors that come up most often in SNF/Vendor contracts: Personal Services and Management Contracts Discounts 18 6
Personal Services and Management Contracts Safe Harbor Signed writing Covers all of the services provided for the term and specifies the services to be provided Term of at least one year Compensation paid is set in advance consistent with FMV not determined in a manner that takes into account the volume or value of referrals Services to be performed don t involve the counseling or promotion of a business arrangement or other activity that violates any Federal or state law Serves a commercially reasonable business purpose 19 Stark Primer Prohibits a physician from referring Medicare patients for designated health services (DHS) to an entity with which the physician (or an immediate family member) has a financial relationship Also prohibits the DHS entity from submitting claims to Medicare for those services resulting from a prohibited referral 20 DHS includes Lab services PT, OT and ST Radiology DME Inpatient and outpatient hospital services 21 7
Key Points Applies only to physicians (and their immediate family members) Applies only when there is a financial relationship between a physician (or immediate family member) and an entity furnishing designated health services Must meet an exception Strict liability intent doesn t matter! 22 Financial relationship exists when physician has a direct or indirect ownership or investment interest in, or a direct or indirect compensation arrangement with, an entity that furnishes DHS Compensation arrangement includes any contract between the physician and a DHS entity that involves payment SNF Medical Director relationship triggers Stark Financial relationship Medical Director makes referrals for DHS to the SNF and SNF vendors providing those services Absent satisfaction of an Exception, all referrals from the Medical Director would be tainted 23 Personal Services Exception Signed writing that specifies the covered services Covers all of the services to be provided by the physician Aggregate services don t exceed those that are reasonable and necessary for the legitimate business purpose of the arrangement Term of at least one year Compensation is set in advance doesn t exceed FMV is not determined in a manner that takes into account the volume or value of referrals (except in the case of a physician incentive plan) Services to be performed don t involve the counseling or promotion of a business arrangement or other activity that violates any Federal or state law 24 8
HIPAA Privacy and Security Issues OCR audits are coming! OCR will soon begin auditing covered entities for compliance with the HIPAA Privacy and Security Rules Time frame and scope currently unknown Conducting a Risk Assessment is imperative Assessment tool found on OCR website Rule requires periodic risk assessments 26 HIPAA law now has a whistleblower component HITECH rule permits workforce member disclosures of PHI to proper oversight authorities provided that: The workforce member or business associate believes in good faith that the covered entity has engaged in conduct that is unlawful or otherwise violates professional or clinical standards, or that the care, services, or conditions provided by the covered entity potentially endangers one or more patients, workers, or the public The provision protects covered entities from significant fines and penalties from HHS s Office for Civil Rights in the event a whistleblower s accusations are determined to be unfounded. 27 9
Use of mobile devices HHS Wall of Shame shows that since the breach reporting requirement became law, 369 reported thefts or losses of laptops or other portable electronics HHS/OCR takes particular interest in these types of cases In 2014, Concentra paid HHS $1,725,220 to resolve potential violations stemming from stolen laptop OCR says, Encryption is your best defense 28 Employing and Contracting with Excluded Individuals Effect of exclusion is that no Federal health care program may pay for items/services Furnished by an excluded person or Directed/prescribed by an excluded person Even if the excluded individual receives no payment (i.e., physician working as a volunteer) OIG Bulletin (May 2013) Prohibition on payment includes items/services beyond direct patient care i.e., transportation, administrative, and management services Applies when person furnishing items/services either knows or should know of exclusion Consequences of violating the exclusion CMP of up to $10,000 for each claimed item/service + assessment Denial of reinstatement to Programs Civil actions or criminal prosecutions 30 10
Licensure lapses, suspensions, revocations, etc. License revocation or suspension gives the OIG the discretion to exclude a provider Failure to repay student loans can also equal exclusion State licensure implications To mitigate liability: Check LEIE and state databases prior to employing or contracting and on a monthly basis thereafter If relying on a contractor to screen, request and maintain screening documentation from the contractor Include provisions in employment applications and contracts with thirdparties that require the employee or contractor to Confirm that they re not excluded and that they have all required licenses Indemnify you for any misrepresentation of their exclusion/licensure status Notify you immediately if they become excluded or if their license is revoked, suspended, etc. 31 Quality of Care Issues Provision of care to SNF residents is measured against the requirements of participation via the survey process. A facility that submits claims for payment to the government for services that have repeatedly been deemed substandard (as evidenced by repeated deficiencies), has arguably submitted false claims under government theory. Historically, government has pursued this theory only where repeated deficiencies have led to death or serious bodily injury to residents 33 11
Cases Pressure sores Ulcers Nutrition/weight loss Burning water Low Staffing Worthless vs. Worth less services Importance of conducting mock surveys, following through with QA Committee reviews/recommendations 34 PEPPER Reports What is PEPPER? Program for Evaluating Payment Patterns Electronic Report Data report that summarizes a provider s Medicare claims data statistics in areas that may be at risk for improper Medicare payment due to billing, coding and/or admission necessity issues Compares a provider s claims data statistics with aggregate statistics for other providers in the state, MAC/FI jurisdiction and the nation. Providers with high billing patterns (at or above the 80th percentile) are identified as outliers and are considered at risk for improper Medicare payments 36 12
SNF Target Areas Therapy RUGS with high ADL Nontherapy RUGs with high ADL Change of therapy assessment Ultrahigh therapy RUGs Therapy RUGs 90+ day episodes of care Risk of failure to follow-up on identified issues 37 Identification and Return of Overpayments An effective compliance plan means that you will conduct self-audits, including billing audits, and inevitably, a billing issue will be found. The ACA requires providers to return monies to the government within 60 days of identification When is an overpayment identified? An overpayment is identified when a provider is put on notice of a potential overpayment 60 day clock begins to run when the issue is identified Overpayment amount does not need to be fully identified see Kane ex rel. United States v. Healthfirst, Inc., 2015 U.S. Dist. LEXIS 101778 (S.D.N.Y. Aug. 3, 2015) 39 13
MACs developing their own reporting forms for return of identified overpayments Disclosures to MAC vs. OIG/DOH/CMS 40 Medicare and Medicaid Revalidations and Required Updates Medicare and Medicaid revalidations are required under the ACA Same process as enrollment (i.e. 855A for Medicare, DHS Enrollment Application for Medicaid) Medicaid Revalidation with DHS Must be revalidated by March 24, 2016 This is not the due date for submission; The review must be complete by this date Failure to comply with revalidation can result in denials of payment or, ultimately, termination of enrollment 42 14
Remember the events that trigger reporting obligations: Change of Ownership Change of Management Change of Information Revalidation Know the timelines for filing Consequence of failing to report or to follow up Deactivation of billing privileges Termination from program 43 David C. Marshall, Esq. Latsha Davis & McKenna, P.C. 1700 Bent Creek Boulevard Suite 140 Mechanicsburg, PA 17050 Phone: (717) 620-2424 Email: dmarshall@ldylaw.com 45 15