Jim Flynn Shannon DeBra Bricker & Eckler LLP www.bricker.com Christine Kenney Quality Management Consulting Group www.qmcg.com OHIO HOSPITAL ASSOCIATION ANNUAL MEETING COLUMBUS, OH JUNE 13, 2016
Jim Flynn Contact Information jflynn@bricker.com 614-227-8855 Shannon DeBra sdebra@bricker.com 513-870-6685 Chris Kenney ckenney@qmcg.com 614-227-4865 2
Objectives Discuss ACA mandate for compliance programs Discuss risk areas related to post-acute care providers Discuss pressures on hospitals regarding readmissions Discuss how to pick post-acute care partners Tools for assessing post-acute care providers 3
Why Be Compliant? Agenda Evolution of Compliance Programs Risk Areas vis-à-vis Post Acute Care Providers/Recent Cases Pressure to Reduce Readmissions Picking Your Post-Acute Care Partners Evaluating, assessing and analyzing post-acute care providers 4
Compliance 5
Why Does the Government Care About Compliance? Health care fraud and abuse recoveries totaled $1.9 billion in FY 2015 983 criminal health care fraud/abuse actions in FY 2015 808 civil health care fraud/abuse actions in FY 2015 OIG investigations resulted in 800 criminal actions and 667 civil actions in FY2015 OIG excluded 4,112 individuals and entities in FY2015 New initiative to hold individuals accountable (Yates Memo September 2015) 6
Evolution of Compliance Programs Federal Sentencing Guidelines Health Care Organization Compliance Issues Laboratory Unbundling investigation of hospitals (early 1990s) Settlements (later known as corporate integrity agreements ) OIG Compliance Guidance ACA Mandatory Compliance 7
Those Dreaded 3 Letters: O I G HHS Office of Inspector General recommends voluntarily adopting compliance programs OIG issues first model compliance program for hospitals 1998 supplemented in 2005 OIG has subsequently issued similar guidance for other types of health care providers: Clinical laboratories Nursing Facilities Home health agencies Hospice DME 3rd party billing Ambulance companies Pharmaceutical Mfgrs Physicians But it was still voluntary in absence of a CIA 8
Enter the Affordable Care Act MANDATORY COMPLIANCE PROGRAMS! The Affordable Care Act (ACA) changed compliance programs from voluntary to mandatory see section 6401 Increased enforcement activity: Section 6402(i) of ACA and Section 1303 of the Reconciliation Act provide an additional $350 million for the Health Care Fraud and Abuse Control Fund to fight fraud, waste and abuse The LUCKY first provider type: Section 6102 of the Affordable Care Act mandates that SNFs adopt an effective compliance and ethics plan by March 23, 2013 9
The Affordable Care Act 6401 10
Affordable Care Act Compliance Program Requirements Section 6402(i) of ACA and Section 1303 of the Reconciliation Act provide an additional $350 million for the Health Care Fraud and Abuse Control Fund to fight fraud, waste and abuse No deadline for hospitals to establish a compliance program set yet No required elements or other guidance from CMS for hospitals yet For an idea of what s to come: - 8 Required Elements for SNFs - 6102 of the ACA - Proposed Rule for SNFs (proposed 42 CFR 483.85; 80 Fed. Reg. 42168 (July 17, 2015)) - Medicare Part C (Managed Care) and Part D (Prescription Drug Plans) Manual provisions (https://www.cms.gov/medicare/prescription- Drug-Coverage/PrescriptionDrugCovContra/Downloads/Chapter9.pdf) 11
OIG Compliance Guidance For Hospitals Publication of the OIG Compliance Program Guidance for Hospitals, 63 Fed. Reg. 8987; February 23, 1998 OIG Supplemental Compliance Program Guidance for Hospitals, 70 Fed. Reg. 4858; January 31, 2005 Available at www.oig.hhs.gov 12
Risk Areas vis-à-vis Post-Acute Providers (According to OIG) 13
Risk Areas vis-à-vis Post-Acute Providers (According to OIG) Patients Freedom of Choice This area of concern is particularly important for hospital discharge planners referring patients to home health agencies, DME suppliers or long term care and rehabilitation providers. In other words, tampering with patient s freedom of choice by hospital discharge planners steering patients to certain home health agencies, DME suppliers or long term care and rehabilitation providers. Financial Relationships with other Health Care Providers Does the hospital have any remunerative relationship between itself (or its affiliates or representatives) and persons or entities in a position to generate Federal health care program business for the hospital (or its affiliates) directly or indirectly? Persons or entities in a position to generate Federal health care program business for a hospital include, for example, physicians and other health care professionals, ambulance companies, clinics, hospices, home health agencies, nursing facilities, and other hospitals. 14
Risk Areas vis-à-vis Post-Acute Providers (According to OIG) Examine your hospital s financial relationships with health care providers to which the hospital refers patients Hospitals may refer patients to, or order items or services from, home health agencies, skilled nursing facilities, durable medical equipment companies, laboratories, pharmaceutical companies, and other hospitals. Scrutinize carefully any remuneration flowing to the hospital from the provider or supplier to ensure compliance with the anti-kickback statute such as: Free or below-market-value items and services The relief of a financial obligation. 15
Risk Areas vis-à-vis Post-Acute Example #1 Providers Free-staffing for referrals - For every x number of referrals the provider receives from the referral source, the provider will provide a full time nurse, aide, case manager or other worker to the referral source s facility. If you provide or receive staff for free or below fair market value to/from a referral source to perform the duties normally performed by the company s own staff, you are providing them with (or receiving) something of value staff. If even one reason for providing this staff is to induce referrals, it s a violation of the Anti-Kickback statute. Example #2 Nursing facilities aggressively recruiting hospital patients who are not appropriate for skilled care, generally by being vague about the nature of skilled care and emphasizing free custodial care 16
Risk Areas vis-à-vis Post-Acute Example #3 Providers A home health agency or nursing facility intake coordinator crosses the line and performs discharge planning services for the hospital. Including rounding with hospital staff or reviewing medical records for the purpose of identifying patients who need home health/skilled nursing services before the patient has been referred to the HHA or SNF. The hospital COPs require that the hospital provide discharge planning services, and the hospital is reimbursed for those services by Medicare and Medicaid. If a HHA or SNF employee provides the discharge planning services for free to the hospital, the free service is likely to be viewed as a possible kickback for the referral of the patient to the HHA or SNF. See Medicare PRM 2113-2113.5 for delineation of intake versus discharge duties 17
Recent Cases Involving Hospitals and Post-Acute Care Providers Dr. Kuchipudi and Sacred Heart Hospital March 2016 Chicago, IL Kingsbridge Heights Rehabilitation and Care Center June 2013 New York, NY More Headline-Making Conduct 18
'King of Nursing Homes' Convicted in Hospital Kickback Scheme March 2016 Chicago, Illinois - Evidence at Dr. Kuchipudi s trial revealed that he was one of Sacred Heart s most prolific sources of patient referrals. In exchange for his referrals, Sacred Heart provided Dr. Kuchipudi with free labor in the form of physician assistants and nurse practitioners. The free labor was provided not only inside Sacred Heart but also in Chicago-area nursing homes where many of Dr. Kuchipudi s patients resided. Sacred Heart allowed Dr. Kuchipudi to bill Medicare and Medicaid for the services of the physician assistants and nurse practitioners as if he employed them himself. Evidence at trial further revealed that Dr. Kuchipudi and Sacred Heart arranged for his patients to be transported long distances to Sacred Heart for treatment, even when the nursing homes in which they resided were closer to hospitals where Dr. Kuchipudi had privileges and which had more comprehensive facilities. 19
Bronx Nursing Home Owner Indicted on Charges of Paying Kickbacks to a Hospital Social Worker to Steer Patients to Nursing Home June 2013 New York, NY The estate of an indicted Bronx nursing home owner agreed to repay the NY Medicaid program $2.5M According to the Department of Justice the case involved an illegal kickback scheme whereby Rivera [hospital social worker] would steer patients discharged from Columbia Presbyterian Hospital to Kingsbridge [nursing home] in return for cash payments. [The nursing home owner] paid Rivera $300 dollars for every patient referred and admitted to Kingsbridge, plus a bonus of $1,000 for every ten patients. 20
In the Headlines 21
Pressure on Hospitals to Reduce Readmissions 22
Pressure on Hospitals to Reduce Readmissions 2010 Study showed that 1 in 4 patients admitted to a SNF was readmitted to the hospital within 30 days 30-67% of those readmissions likely could have been prevented through well-targeted interventions 23
Pressure on Hospitals to Reduce Readmissions Lack of Control of Certain Factors Physicians order admission Physicians order discharge Patient compliance with discharge orders Availability of appropriate, high quality post-acute care Physician follow-up after discharge 24
Pressure on Hospitals to Reduce Readmissions Who is most likely to be readmitted? Chronic conditions Less education Language barriers Fewer assets Depressive symptoms Impaired cognition Diminished physical functioning 25
Pressure on Hospitals to Reduce Readmissions In 2015, >50% of hospitals were penalized under the Hospital Readmissions Reduction Program Penalizes hospitals with 30 day readmission rates > national benchmarks up to 3% payment reduction $420 million in penalties in 2015 Readmission-based quality measures under Medicare Shared Savings Program ACOs Comprehensive Care for Joint Replacement Model bundled payment for episode of care Permits hospitals to share payments received from Medicare as a result of reduced episode of care spending and hospital internal cost savings Permits hospitals to require SNFs to share financial accountability for increased episode of care spending 26
Pressure on Hospitals to Reduce Readmissions Hospitals need help to avoid readmissions Looking to discharge patients to LTC facilities that will be partners in preventing unnecessary readmissions Work with post-acute care facilities to monitor care and support compliance with medication or therapy recommendations and avoid hospitalization Collaboration/Affiliations/Partnerships to create a seamless handoff Get to know the patient prior to discharge Ensure patients needs are fully met Ensure post-acute care provider has the right staff, services, equipment 27
Picking Your Post-Acute Care Partners Look for the differences! Do they have data to demonstrate high quality, efficiency, customer satisfaction? Do they have the ability to care for higher acuity patients more efficiently? What is their reputation? Have they demonstrated a willingness to create joint clinical protocols? Are they committed to coordinating care with the hospital? Is their EHR compatible with your hospitals HER so data can be shared? Do they track outcome data? 28
Picking Your Post-Acute Care Partners Look for the differences! What can they say about their ability to effectively manage certain health conditions in their facility? Do they have a willingness to implement specialized programs to care for patients with chronic conditions? How do they demonstrate their willingness to work with hospitals to effectively transition patients across settings? Have they proactively adopted programs that facilitate communication among providers? Have they proactively added (or, at a minimum, are they willing to add) physicians/nurses to treat certain conditions like pneumonia in the SNF? 29
Tools to Evaluate, Assess, and Analyze Potential Post-Acute Care Partners 30
Evaluate, Assess, and Analyze Post- Acute Care Providers Approximately 970 NHs in Ohio Approximately 93,000 NH beds Most are licensed Few hospital based units not licensed County NH not licensed Approximately 965 are certified Most dually certified for Medicare and Medicaid Few Medicare only certified About 5 (private pay only) Approximately 826 HHAs in Ohio 31
Patient Referral Resource No steering- Follow all laws regarding patient freedom of choice with respect to which facilities/providers are on your list of post-acute providers Can identify preferred providers based on quality Establish minimum standards for preferred providers Monitor to ensure standards being met Update referral resource timely Formalize partnerships define objectives Must identify affiliated providers with financial interest Receive no compensation for designation as a preferred provider 32
Nursing Home Inspections ODH licensure inspection New facility Increase in bed capacity Renovation or new addition CMS certification inspection (conducted by ODH) New certified facility Every 12-15 months Complaints Cited for deficiencies 33
Scope and Severity of Deficiencies Scope and severity system for rating deficiencies Used by all state survey agencies Surveyor determines level of harm and scope of the problem Alphabetic scope and severity level assigned to each deficiency F-L denote substandard quality of care for specified regulations 34
Scope and Severity Matrix 35
5 Star Quality Rating System Help compare NHs Rates each NH from 1-5 stars 5 star is much above average quality 1 star is much below average quality One overall star rating for each NH Separate rating for each area Health inspections Staffing Quality measures 36
Scoring for Health Inspections Health inspection Points assigned to alphabetic deficiency scope and severity Additional points for substandard quality of care and uncorrected deficiencies Life safety code deficiencies not included Top 10% in each state receive 5 stars Middle 70% receive 2-4 stars (23.33% in each) Bottom 20% receive 1 star Facility score held constant until a change in score for that facility 37
Rating based on Scoring for Staffing Total nursing hours per resident day RN hours per resident day Case mix adjustment Held constant for facility until new staffing data collected for that facility 38
Scoring for Quality Measures 20-100 points assigned to each quality measure based on facility s performance Top 25% of NHs receive 5 stars Middle 60% receive 2-4 stars (20% for each star) Bottom 15% receive 1 star 39
Medicare.gov Nursing Home Compare Find nursing homes - Nursing Home Compare Identify geographic area Select up to 3 NHs to compare General information Health and LSC inspections Staffing Quality measures Penalties Overall star rating Star rating for inspections, staffing and quality measures 40
Compare Nursing Homes 41
# Certified Beds Ownership type Sprinkler system CCRC In a hospital Resident council General Information 42
Health Inspection Information Last 3 standard inspections and complaint inspections during that time # of deficiencies compare to Ohio (5.2) View all health inspection reports to see each deficiency View full report surveyor notes For each deficiency Level of harm: 1-4 (corresponds to severity matrix: level 1 level 4) Residents affected: few, some, many (corresponds to scope matrix: isolated, pattern, widespread) 43
NH Compare Health Inspections 44
Staffing Information # of residents # of licensed nurse hours/resident day # CNA hours / resident day Compare with Ohio and National data 45
Quality Measure Information Information on how well NHs are caring for their residents physical and clinical needs Compare with Ohio and National data New measures added in April to be part of 5 star rating in July % of ssr who made improvement in function % of ssr who were re-hospitalized (Ohio avg 21.2%) % of ssr who had an outpatient emergency dept visit % of ssr who were successfully discharged to comm % of lsr whose ability to move independently worsened % of lsr who received anti-anxiety or hypnotic meds 46
Ohio Department of Aging Ohio long-term care consumer guide Inspection reports Satisfaction survey Facility location and affiliations Special care services on site Hospice, TBI, behavioral, dementia Services to non-residents Home health, adult day care Policies Beds and rates Staff 47
Consumer Guide
Medicare.Gov Home Health Agency Compare Find home health agencies Identify geographic area Select up to 3 HHAs to compare General information Services Provided Quality measures Pain management Wound care How often patients improved in various areas Preventing unplanned hospital care Overall star rating 49
Medicare.Gov Home Health Agency Compare Home Health Quality of Patient Care Star Rating Based on 9 Measures Process Measures: 1. Timely Initiation of Care 2. Drug Education on all Medications Provided to Patient/Caregiver 3. Influenza Immunization Received for Current Flu Season Outcome measures: 4. Improvement in Ambulation 5. Improvement in Bed Transferring 6. Improvement in Bathing 7. Improvement in Pain Interfering With Activity 8. Improvement in Shortness of Breath 9. Acute Care Hospitalization 50
Penalty Information Monetary fines for failure to correct deficiencies Payment denials for failure to correct deficiencies Not part of 5 star rating 51
Standards for Preferred Providers Minimum overall star rating Minimum star rating for health, staffing and quality measures Minimum # of deficiencies during most recent health inspection No IJ or substandard quality of care deficiencies Minimum staffing levels Minimum % of ssr rehospitalization No penalties Minimum resident/family satisfaction rating 52
Final Thoughts Compliance Issues to Keep In Mind Beneficiary Freedom of Choice Anti-Kickback Statute Watch your relationships Get legal advice to avoid fraud and abuse compliance issues Do Your Research Not all post-acute care providers are created equal Use the data that is publicly available 53
Questions? Jim Flynn 614-227-8855 jflynn@bricker.com Shannon DeBra 513-870-6685 sdebra@bricker.com Chris Kenney 614-227-4865 ckenney@qmcg.com Bricker & Eckler LLP www.bricker.com QMCG www.qmcg.com 54