Home Care Law Blog

Home Care Law Blog receives some more recognition

I don't usually like to talk about myself.  (Okay, those of you who know me don't need to point out that that statement may not be entirely true.)  However, I do try to keep this blog about the industry, but yesterday I received an e-mail notifying me that this blog had been selected as one of the Top 50 Hospice Care Blogs.

It's always nice to receive a little recognition, but I thought you might be interested in the whole list, not just my place on it.  There are a number of blogs, especially from the caregiving perspective, that you might find interesting.  (Or you may already know about.)  

NIOSH Issues Home Healthcare Occupational Hazards Review

The National Institute for Occupational Safety and Health ("NIOSH") just issued its Home Healthcare Occupational Hazards Review.  The Review concludes that one of the biggest risk areas for home health care workers is for musculoskeletal Disorders due to transferring patients.  This likely does not come as a huge surprise to anyone who has worked in home health, home care, or hospice care for any period of time.  Lifting patients, moving patients, etc., can all lead to back and other injuries for homecare workers.  The review discusses a number of "interventions" designed to help reduce the risks to employees.

The article states that while using two trained employees to transfer patients can reduce the risks of injury, it does not reduce the risks sufficiently.  NIOSH advocates a "zero lift" policy.  This policy grows out of a study performed at seven nursing homes and one hospital in which patients were lifted or transferred only with the use of appropriate equipment.  This led to significant reduction in employee injuries.  NIOSH concludes that "[w]henever possible, devices should be used to help with patient transfers."  This is a good point, but the authors seem to have overlooked a key problem - home health and facilities are different - they go into a patient's home and often rely upon the equipment the family has obtained.  For example, a patient may have a hoyer in the home, but refuse to allow the agency to use it or not have sufficient slings.  (The family has one sling to use for showering, but after the shower, there are no dry slings.  So much for the hoyer.)

The article discusses a number of ergonomic devices an agency can use (it even has pictures) as well as other strategies.  For example, using a rolling toileting/shower chair reduced the number of patient transfers from six to two.  Properly identifying equipment for the patient, and considering the patient transfer issue when assessing and care planning can reduce the number of times your employees have to lift the patient.  This reduces the potential risk of injury.

One thing I do think the article gets right is the suggestion to consider these assistive devices during care planning.  You might consider if the patient would be able to obtain some of this equipment through Medicare/Medicaid.  The provider may not be able to afford it, but if the patient can obtain it through Medicare/Medicaid, it would be beneficial for the patient, family, and agency to obtain them.  Working with the family in this fashion and helping them to understand the importance of this type of equipment and to obtain the equipment benefits everybody.

The review also touches on other areas of risk including latex allergies, exposure to bloobdorne pathogens, occupational stress, violence, infectious disease, animals, hygiene, and other risks. 

The review is worth reading, if for no other reason, than as a tool to review and rethink your safety policies and procedures.  There are a number of interesting studies they cite and statistics on occupational safety.  You may not agree with all of it, but it might give you a few ideas that reduce employee on the job injuries (and your worker's comp claims.)  It also has a multiple page "Chekclist" that you can use as an worker safety assessment tool.   Going through the checklist will help you to see how your current safety plans compare to what NIOSH thinks you should have.  This will help you to identify any  deficiencies so that you can correct them.

Providers ask FTC for Exception to Red Flags Rule

On Friday, a four trade associations for health care professions issued a press release announcing that they had requested the FTC specifically exempt members of their organizations from the Red Flags Rule.  You can read their letter here.  This group includes the American Dental Association, the American Medical Association, the American Osteopathic Association, and the American Veterinary Medical Association.   

This request is based upon a recent federal court ruling that found the Red Flags Rules do not apply to lawyers. This ruling came out of a lawsuit filed by the American Bar Association(Hey, We control Congress and The courts, you didn't think lawyers would really have to comply did you?)  These providers argue that the court's rationale for excluding lawyers applies equally to them.   This makes sense, because the court determined that lawyers did not fit the definition of creditor and that it appeared the FTC was attempting to regulate monthly invoice billing.   Personally, I think the judge is correct.  

The ABA case and the AMA letter are worth keeping an eye on in the coming months, because the same rationale would apply to home health, hospice and private duty providers.  The FTC's rationale has always been that invoice billing amounted to an extension of credit which made you a creditor.  If a lawyer does not become a "creditor" by virtue of invoice billing, it is hard to see how a home health agency, hospice, or private duty provider would.  Hopefully, the court ruling and pressure from the AMA and others will lead the FTC to dial back the rules.

Some privacy advocates are lamenting the AMA's move in this case.  They think the Red Flags Rule is another needed tool to protect patients from the loss or disclosure of information that leads to identity theft.  In my opinion, this is not as big of a concern as some might think.  

The Red Flags Rule is more about detecting indicators of identity theft than protecting patient information from loss.  Safeguarding and securing patient information is addressed by HIPAA.  Regardless of what happens with the Red Flags Rule, HIPAA will still be in place and still require providers to protect patient's PHI. In addition, HIPAA's effectiveness has been enhanced, due to the new breach notification requirements, expansion of business associate coverage and the much steeper penalties allowed.  Increased HIPAA enforcement alone will do a great deal to curtail disclosure of patient information that leads to identify theft.  

Limiting the application of the Red Flags Rule as the AMA is requesting will not lead to less security of patient's PHI.  

Health Care Fraud in the News Again

Last week, the President hosted a Medicare Fraud summit to evaluate new ways to combat Medicare Fraud. During the summit, one of the attendees noted that he government "cannot prosecute its way out of the Health Care Fraud problem."  On the heels of the summit, the Administration announced its FY 2011 budget.  The budge includes $1.7 billion for Medicare Fraud enforcement.  This money will be used for a number of efforts:  it will more than double the Health Care Fraud and Abuse Control discretionary funding, it will expand the DOJ/HHS joint strike force efforts, it will provide for better data sharing, and increase oversight and prevention.

The data sharing plan is discussed more fully here.  Essentially, Medicare is continuing its efforts to consolidate all of its claims data into one place.  Then they can use datamining techniques to look for patterns in the data.  In the statement, Secretary Sebelius mentions the use of benchmarking to identify questionable practices.  I have mentioned this plan on this blog before - essentially, they will use the data to identify providers/areas with questionable practices and then focus on these providers.  This allows them to "target" their investigations.  

Of course, smart criminals will account for this and strive to keep their billing within certain parameters or go wild, get as much as they can as fast as they can and get out before the investigators arrive.  (I don't mean to be negative, but my my years doing primarily criminal defense led me to conclude that "locks only keep honest people out.")  Another area they might focus on more is in the area of enrollment and controlling who gets into the system.  OIG mentioned this twice in testimony to Congress this year.  Although as with every other anti-fraud system, criminals can manipulate this one as well.  (Although as you make it harder and harder on the criminals, Medicare stops being "easy money.")

It is not clear how effective this will be, as one of the main topics of the Fraud Summit was the amount of fraud that is still being perpetrated on the Medicare/Medicaid system, even after the government's recent efforts to crack down on fraud. One speaker commented that the recent successes is simply the "low hanging fruit".  He was implying that there is much more fraud to be identified and stopped. Another issue that raises questions about the effectiveness of the programs is the statistic mentioned in the USA Today article - for all the additional fraud enforcement efforts, prosecutions are only up 2%.   

Regardless of whey prosecutions are only up 2% over last year, the real point from all of these articles is that HHS and the DOJ are continuing to ramp up their MEdicare fraud enforcement efforts.  This should serve as a warning to everyone in the home health and hospice industries.  The HHS/DOJ strikeforces and HHS in general are already focused on you.  They are now adding to the resources at their disposal to investigate and prosecute Medicare fraud.  

This means you should be focusing even more on your compliance efforts.  Given the ever increasing focus on reviewing claims data, a good place to start is auditing and monitoring your claims.  Are there any reasons your claims might stand out?  Do you have a large number of outliers?  Does your documentation support your billing practices?  These are the kinds of questions you should be asking yourself, especially now that you know what they will be looking at.  If you have not looked at your compliance plan in a while (or longer) now is an excellent time to start.  Fraud and Abuse enforcement is only going to become more aggressive in the future.  The time to prepare is now.

HIPAA Security Breach Rule Deadline Just Around the Corner

With everything else that has been going on - the holidays, health care reform, etc. - you may have forgotten that the HIPAA Security Breach Notification Rule deadline is February 22, 2010.  With less than a month before the deadline, many providers may not have started their compliance efforts yet.  If you don't recall what the Security Breach Notification Rule says or requires, you can take a look here and here.   

If you haven't started working on this yet, you still have close to a month, so don't panic.  You should begin looking at this issue and putting together a timeline for compliance by February 22.  You may have already addressed breach notification, due to state law requirements.  If so, you can start by reviewing what notification policies and procedures you have in place and comparing them to the notification rules requirements.  

If you do not have any notification procedures in place, I would recommend reconsidering the reasonableness of encryption as your first step.  As part of your original Security Rule compliance efforts you should have assessed the reasonableness of encryption.  At that time, you may have determined it was not reasonable to implement.  If you go back and revisit this consideration, the advances in technology, combined with the incentive of avoiding the notification issues, may change your assessment.

If you implement encryption, you eliminate the notification provisions, because you do not have any unsecured protected health information. Don't forget that the encryption guidance from HHS includes guidance on destroying PHI.  If you are not properly destroying old files, you still have a source of unsecured PHI and would still need notification procedures.

If you do not implement encryption, you need to implement notification policies and procedures.  There are a few things you should consider when implementing notification.  For example, you are required to provide a way for the individuals who are affected to contact you for more information.  Who will be responding to these calls.  You need to be sure that whoever is fielding contacts about the breach is comfortable dealing with the public (and potentially the press), understands what they can and cannot say and will stick to that.  You do not want your point of contact to create any more problems for you by giving bad answers.

Another thing to consider now - if you use the toll-free number contact option, how do you want to set up the call-in number?  If you already have a toll-free number, you may not want to just use it as the contact number in the event of a reportable incident.  Depending upon the number of individuals involved, this may make it difficult to take normal business calls and may result in someone fielding questions that you would rather not have fielding questions.

You will want to be sure to get everybody who would be involved in detecting and reporting a breach involved in training.  Everyone should know that on February 22, you have new policies and procedures going into effect and what this means.  There is no point to having these new policies and procedures if no one is aware of them or understands them.

Remember - even if you have not started working on this yet, there is still time.   You just need to be sure that you use this last month wisely - develop a plan, set deadlines and stick to them.  This is not at all like implementing HIPAA compliance from scratch, so try not to let this ruin your weekend - just don't forget about it come Monday.    (Another resource you might consider is this template my partner put together.  I apologize for the shameless plug, but if you haven't started yet, you could probably use the assistance.)

The RACs are coming

Well, it has taken some time, but the Recovery Audit Contractors have finally started posting issues that relate to home health and hospice. 

Health Data Insights, the Region D Recovery Audit Contractor (Region D covers: "Alaska, Arizona, California, Hawaii, Iowa, Idaho, Kansas, Missouri, Montana, North Dakota, Nebraska, Nevada, Oregon, South Dakota, Utah, Washington, Wyoming, Guam, American Samoa, and Northern Marianas).  Has posted three issues related to hospice and home health.  One issue (Hospice Related services) was approved last September, the other two issue have been approved since December 22, 2009.  They all apply to claims billed after October 1, 2009

HDI has added two hospice related issues:  DME while in hospice and Hospice Related Services - B.  For both of these, Health Data Insights  explains that:"Services related to a Hospice terminal diagnosis provided during a Hospice period are included in the Hospice payment and are not paid separately."  The RAC will be looking at claims for DME and "Related Services" paid for separately by Medicare during a hospice admission.  Obviously, if it is equipment and services related to the terminal illness and was paid for outside of the hospice reimbursement, Medicare should not have paid for it again.

This audit will likely be triggered by an automated review.  They can churn through the numbers and identify claims submitted by non-hospice providers during a hospice episode. Whether or not a repayment is owed depends upon whether the claim is for DME or services related to the terminal illness.  The RAC cannot determine that simply by an automated review.   I say this, because, as anyone who has dealt with a hospice patient in a nursing home realizes, the question of what is and is not related to a terminal illness can often be disputed.  It requires looking at the documentation for the additional services and comparing to the terminally ill patient's diagnosis and needs.  Of course, if the hospice and the DME or other service provider both list the same illness, the issue becomes much simpler.

Health Data Insights has also added issues related to home health.  This issue is titled "Medical Supplies and Consolidated Billing".  Like the Hospice issue, this is an effort to identify services or supplies covered by the PPS episodic payment that were paid for separately.  For example, a patient receives physical therapy during a home health episode from a provider other than the home health provider - that is covered under the episodic payment and should not be billed separately.  This is another issue where the RAC can churn through the numbers and identify overlapping claims.  This is one that is actually easier for the RAC, because certain supplies and services are covered by the episodic payment, without much room to quibble.  (It's not like hospice where hospice patients can have other medical issues.)

Home health and hospice providers should be looking at their claims and trying to identify situations where other providers claims overlap for services that are covered under the payment they receive.  The RAC may pursue the entity that provided the additional service (which seems like the correct response to me), but they may come after the HHA or Hospice.  The best course of conduct is to attempt to avoid these overlapping claims.

Now that one RAC has identified home health and hospice issue, the others won't be too far behind.  You may expect to start seeing letters form the RAC (in region D at least for now).  When you receive a request for information, be sure to respond promptly.  One of my favorite statistics from the RAC demonstration was the percentage of claims recouped simply because the provider failed to provide documentation.  You should never have to pay back money because you just did not respond in time.  The government already pays you too little and routinely asks for more back - don't help them out by not being ready for the RACs.

The Massachusetts Election and HomeCare and Hospice

Well, by now, I am sure you are all aware that Scott Brown won in Massachusetts.  This is not a political blog, per se, but the news this morning is covering how Scott Brown's election will effect the passage of a number of bills that are of concern to the home health, private duty, and hospice industries.

The first issue getting a lot of attention is whether or not Scott Brown's victory is the death knell of health care reform.  Many Democrats appear to be signaling that it is time to back away from the current bills and rethink health care reform.  This article also has some great quotes about the status of health care reform after last night.   Some Congressional Democrats are saying everything should be put on hold until Scott Brown is sworn in (you can read that story here).  Barney Frank was quoted as saying they may need to start over.  Susan Collins even specifically mentioned starting over and getting away from a bill that included the steep cuts to Medicare.  These articles give a pretty strong impression that the current bills, which were terrible for the home health industry are dying, if not completely dead.  If this is the end of health care in its current form (which seems likely) the election last night may have saved the home health industry from the draconian cuts proposed by the House and Senate.

Of course, this is not done yet.  Providers need to keep a close eye on what is happening.  Until the bills are officially scrapped and Congress starts over, the cuts are not dead.  Furthermore, if Congress starts over, the home health industry will need to keep a close eye on what they propose and, if necessary, be ready to respond loudly and clearly (you may find your representatives more willing to listen now).  Based on today's reports, it seems that health care reform may ultimately go forward, but in a much different fashion.  If so, home health providers may be able to breathe a sigh of relief that the $55 billion dollars in cuts will not happen.   

Another area of interest to the home health, private duty, and hospice industry is the Employee Free Choie Act.  At least two outlets (here and here) are predicting that the election of Scott Brown is the end of the Employee Free Choice Act for this year.  Scott Brown was clear in his campaign that he was opposed to the EFCA.  This is another bit of great news for the industry. (Although it is only a prediction.)  This aspect of the election has not gotten much press, because of the focus on health care reform, but it appears that with the election of Scott Brown, supporters of the EFCA no longer have the votes they need to pass the bill. 

[There was an interesting side note during the campaign in Massachusetts.  SEIU members were out campaigning for Brown while SEIU's leadership was campaigning for Coakley.  Here is the video.  

This video says a number of things, but I like to think it shows that  the union's leadership is out of touch with its members.  Always a good point to raise when in the midst of a union campaign.)

First AG to sue under HITECH Act HIPAA Amendments

Yesterday, the Connecticut Attorney General announced it has sued Health Net of Connecticut for a security breach involving 446,000 Connecticut enrollees.  The Connecticut AG is using the authority provided to state AGs to enforce HIPAA under the HITECH Act.  You can read more about the case here.  

This is likely the beginning of a new trend of state level HIPAA enforcement.  As with previous "new waves" of health care regulatory enforcement, the enforcers are starting with a rather egregious case.  (At least in terms of number of people impacted.)  Now that Connecticut has taken the first step down this road, it will be interesting to see when other states follow suit.  It will also be interesting to see if the states pursue anything other than the largest breaches under this new authority.

The scope of breaches the states are willing to purse will be especially interesting to the home health and hospice community.  If, due to lack of staffing, etc., states only pursue the larger breaches, many home health and hospice providers may not have to worry about state AG enforcement.   In my opinion, this is likely to be the case initially, but as time goes on you will see the states become more accustomed to enforcing privacy in this fashion and they will devote more resources to this effort.  This will lead to broader enforcement.

For now, the main point is that we have now seen the first AG suit under the HITECH Act.  More suits are certain to follow.  This means that after years of moderate to non-existent HIPAA enforcement, HIPAA enforcement is on the rise.  If you have not considered your HIPAA compliance efforts recently, now is a good time to go back and review.  You want to be sure you are in compliance now, before enforcement really swings into high gear.

Senator Kerry Continues Efforts on Behalf of Home Health Care

On Monday, Senator John Kerry sent a letter to Harry Reid, Max Baucus, Christopher Dodd, and Tom Harkin, urging them to "protect access to home health care" as they work to finalize health care reform legislation.  You can download the letter here.  The letter mentions that if the House cuts are enacted, by 2011 more than two-thirds of home health providers will be reimbursed for services at a rate that is less than the cost of care.  The letter does not state it explicitly, but the conclusion to be drawn is two-thirds of the Medicare home health providers will either go under completely or pull out of Medicare.

Unfortunately, the letter goes on to mention the Senate's proposed cuts as a "responsible level" for home health care cuts.  I continue to maintain that the Senate's cuts are very damaging to the industry, but I will concede they are less severe than the House's proposed cuts.  They are also phased in over a longer period of time, which gives providers more time to adjust (or retire).  Unless health care reform gets completely derailed (which, in my opinion, is the best outcome), the Home Health industry is going to end up with cuts.  The Senate bill simply denotes the floor of those cuts.

Today, in Roll Call, there was an article stating that the negotiators are facing real difficulties.  Due to this problem, they are not likely to have a final bill until February.  Some are indicating it may be even later than that.  This means there is still time to educate your representatives and Senators.  I know I keep beating a dead horse, but I fear that many in the home health industry may have simply accepted that these cuts are inevitable.  Ultimately, we may see these draconian cuts enacted, but as long as the bill is stalled on the Hill, you can continue to make noise.

Some of Senator Kerry's points in his letter are worth noting to your Senators and Representatives (you can mention that 32 of their colleagues in the Senate agree with these points):

    These cuts will reduce access to the home health care

    The populations served by home health are truly vulnerable

    People prefer to stay in their homes and receive care 

Another point to keep hammering away on is that home health care is very cost effective.  Why reduce access to cost effective care at a time when everyone wants to "bend the cost curve." Finally, you may want to reiterate the reality that home health providers do not operate with the margins that MedPAC thinks you do.  

I know I am repeating myself, but you need to keep trying to persuade your elected representatives that voting for these cuts will harm their constituents and cost Medicare more in the long run.  Until the bill is signed, there is still a chance we can change it and, at a minimum, get the lower cuts enacted in place of the House's cuts. 

Happy New Year: Here comes OSHA

I meant to be back at the blog last week, but my Christmas vacation, but I ended up being out longer than anticipated due to illness.  Anyways, I am back and hope to post even more regularly this year.

With that said, a friend forwarded me an e-mail from her nursing association list serve that brings up even more areas for home health, home care, and hospice to be worried about in 2010.  According to a recent online Q&A with Secretary of Labor Solis, OSHA (the federal agency, not the state level agency) is looking at airborne infectious disease and patient safe handling issues for its regulatory agenda in 2010.

Secretary of Labor Solis stated that OSHA will publish a request for information in the federal register in March.  OSHA's standard would likely require health care employers to protect health care workers from SARS, tuberculosis, and influenza.  OSHA issued an enforcement directive on H1N1 in November.  You can download it here.  

Secretary Solis was asked during the Q&A if the OSHA standard would be modeled on the California standard.  Solis replied that the California standard "would certainly be one important piece of information that OSHA will consider in deciding whether to propose or issue a standard."  

Although during the Q&A the Secretary did not specifically commit to such a standard, the fact that they did state a request for information would be published in the Federal Register indicates they will move forward with this.  Responding to that request for information will be important.  This is the first opportunity the industry will have to share its thoughts (read objections) with the Department of Labor. 

Providers should keep a close eye on this and be prepared to respond to the DOL.  A national standard on protecting employees form airborne transmissible diseases is likely to be fairly burdensome to home care and hospice providers.