Home Care Law Blog

Recovery Audit Contractor Update

Last Friday, CMS posted an update to its RAC website.  This update is in response to questions CMS has been receiving regarding the timing of RAC reviews.  Many providers have asked CMS when will they be "eligible" for RAC reviews.  CMS has clarified that RAC reviews are not being phased in by provider type, but by review type.  In other words, automated reviews, then complex reviews, then medical necessity reviews.

As a helpful guide, CMS has published a document that outlines this phase in strategy.  The guide is divided into two columns, reflecting the phase-in map's color coding.  Yellow states and green states (which were originally scheduled for March 1, 2009 phase-in) are on the earlier schedule.  Blue States (which were originally scheduled for August 1, 2009 phase -in) are on a later schedule.

A key point made by CMS is that no reviews will occur in a state until provider outreach has occurred in that state.  CMS also notes that before any reviews take place they must have been approved by CMS and posted to the RAC website.  CMS expects the first such postings to take place in July 2009.  

Home health and hospice providers in the yellow states should start checking for RAC outreaches in their states.  (You can find a schedule here.)  You should also be checking your RAC's website for posted reviews.  Once you see those, you will know that the automated reviews have begun and that other reviews will be coming on-line as scheduled.  If you are in a blue state, you should start checking your RAC's website in August.  (Just go ahead and put it on the calendar. You will be glad you did.)

If you have not started preparing for the RAC's, now is as good a time as any.  I have touched on that topic here, and there are many other resources available.  Some key points that are worth repeating, audit claims now to identify errors.  You can determine specific errors to look for by looking at your history of claims and past errors you have made as well as by looking at guidance documents from CMS and OIG.  Auditing and monitoring will play a big role in preparing for RACs.  

You should also consider employee training and making sure you have procedures in place to respond to document requests and recoupment requests.  Responding to document request and/or timely appealing recoupment requests is also very important.  You would hate to owe money simply because you responded to slowly.

OIG's Testimony to Congress

Last Thursday, The Inspector General of the Department of Health and Human Services testified before the House Energy and Commerce's Subcommittee on Health.  The purpose of his testimony was to discuss opportunities to address Waste, Fraud and Abuse as part of the "health care reform" effort.  

There was not a whole lot of new detail in this testimony, as he spent a lot of time reviewing what has been going on in South Florida and the new joint effort between DOJ and HHS to operate its "HEAT" strike force.  The Inspector General mentioned a number of vulnerabilities in the Medicare/Medicaid system and touched on Home health specifically.

His testimony regarding fraud in the home health/personal services industry touched on overpayments in New York.  The State of New York paid for services from providers that did not meet program coverage requirements.  The Inspector testified that this was  result of New York's failure to properly monitor providers for compliance with certain state and federal requirements.  

The Inspector also mentioned home health and personal services were subject to the same vulnerabilities as the DME program.  These included improper enrollments due to providers circumventing enrollment requirements, providers circumventing billing requirements, providers providing kickbacks, high payment error rates, and excessive reimbursement rates.  These are all areas that have been covered here and in many other forums over the last few months.

The Inspector did not mention Hospice at all.  Lucky for you hospice providers.

Everyone, hospice, home health and personal services should be interested to note the recommendations the Inspector made to Congress for addressing these problems.  The Inspector announced OIG's Five-Principle Strategy:

1.  Enrollment:  Scrutinize individuals and entities that want to participate as providers and suppliers prior to their enrollment.

2.  Payment: Establish payment methodologies that are reasonable and responsive to changes in the marketplace.  The inspector did not advocate rate cuts, per se, but did illustrate how the current system leads to Medicare paying 4 times the price of some DME equipment.  His point was that paying four time the price for an item was wasteful.

3.  Compliance:  Assisting providers with adopting practices that promote compliance.

4.  Oversight:  Vigilantly monitor programs for evidence of fraud, waste, and abuse.

5.  Response:  Respond swiftly to detected fraud, impose penalties steep enough to deter others, and promptly remedy identified vulnerabilities.

None of these proposals are new, unique or earth shattering.  For providers, the main one that will involve work is the third "Principle".  You have to implement and update your own compliance program and take steps to instill a "culture of compliance."  This third principle is another reminder to providers, you need to be taking a look at your compliance plans.  If you have not updated them in years, if you don't have one, or if you don't think yours is effective, now is the time to do something about it.  OIG is giving everybody in the home health, hospice, and personal services industries a clear signal that it is still serious about compliance and that you should be as well.

Interesting article on SEIU's tactics

Here is a story to file away in the event you ever find yourself dealing with a union campaign involving SEIU.  According to this press release from NUHW (SEIU's competitor) in a recent election SEIU used a number of tactics that it routinely accuses employers of using to intimidate and disenfranchise voters.

The election was ordered after self-directed care aides who were SEIU members petitioned for an election to leave SEIU and have NUHW become their representative.  What ensued was a massive organizing campaign in which SEIU spent ten million dollars and flew in a thousand staffers to try to win the election.  In the end, SEIU won, but only by two hundred or so votes.

In the aftermath of the campaign, workers are coming forward to describe the questionable tactics used by SEIU.  According to these homecare workers, SEIU threatened members that if they voted to decertify SEIU and certify NUHM as their union, they would lose their health insurance benefits, their hours, and their wages.  These are all things SEIU routinely accuses employers of doing in campaigns.  

More importantly, this type of activity is illegal.  The workers stated that even after warnings, the SEIU staffers kept making threats.  They used phone calls, letters, in-person visits, etc. to keep making these threats.  The article linked to above details even more tactics that were allegedly employed by SEIU in this fight.

This is pretty interesting, because as NUHW and SEIU keep fighting, the unions true colors are coming out.  An interesting point for employers and others to consider - if SEIU is such a wonderful, pro-worker union, why do they have to threaten their own members in this fashion.  Something else to keep in mind - SEIU is willing to engage in many questionable practices to win an organizing campaign; imagine how the EFCA would make it even easier for them to win when they are willing to go to these lengths to win.  Legislators, and the public, need to be made aware of this type of activity.  It puts the EFCA, and other related issues, into the proper context.  (It also seems to support the EFCA-Iranian elections comparisons made elsewhere.)

New U.S. Supreme Court case on Age Discrimination

The U.S. Supreme Court handed down a decision last week in a case, Gross v. FBL, involving allegations of aged discrimination.  The plaintiff alleged that he was "demoted" and that his "demotion" was based "at least in part" on his age.  In other words, the employer's motives may have been both discriminatory and legitimate.  This is known as a mixed motives case.  In mixed motives cases, courts have applied a standard that required the plaintiff to show that the discriminatory motive was a "motivating" or substantial factor in the action.

The Plaintiff did not have any "direct evidence" i.e. statement's or documentation stating he was being demoted because of his age, but instead relied upon indirect evidence. This is rather common in discrimination cases, because rarely do you have any obviously discriminatory statements, etc.  (Could this be because most employers are demoting and/or firing people for legitimate business reasons? Nah? That couldn't be possible.)

The trial court gave the jury several instructions.  One stated that the the jury should find in favor of the plaintiff if he had proved, by a preponderance of the evidence, that age was a "motivating factor" in his demotion.  The Court also instructed the jury that if they found the plaintiff had presented evidence of discrimination the burden of proof shifted to the employer to prove that "[it] would have demoted [him] regardless of his age." 

What the court was doing was applying the mixed motives, burden shifting approach to the case.  In this approach, once the plaintiff has provided proof that the substantial or motivating factor in the employer's conduct was discriminatory, the employer must then prove it would have taken the action it did, regardless of the discriminatory factor (age, race, sex, etc.)  This approach was taken out of Title VII cases and had been applied to age discrimination cases for a number of years.

On appeal, the U.S. Supreme Court ruled that this approach is not applicable to age discrimination cases.  The U.S. Supreme Court ruled that the mixed motives burden shifting approach should not have been applied and that the plaintiff "should have been held to the burden of persuasion applicable to typical, non-mixed motives cases."  In other words, the Plaintiff should have had to carry the burden of proving, by a preponderance of the evidence, that age was a determining factor in the employer's action.

 

The Court then went one step further.  The parties had asked the court to address whether indirect evidence was appropriate in a mixed motives case.  The Court addressed whether the Act even allowed "mixed motives" cases.  The Court held that it does not.  The Court looked at the history of the ADEA and compared it to Title VII.  The Court noted recent amendments to Title VII that were not applied to the ADEA.  The Court then analyzed the wording of the ADEA.  Based on this analysis, the Court ruled that in an age discrimination case, the plaintiff must prove that age was a "but-for" cause of the challenged adverse employment action.  This means that the plaintiff must show that "but-for" his age, the challenged action would not have happened.  This is a much higher burden for the plaintiff and eliminates "mixed motives" cases.  The Court also noted that the burden of proof is always on the plaintiff in these cases, even when the plaintiff has produced some evidence of discrimination.

This is a great case for employers.  It actually applies the wording of the statute and provides a simple bright line rule.  As the workforce ages, this case will make it less burdensome to take legitimate actions against employees who are over forty.

One note, because this is an interpretation of a statute, Congress can amend the ADEA to reverse this decision.  Given Congress' recent actions in this regard, I would anticipate Congress at least considering some action.  Employers should be prepared to speak out against such an action. The Supreme Court noted in its opinion how unworkable a mixed motives burden shifting approach is in these cases.  All it does is drive up the cost of doing business, because, in most cases, the employer has to prove itself innocent.

The HEAT is on

It did not take long for the joint HHS/DOJ Heat project to make its first announcement.  At a press conference today, U.S. Attorney General Eric Holder announced that as a result of the efforts of the strike force efforts resulting from the HEAT program, 53 indictments were handed down by the Federal Grand Jury in Detroit.

The press release does not state the provider types specifically, but it serves as a reminder that the joint efforts between HHS and DOJ are continuing and doing so quite rapidly. It appears from the press release that the schemes involved were very similar, if not identical, to what was going on in Miami.  It will be interesting to see what details we learn as this story develops.  Given that the press releases mention the schemes were similar to what went on in Miami, I cannot help but think that home health and DME providers were involved. 

If so, the entire industry is going to be made to look bad because of the actions of these criminals. These are individuals who set out to defraud Medicare from the start, but the news media always seems to overlook that when generalizing about the "rampant fraud" in the health care industry.

At least DOJ and HHS pointed out that most providers are doing the right thing in their statements.  Maybe DOJ and HHS realize that every provider is not a criminal.  (Of course, I am not betting on that.)

 

Bipartisan health care reform targets Home Health

Tom Daschle, Bob Dole, and friends issued their health care reform proposal earlier this week.  I bet it won't surprise you to learn that this proposal also targets home health spending.  Their proposal, on page 51, proposes to adopt "MedPac style" cuts.  They do propose to allow for providers to obtain "increased net revenues" through their quality incentives proposal.  The bottom line: their proposal would cut home health and nursing facility spending by $75 billion over ten years.   They do not specify how much of that would come from home health cuts and how much would come from nursing facility cuts.  

The propose these cuts, because of the concerns of overpayment and inappropriate utilization.  Of course, the do not identify what those are.  The overpayment is likely derived from the 16% profit number, but the do not explain why they believe home health is being inappropriately utilized.  Of course, they do not consider how any extra an agency might make on Medicare generally subsidizes care for Medicaid.  Which will be more important as Medicaid rates come under pressure form state budget crises.

It is hard to say where health care reform is going at this point, but I thought you would want to know that now matter how you slice, health care reform does not look good for the home health industry.

For those of you in hospice, they do not propose any cuts, but they do focus on improving the quality of palliative care.  They propose to promote patient centered care and to fund development of consensus quality measures.  (They may think you need to improve quality, but hey, at least they want to keep paying you.)

If you use GMail, Google Docs or similar offerings, you're not as secure as you think

A group of researchers sent a letter to Google this week regarding the security of the Google Cloud services (GMail, Google Docs, etc.).  It seems these services may not be secure as advertised.  If you use these services for work, it is an interesting read.   I know some small businesses use GMail and similar services for communications.  I also know that smaller business like to use Google Docs and Calendar for collaboration.  

If you are a home health or hospice agency that does this, you should re-assess how secure your e-mail and other "cloud services" are.  The letter mentions other e-mail providers, including Hotmail and Yahoo Mail as being subject to the same security risks.  

The primary concern is the use of encryption by these services. The researchers' concern is that although encryption is enable for login, it is not enabled by default for the session once authenticate.  This means that if you are on a public connection, school, hotel, etc., the default setting would send confidential information in the clear.  This information is then relatively easy to intercept.  So if you were e-mailing information about a client to a colleague, a relatively unskilled hacker with easy to obtain tools could intercept this information.  That's a scary thought.

Users can enable session encryption and the letter explains how to do that.  For providers that use these services for any work related communications, I would suggest amending your privacy and security policies to address ensuring use of encryption during a session, not just at log-in.  Providers should also consider when and where employees are allowed to connect to networks to transmit information and that point of care systems are encrypting transmissions when sending over public networks.  You might also consider whether it is appropriate to use this type of e-mail.  For other ISP e-mail providers, you use a similar web interface for e-mail.  You should discuss with your ISP whether their systems encrypts only log-in information or if in encrypts the entire session.

CMS issues Scam Alert

It seems that there is a scam happening where physicians are receiving faxes that purport to be from Medicare or the Medicare Administrative Contractor.  The fax requests the physician to respond to a questionnaire regarding account information to "avoid a gap in payments".  Although these faxes look official and even contain the CMS logo, these faxes are not coming from Medicare or a contractor.  It sounds like a phishing expedition to get beneficiary information to commit medical identity theft or some other form of health care fraud.

This may be happening to physicians right now, but home health and hospice providers should be alert to this type of scam.  If you start receiving faxes relating to accounts and payments, you should be very cautious in how you respond.  No provider wants to fall for a scam like this and become the cause of identity theft for their clients.

CMS requests that before responding to a fax of this nature, you contact your contractor before you respond.  CMS also reminds providers to only send information to Medicare contractors using the address found on CMS' website.

This is a scam that could be easily adopted to Medicaid, private insurance, etc.  Be sure to warn your staff about fax scammers.  Your staff should be aware of the risks and know how to handle these types of faxes.  

SEIU, California, Budget Cuts and Unintended Consequences

I missed this item in the L.A. Times last week, but it is another example for states where SEIU is pushing their self-directed care agenda.  It seems that SEIU has run out of ways to prevent the rate reduction to the in-home care program.  So now they are proposing tax increases.  I cannot think of the last time a home health care association proposed a tax increase to try to prevent a rate reduction.  (Apparently, SEIU has not been paying attention, rate reductions are happening across the country to all forms of health care providers.)  This proposal comes on the heels of a referendum in which the voters in California widely rejected tax increases.

Even though the voters in California just rejected a number of tax increase initiatives, SEIU is polling, running ads, and targeting Republican legislators to try to get their tax increases through.  This is a fact for state home health associations to keep in mind and maybe point out to legislators in their state.  Once SEIU gets in and organizes a states self-directed care aides, you suddenly have an unelected group trying to dictate not just health policy, but fiscal policy.  This should cause a whole lot of people to think very carefully when SEIU starts sniffing around the state house.

Jim Cramer and Erin Burnett hit the nail on the head regarding EFCA

Okay, I know I have posted a lot about the EFCA, but I thought those of you who read this regularlry would appreciate this bit.

I saw a few articles this evening discussing how Jim Cramer, from CNBC (edit - Oops,CNBC, MSNBC, you knew who I was talking about, right), on his show yesterday compared the Iranian election to what would happen under the EFCA.  This is great, because it is true and an excellent illustration of why secret ballots are important.  (They get into it at about 1:15)

 

Of course, SEIU is up in arms arguing that the EFCA would not do away with secret ballot elections.  (Wink, wink, nudge, nudge). If nothing else, it is entertaining to see how upset this clip is making the EFCA's supporters.  They are all adamantly protesting that Mr. Cramer and Ms. Burnett are mistaken, which of course means they have struck a nerve.  Otherwise, SEIU would ignore it.