The home health care industry has really grown, and the definition is that of services being provided in the community and in patients’ homes. So, it includes not only those two, home health and hospice, but also private duty nursing services and personal care services, which includes federal and state programs paying family members to provide services. It is durable medical equipment being delivered to the home and it is pharmacy services that are being provided.
It is also house call services where physicians are coming to the home, which also then translates to telemedicine and telehealth, which is now a form of home health care service. Given some recent increases in expenditures and home care and hospice, it is not surprising that these two industries have been the focus of a lot of government scrutiny. Recent Med PAC reports suggest that hospice as a benefit, in terms of expenditures, has grown as much as four hundred percent over the last couple of decades.
Based on some CMS recent reports, CMS believes that home health care agencies have been paid in excess of ten billion dollars in improper payments, so the government is doing what it normally does, which is follow the money.
HHS-OIG, the FBI, and the Department of Justice have devoted considerable resources within the area of home health care within the last few years. For example, between fiscal years 2011 and 2015, they brought over 350 actions, both criminal and civil, against individuals within the home health care realm. Examples of the actions and the areas in which they’ve been focusing in on include:
- Services not medically necessary for beneficiaries.
- Services not rendered or services were not provided to beneficiaries whatsoever.
- The classic kickback cases.
These investigations have been resolved both civilly and criminally. On the civil side, most of the cases have been brought under the False Claims Act. Damages and settlements have ranged from the low millions to amounts that exceed 100 million dollars. Many of these cases, unfortunately for the companies, have ongoing corporate integrity agreement obligations which can be quite onerous.
But it doesn’t just end in terms of fines and money penalties. There are several people who have been prosecuted criminally and are sitting in jail right now for engaging in health care fraud. In many of these situations, the defendants have taken the course of going to trial and have had verdicts against them where they’re in jail for five or ten plus years for engaging in significant health care fraud.
Before a client is subject to government action, whether it is through a civil investigative demand, HIPAA subpoena, or grand jury subpoena, they need to have a firm plan in place over what to do when that day comes. They need to know how they are going to respond to search warrants being executed on their premises, whether it is a corporate headquarters or an off-site location. They need to know what to do when there is a False Claims Act filed against them and they receive a civil investigative demand from the Department of Justice. And, they need to know what to do with their electronic evidence. You should have procedures in place that will preserve and retain electronic evidence.
If you are a provider supplier to any kind of service under the federal health care programs, in this day and age, it is not a certainty if, but when. Under a long enough timeline nearly everyone is going to face scrutiny under the fraud and abuse laws. Critical to the success of avoiding one of these investigations is active compliance. Not just compliance, but functional active successful compliance. Is your compliance program identifying problems, is it solving the problems and is it documenting that solving?
The problem is the government has made it very clear that they are not just looking at going after organizations in its totality or low-level employees, they are looking to go after senior officials within an organization, senior managers and even, potentially, the board of directors.
So, organizations need to really understand that no matter what role you play, that your culpability is in question, and everyone within the organization needs to be asking questions: “Are we doing things right, are we monitoring the right issues, and are we returning money when and if it’s necessary?”
So, everyone needs to take a responsibility at a low level, at a mid-level, a high level and even to the point of governance.
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