Monitoring home healthcare and hospice claims is a program integrity priority due to continuing fraud, abuse and general noncompliance involving such benefits. How can payers fight these trends? FierceHealthPayer: Anti-Fraud spoke to Sean McKenna, J.D., to find out.
McKenna (pictured) is a partner in the Dallas office of Haynes and Boone, LLP. He has 15 years of enforcement and healthcare experience, most of which he spent working for the federal government as an assistant U.S. Attorney.
FierceHealthPayer: Anti-Fraud: What trends should insurers watch for in home health-related fraud and abuse? Do the problems differ in Medicare and Medicaid?
Sean McKenna: Home healthcare has been on the law enforcement and payer radar for years. While problems in both programs are similar, the Medicare response has been much more robust since most dollars lost to fraud, abuse and waste are primarily Medicare funds.
Changes under the Affordable Care Act address the perception that home health agencies are riddled with fraud. The ACA requires face-to-face physician certification for the initial visit. Previously, a nurse could call in and a doctor could sign off remotely without actually visiting a patient and completing a complex, detailed narrative. That narrative is now required, and the requirement may extend to recertifications later if there's persistent lack of compliance.
Recently the Office of Inspector General issued a report saying that a sample of about 644 claims showed an error rate of more than 30 percent in failure to document face-to-face encounters or noncompliance with the narrative requirement. These findings seem to indicate poor documentation as opposed to lack of medical necessity or fraud and abuse.
FHPAF: You've described homebound status as "a complex, factually-intensive and highly-individualized inquiry." Does that, in your opinion, make home health benefits easier for criminals to exploit?
McKenna: Actually, no. Criminals target federal and other payers regardless of reimbursement criteria. From paying kickbacks to phantom services or visits, the programs have been victimized by fraudsters for years. Home health agencies and the benefit itself have been especially riddled with bad actors resulting in enforcement actions, most of which have been criminal cases.
What we see is more risk to legitimate, honest providers due to a spillover effect. Those providers are being caught up with more onerous regulations, requirements and audits, regardless of any indicia of fraud, abuse or waste. There's more risk to providers unable to demonstrate compliance with the physician narrative or face-to-face requirement.
Providers need to train employees on more effective documentation of narratives for certifications or face potential enforcement actions. Payers can do an effective job assisting providers with this through informational bulletins and follow-up training.
FHPAF: The OIG voiced concern about home health agencies' employment of people with criminal convictions. Whose job is it to identify these people? Is this something carriers can or should do through credentialing or recredentialing?
McKenna: The screening falls to providers and payers. Effective credentialing is one aspect of screening, site visits are another. Law enforcement can readily determine through them if a provider is legitimate or not. Proactive data analysis can also identify suspect providers.
It's not remarkable to require criminal background checks on providers who care for elderly and vulnerable populations. Especially in home health and hospice--where caregivers may provide in-home services--we need to ensure caregivers are trustworthy.
FHPAF: CMS extended its moratoria on new Medicare home healthcare provider applications in fraud zones. Do you think we'll see more of this nationwide?
McKenna: Yes, because law enforcement and regulators are trending away from pay-and-chase and moving toward limiting access to programs and payers. Not only will this policy continue, but it's likely to expand. Repeated failures to remove fraudsters from programs have resulted in denial of access to new enrollees based on past criminal cases in a jurisdiction or the numbers of existing providers. It's a remarkable change in policy, especially when you read the bases for imposing a moratorium in a new geographic locale.
FHPAF: What trends should Medicare intermediaries watch for in hospice-related fraud and abuse?
McKenna: With the shift under the Affordable Care Act from rewarding complexity and frequency of items and services to rewarding quality of care, we're going to see movement of patients from acute to post-acute care settings, and that will impact hospice and home health.
Providers depend on referrals. So improper financial relationships and marketing activities by unscrupulous providers and companies is something payers should be aware of. Both are being used by the Department of Justice as bases in national False Claims Act hospice cases. That's a new area of enforcement since--in the past, most hospice cases were predicated by allegations of medical ineligibility.
Another area for payers to monitor is the pinballing of patients from acute to post-acute care settings. That could be evidence of medical ineligibility, especially given the frequency of higher paying procedures codes in the hospice setting. Erroneous crisis care claims, for instance, will continue to be a trend payers should watch.
Further, Medicare contractors have been looking at high-volume providers and using data analyses to contain providers who are increasing census or recertifying patients at higher rates than peers. Overseeing these trends is important to limit improper payment, which payers may be responsible for if the federal government believes they acted inappropriately under their contracts.
FHPAF: In your opinion, what do insurers most need to know and do to fight home health and hospice fraud and abuse effectively?
McKenna: Be able to distinguish documentation mistakes from fraud; many resources are wasted attempting to transform or elevate documentation lapses into civil or criminal fraud allegations. Sometimes payers spend significant time on cases they may not have pursued had they consulted with law enforcement first.
Recognize the highly factual nature of medical necessity determinations in home health and hospice, and have a clear understanding of what's required for payment of these benefits. Contractors may have a different understanding of applicable rules and regulations, and errors here can be costly to payers and providers, taking time away from detection of fraudulent and aberrant practices.
FHPAF: Do you have any other insights on these topics?
McKenna: Consider collaborating with providers to implement effective compliance programs to deter fraud, waste and abuse. Think about ways to work together from a compliance standpoint on best practices home health agencies and hospice providers can implement whether they're national companies or local operations.
Editor's Note: This interview has been edited and condensed for clarity.