Hospice Care: The New Frontier for Compliance & Enforcement A Panel Discussion Moderator - David R. Hoffman, Esq. Panelists: Deborah Way, MD - Medical Director of Hospice of Philadelphia Margaret Hutchinson, Esq. – Chief, Civil Division U.S. Attorney’s Office 1982 1984 1986 1991 1993 1994 Tax Equity and Fiscal Responsibility Act of 1982 creates Medicare hospice benefit JCAHO initiates hospice accreditation MHB made permanent by Congress Recommendation made to include hospice care in Veteran’s Benefit Package President Clinton’s health care reform proposal recommends hospice as a nationally guaranteed benefit HCFA calls attention to documentation and certification problems Hospice care is a very specific type of care provided within a defined time frame at the end of life Interdisciplinary group Nurse Home health aide Medical social worker Chaplaincy/Bereavement Physicians (attending and medical director) Pharmaceuticals DME Transportation for care related to the terminal illness Average length of stay Not for profit 48.6% For profit 47% (industry growth in this group) Percentage of patients/patient care days by payer 67.4 days 59.8 days Tax designations of hospice providers 2007 2006 Medicare 83.6/87, Private 8.5/4.8, Medicaid 5/4.5 Percentage of care days by level of care Routine 95.6, GIP 3.3, Continuous 0.9, Respite 0.2 More people are dying in facilities Nursing facilities, ALF Hospice inpatient units Acute care hospitals Extra care Medication costs to patient reduced Durable Medical Equipment 24 hour availability of nursing Medical professionals How to prognosticate Perceived issues with “giving up” Patients and their families Misunderstanding of hospice care Perceived issues with “giving up” It is the LTC responsibility to continue to furnish 24 hour room and board care, meeting the personal care and nursing needs that would have been provided by the primary caregiver at home before hospice care was elected It is the hospice’s responsibility to provide services at the same level and to the same extent as those services would be provided if resident were in his or her own home Medicare Hospice Care and Nursing Home Residents Provider Billing Trends in Hospice Utilization Increasing diagnoses Longer stays OIG to examine Hospice beneficiary characteristics Geographical variations For-profit vs. not-for profit providers 2001-2004 MHB spending doubled from $3.5 billion to $7 billion Growth mostly in NH residents 46% fewer nursing and aid services in NH vs. beneficiaries at home Medical record review/Plan of Care Assessment Services consistent with POC? Payments appropriate? Compliance with Medicare Coverage Requirements Objectives: to determine the extent to which hospice claims for beneficiaries in nursing facilities in 2006 met Medicare coverage requirements Findings: 82% of hospice claims for beneficiaries in nursing facilities did not meet at least one Medicare coverage requirement Medicare paid ~$1.8 billion for these claims NFP less likely to meet requirements 33% of claims did not meet election requirements 63% of claims did not meet plan of care requirements 31% of claims, hospices provided fewer services than outlined in POC 4% of claims did not meet certification of terminal illness requirements Recommendations Educate hospices about coverage requirements Provide tools and guidance to hospices Strengthen monitoring practices Response from CMS Concurred with recommendations Physician billing for Medicare hospice beneficiaries (2010) Duplicate drug claims for hospice beneficiaries (2010) Trends in Medicare hospice utilization Not U.S. Department of Justice Policy In cases where there has not been a trial or guilty plea, government has duty to present evidence and carries burden of proof at trial, if defendants elect a trial Allegations of indictment or complaint are not evidence 18 U.S. Attorney’s Office – Eastern District Of Pa. Federal, not State Part of U.S. Department of Justice Jurisdiction over PA Counties of Berks, Bucks, Chester, Delaware, Lancaster, Lehigh, Montgomery, Northampton, and Philadelphia Civil Division and Criminal Division Civil Division, e.g., brings actions on behalf of the U.S. to recover $$$ lost due to fraud and other misconduct against U.S. gov’t agencies such as Social Security Administration, Dept. of Veterans Affairs, Dept. of Health and Human Servs. 19 Pharmaceutical Fraud Nursing Homes Hospitals Home Health Care Personal Care Homes Hospice Care 20 The Department of Justice in the Eastern District of Pennsylvania (Philadelphia area) was the first to use the False Claims Statute in these Quality of Care cases. Our prosecutive theory was that these nursing homes were submitting false claims to the U.S. Government for reimbursement for services that were worthless or not rendered. 21 CMS Private Attorneys Newspapers State Surveyors Public Self-Initiated County Officials/Referrals MFCU Relators 22 Interview Employees/Former Employees Undercover Operations Issues – Consent Location Is the patient always in their room Flip an employee Subpoena Records Review Records 23 Staffing Heavy reliance on agency staff? Unqualified staff? Not enough staff? Wound Care/Bed Sores Nutrition Medication Errors Diabetes Monitoring Pain Management Employee Response to Patient Complaints/Alarms 24 Revocation issues/election issues Plan of care Routine care/continuous care/inpatient care Patient eligibility 25 I work for a nursing home that has a problem getting staff to show up on a regular basis and have seen some residents with questionable diagnoses identified as needing hospice care to, perhaps, get the hospice provider (ABC Hospice) and its staff into the building. When I asked the hospice nurse about this, she told me that while some of her residents at the facility appear to be “borderline” hospice eligible, this is a common practice and as long as the residents ultimately get their needs met, we are doing a good thing. I am not so sure that this is the case. Upon review of ABC Hospice’s billings to the Medicare Program, it is shown that this provider is the second largest hospice program in the region. It serves multiple nursing homes and assisted living facilities and has a significant home-care program as well. The nursing home that was identified in the call has had a problem with staffing as evidenced by its recent survey history and cited deficiencies. It has a census of 150 residents and based on data obtained from CMS, 20 residents are on hospice care. A subpoena is issued and served on the nursing home for all records pertaining to the hospice residents. Counsel for the nursing home contacts the AUSA and would like to discuss this matter. She notes that the hospice agency was very aggressive in pursuing a referral relationship and that her client had delegated the hospice determinations solely to the hospice agency. A medical expert is retained by the government and concludes that at least half of the 20 residents are not hospice eligible and several others are awfully close calls. As a result of interviewing several former employees of the nursing home, you learn that staffing was bad at the facility and that the hospice agency was ready, willing and able to assist in caring for residents. In fact, the addition of hospice staff was helpful in caring for residents who otherwise may not have had their needs met. After interviewing former employees of the hospice agency, you learn that the marketing department of ABC Hospice would, on occasion, offer some deeply discounted durable medical equipment to facilities in order to obtain referrals from nursing homes and assisted living facilities. As you gather more information during the investigation, you learn of an allegation that staff was directed by the Director of Nursing to make sure that the residents’ charts clearly reflected the need for hospice services. In one instance, a former employee noted that she was directed to chart that a resident suffered from shortness of breath when in fact, that was not the case. The decision is made to expand the investigation into ABC Hospice. There is substantial evidence that durable medical equipment was offered to multiple facilities in exchange for referrals. The government has also confirmed that there was a significant amount of residents who were not, in fact, hospice eligible as determined by the government’s experts. The hospice agency vigorously disputes this and has stated that it will contest any allegation (criminal or civil) that is was providing services to ineligible beneficiaries. Additionally, ABC Hospice contends that the quality of the hospice services rendered to the residents is top notch. This assertion is confirmed by interviews with staff at multiple facilities.