Slide 1

Report
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
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1982
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1984
1986
1991
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1993
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1994
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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
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Hospice care is a very specific type of care provided
within a defined time frame at the end of life
Interdisciplinary group
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Nurse
Home health aide
Medical social worker
Chaplaincy/Bereavement
Physicians (attending and medical director)
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Pharmaceuticals
DME
Transportation for care related to the terminal
illness
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Average length of stay
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Not for profit 48.6%
For profit 47% (industry growth in this group)
Percentage of patients/patient care days by payer
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67.4 days
59.8 days
Tax designations of hospice providers
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2007
2006
Medicare 83.6/87, Private 8.5/4.8, Medicaid 5/4.5
Percentage of care days by level of care
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Routine 95.6, GIP 3.3, Continuous 0.9, Respite 0.2
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More people are dying in facilities
Nursing facilities, ALF
 Hospice inpatient units
 Acute care hospitals
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Extra care
Medication costs to patient reduced
Durable Medical Equipment
24 hour availability of nursing
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Medical professionals
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How to prognosticate
Perceived issues with “giving up”
Patients and their families
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Misunderstanding of hospice care
Perceived issues with “giving up”
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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
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Medicare Hospice Care and Nursing Home
Residents
Provider Billing
Trends in Hospice Utilization
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Increasing diagnoses
Longer stays
OIG to examine
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Hospice beneficiary characteristics
Geographical variations
For-profit vs. not-for profit providers
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2001-2004 MHB spending doubled from $3.5 billion
to $7 billion
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Growth mostly in NH residents
46% fewer nursing and aid services in NH vs.
beneficiaries at home
Medical record review/Plan of Care Assessment
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Services consistent with POC?
Payments appropriate?
Compliance with
Medicare Coverage Requirements
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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
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Medicare paid ~$1.8 billion for these claims
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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
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Recommendations
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Educate hospices about coverage requirements
Provide tools and guidance to hospices
Strengthen monitoring practices
Response from CMS
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Concurred with recommendations
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Physician billing for Medicare hospice beneficiaries
(2010)
Duplicate drug claims for hospice beneficiaries
(2010)
Trends in Medicare hospice utilization
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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
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U.S. Attorney’s Office – Eastern District Of Pa.
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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
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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.
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Pharmaceutical Fraud
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Nursing Homes
Hospitals
Home Health Care
Personal Care Homes
Hospice Care
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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.
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CMS
Private Attorneys
Newspapers
State Surveyors
Public
Self-Initiated
County Officials/Referrals
MFCU
Relators
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Interview Employees/Former Employees
Undercover Operations
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Issues –
 Consent
 Location
 Is the patient always in their room
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Flip an employee
Subpoena Records
Review Records
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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
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Revocation issues/election issues
Plan of care
Routine care/continuous care/inpatient care
Patient eligibility
25
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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.
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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.
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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.
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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.
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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.
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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.

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