Nursing Homes: Where Will Federal Law Enforcement Focus its Attention in 2009? Are You Prepared?
Every year brings with it a new Work Plan from the Office of Inspector General of the Department of Health and Human Services (OIG). The Work Plan identifies the areas the OIG will focus on this year as it conducts investigations, audits and inspections. Now is a good time for nursing home boards and executives to perform an annual “check-up” on their operations to make sure the nursing home is focused on the same issues as the federal government. Civil and criminal enforcement efforts by HHS-OIG and, in turn, the Department of Justice, often reflect Work Plan initiatives. It would also be prudent for a nursing home to select a couple of the Work Plan issues for audit as a part of its compliance program. By examining the Work Plan, nursing home boards and executives can better understand areas of risk for their nursing home. The OIG Work Plan lists 20 areas of focus, but some of the more significant areas of focus for nursing homes are highlighted in this alert.
Skilled Nursing Facility Consolidated Billing
The OIG will review Medicare Part B claims submitted by suppliers for items, supplies, or services provided to beneficiaries during Part A Medicare-covered skilled nursing facility (SNF) stays. The supplier must bill and receive payment from the SNF, rather than from Medicare, for these items or services. Prior work has identified significant improper claims submission and reimbursement in this area, and the OIG continues their work to identify additional overpayments. The OIG will also determine whether edits in Centers for Medicare and Medicaid Services’ (CMS) main claims-processing system, the Common Working File (CWF), are effective in detecting and preventing improper payments.
Part B Services in Nursing Homes: Mental Health Needs and Psychotherapy Services
The OIG will review Medicare Part B payments for psychotherapy services provided to nursing home residents during non-covered Medicare Part A SNF stays. Certified nursing homes are required to provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. A previous OIG review found that approximately 31 percent of outpatient claims for Part B mental health services allowed by Medicare did not meet coverage guidelines, resulting in $185 million in inappropriate payments. The OIG will determine the medical necessity of services, appropriateness of coding, and adequacy of nursing home documentation.
Calculation of Medicare Benefit Days
The OIG will review whether SNFs submit no-pay bills as required. No-pay bills are submitted to Medicare without a request for reimbursement to track beneficiaries’ benefit periods. Medicare allows up to 100 days of SNF services per spell of illness. A spell of illness begins on the first day on which SNF services are provided and ends after those services have not been utilized for 60 days. The Medicare Claims Processing Manual requires that a SNF submit a bill for a beneficiary that has started a spell of illness under the SNF Part A benefit for every month of the related stay even though no benefits may be payable. A SNF provider must also submit no-pay bills for a beneficiary who has previously received Medicare-covered skilled care and subsequently dropped to a non-covered level of service but continues to reside in a Medicare-certified area of a facility. The OIG will review whether failure to submit no-pay bills contributes to inappropriate calculations of SNF eligibility periods. The OIG will also examine CMS’s oversight mechanisms in place to ensure that no-pay bills are submitted by SNFs.
Nursing Home Residents Aged 65 or Older Who Received Antipsychotic Drugs
The OIG will review the extent to which nursing home residents aged 65 or older received selected antipsychotic drugs in the absence of conditions approved by the Food and Drug Administration (FDA). The Social Security Act requires SNFs to respect certain rights of patients, including the right to be free from chemical restraints administered for discipline or convenience. The regulations define safeguards to protect nursing home residents from being prescribed unnecessary drugs. The OIG will examine Medicare Part D and Part B program reimbursements for selected antipsychotic drugs received by elderly nursing home residents and the extent to which these drugs were prescribed and paid for in accordance with federal regulations.
Medicare Hospice Care for Nursing Home Residents: Services and Appropriate Payments
The OIG will review the nature and extent of hospice services that are provided to Medicare beneficiaries who reside in nursing facilities and assess the appropriateness of payments for these services. The Social Security Act governs hospice care in the Medicare program. Medicare hospice spending doubled from $3.5 billion to $7 billion from 2001 to 2004, with the growth associated mostly with nursing home residents. A previous OIG review found that hospice beneficiaries in nursing facilities received nearly 46 percent fewer nursing and aid services than hospice beneficiaries residing at home. By conducting a medical record review of hospice services provided to selected beneficiaries, the OIG will assess beneficiaries’ plans of care and determine whether the services that they receive are consistent with their plans of care and whether payments are appropriate.
Trends in Medicare Hospice Utilization
The OIG will review Medicare Part A hospice claims to identify trends in hospice utilization. When the hospice benefit was created, Medicare did not cover more than 210 days of hospice care per beneficiary. Congress changed the benefit to eliminate the limit on the number of days covered by Medicare. Since then, the number and types of diagnoses associated with hospice utilization have increased, and longer stays have become more common. The OIG will examine the characteristics of hospice beneficiaries, geographical variations in utilization, and differences between for-profit and not-for-profit providers.
Medicaid Payments for Personal Care Services
The OIG will review Medicaid payments for personal care services to determine whether states have appropriately claimed Federal Financial Participation (FFP). Medicaid covers personal care services only for individuals who are not inpatients or residents of hospitals, nursing facilities, Institutions for Mental Disease (IMDs), or intermediate care facilities for persons with mental retardation. Personal care services must be authorized for the individual by a physician in accordance with a plan of treatment, provided by an individual who is qualified to provide such services and who is not a member of the individual’s family, and furnished in a home or other location. The Deficit Reduction Act (DRA) further allowed states to provide payments to individuals for self-directed personal assistance services for the elderly and disabled. These include personal care services that could be provided by a member of a person’s family.
There are 12 additional hospital-related areas that the OIG will examine in 2009.
Ten Questions to Ask During Your Annual Compliance “Check-up”
As nursing home boards and executives consider the 2009 Work Plan, there are 10 questions worth asking about nursing home operations.
1. How frequently does the board receive reports about compliance issues?
2. Has the compliance program been reviewed and updated to address new risks to the nursing home, such as those identified in this Alert?
3. What is the scope of compliance-related education and training across the organization?
4. Has the effectiveness of the training program been assessed?
5. Have new training sessions been developed to target emerging areas of risk?
6. How is the board kept apprised of significant regulatory and industry developments affecting the nursing home’s risk?
7. How is the compliance program structured to address such risks?
8. What processes are in place to ensure that appropriate remedial measures are taken in response to identified weaknesses?
9. What guidelines have been established for reporting compliance violations to the board?
10. What policies govern the reporting to government authorities of probable violations of the law?
When a nursing home uncovers evidence of a potential violation of a law, it may be prudent for the organization to seek outside counsel for an independent investigation and advice. Holland & Knight’s White Collar, Compliance Services and Health Law & Life Sciences teams are ready to assist nursing homes dealing with emerging risks, internal investigations, and responses to federal law enforcement investigations and civil litigation.