Home Health News

This is the fourth and last in our series based on our July interview with NAHC attorney Denise Bonn and her presentation to the NAHC Financial Managers meeting.

Read the rest of the series: 

• Part One: RAC Startup Plans,
• Part Two: OIG Questions Paltry 1.4% Denial Rate,
• Part Three: Four Distinct Entities Want to Deny Your Payments

Protecting your agency from suffering potentially crippling claims denials and payment recoupments while CMS fights fraud and abuse with multiple layers of redundant auditors will require significant planning and advance defensive measures. Agencies that take the attitude, “We’re not intentionally breaking the law, we don’t have anything to fear from these new auditors,” are at high risk.

Address your risk areas.
Where some may be inclined to wait until an issue arises or an accusation is made, it is best to be proactive, attorney Denise Bonn of NAHC told an audience in July. “Get everybody on your senior staff to embrace compliance. Look at everything you are doing; address problems in advance instead of waiting until they escalate and then playing catchup.”

Not only owners but boards of directors and senior management must embrace compliance before an attempt is made to write a compliance plan. It must be your way of doing business rather than a defense to dust off and read after a set of payments are denied. “Your staff is savvy,” she warned. “They will know if they are asked to meet goals to which management is not committed.”

Your goal, Bonn emphasized, is to adopt an attitude of compliance covering care quality, marketing policies, enrollment and office procedures. Support it all by implementing ongoing training and monitoring. “It is not going to work if you do not keep an eye on it,” she added. “Know if your plan is doing what you expected it to do. When a new problem surfaces, take corrective action.

Getting started: board level
Bonn strongly recommends that compliance is a top-down effort. Having owners, board members and senior staff buy into the project is essential for success.

• Obtain board approval that a Compliance Plan is needed
• Owners, board and managers meet to discuss compliance and create a plan. Recognize you will need financial resources and clinical buy-in to be successful.
• Establish compliant policies and procedures for coverage, billing, marketing and enrollment.
• Review existing policies, procedures and manuals. Identify what must be changed.
• Get input from legal, clinical, finance and operations departments.
• Interview staff to inform those who will be writing the plan. “They see all kinds of things,” Bonn advised. “You’ll be surprised what they tell you, and they will tell you.“

Claims: perform a baseline review
Since most of your payment denials will be based on patient chart reviews, start your self-assessment with an internal claims analysis. Look for the same things auditors will look for:

• high dollar claims, especially those that include therapy
• outlier cases, even if you believe your percentage is low
• high number of multiple episodes; are you recertifying patients for a subsequent episode but recording that their condition is not improving, or that goals have been met? Auditors will ask what good your services are doing or why you are continuing to provide services after your work with this patient seems to be done.
• home health services to residents of assisted living facilities. Auditors will ask why you are needed and whether you are duplicating services available internally.

Followed by action
After completing and evaluating your own baseline review, you should know whether you need to change policies and procedures. Modifying your P&P manual is the easy part. To make it work you have to modify behavior. This is not a Saturday workshop but an ongoing program, Bonn insists. “Train, evaluate and train again,” she said. “Continually monitor behavior to evaluate the effectiveness of your training. Both monitoring and training are ongoing activities.”

Documentation: perform a clinical review
Does your documentation support medical necessity and homebound status and support correct billing? How extensive is your supervisory review of OASIS assessments, care plans and visit notes? “Much documentation has not been good,” Bonn frankly informed her audience. “All too often, agencies are hit hard and have no recourse during appeal because their nurse documentation is not enough to demonstrate medical necessity and eligibility.

If you are not familiar with CMS definitions, look them up in the Medicare Benefit Policy Manual (CMS Pub. 100-02), chapters seven and nine. Familiarize yourself also with local rules, “LCDs” issued by your FI, and soon by MACs. “These are supposed to interpret coverage,” Bonn opined, “but I think they limit coverage. If your FI has issued one of these, read it. Look it up on your FI’s web site.”

Documentation Establishes Coverage: where agencies often trip up
#1: Is the patient homebound? They can deny payment for an entire episode without looking any further.

• Clinical documentation should establish up front that leaving the home requires a “taxing effort.”
• Homebound does not mean bed bound. The issue is not whether they can go out; the issue is whether they need an assistive device and it is safe for them to go out.
• Examine random episodes to see how homebound status is verified. Often a payment is denied because homebound status was documented in the initial episode but not re-written for a recertification. Change your practice so your nurses must write it down upon recert.
• Document homebound status because CMS interviewers may knock on the patient’s door as much as a year later, asking them whether they were homebound twelve months earlier. “They lie,” Bonn laughed. “They want the nice stranger to think they are ‘fine’ so they talk about all these outings that never happened.”
• Even if a patient is clearly homebound and you documented it in episodes one and three, the contractors will try to deny payment if you did not document it for episode two.

#2: Can you prove medical necessity?

• In addition to the usual questions regarding whether severity of patient condition justifies the skills of a nurse, FIs and other claims reviewers have lately been challenging the need for Observation and Assessment. It falls on RNs to document that a skilled nurse is required to see whether changes to care or additional new care are needed. Your documentation must clearly indicate that you need a nurse’s skills to do that observation and assessment and that there is a likelihood of change to patient condition.
• Therapists are in as risky a position. Documentation must show there is a need for the skills of a professional PT, OT or ST. Recent denial explanations frequently mention exercises, saying, “Anybody can do that.” (See this week’s “Clear as M.U.D.” column if you believe all payment denials are reasonable.) Attorney Bonn’s tip is to teach your therapists to document their reason for knowing the patients is really doing the exercises, then write down their professional response to the effectiveness of the exercises. Show that PT skills are needed because the patient’s condition calls into question their ability to do them safely. Be sure to document why continuing therapy is needed, if it is. Be clear that additional improvement is expected. Be familiar with the LCDs for your area.
• New York Medicaid providers have a new denial concern based on documenting medical necessity. A recent spike in the number of cases where fraud has been proven resulted in increased regulatory vigilance. Investigators are looking closely at personal care services for coverage and documentation compliance after they found fraudulent aide certification programs, incidents of billing when no services were rendered, payments to beneficiaries by aides to say they performed a visit when they were a no-show, and nurses submitting fraudulent notes.

#3: Are you aware that you have been overpaid?

Congress revised the Federal False Claims act in May, 2009. It is now part of the act that you can be considered to have falsely secured Medicare or Medicaid payments if you inadvertently receive an improper payment and do not report it when you find it.

If you take action to conceal overpayments or improperly avoid your obligation to immediately repay them, you are guilty of filing a false claim. It is not enough to say you did not have actual knowledge or, worse, if you pretend not to have known. The act now says you must have procedures in place to detect overpayments when they happen.

The act includes a conspiracy provision, adding an additional legal charge if it can be shown you conspired to pretend you did not know of the overpayment. Bonn recommends monthly claims monitoring or hiring a service from one of the available software vendors to review 100% of payments as matched against your claims. As these services more often than not turn up underpayments and improperly delayed payments rather than overpayments, they often pay for themselves.

Business generation: perform a baseline review
After clinical documentation, improperly obtained referrals are the second most popular reason given to deny claims and recoup payments. As with clinicians, Bonn urges providers to know their marketing and sales staff current practices, write or update a compliance plan and continually monitor for compliance.

“As yourself one question,” she challenged the audience. “If one of your sales people was giving gifts or cash to a referral source, would you know? You should, because you could go to jail right along with the sales person and the doctor, even if you did not know.”

• Examine all contracts with all referral sources, looking for compliance issues.
• Gather data on your agency’s current marketing activities. Do you set production targets? pay bonuses? That could be a vulnerability.
  Some agencies have been accused of providing large bonuses and knowing their sales people were using them to pay referral sources. If your bonuses are unusually large, regulators will assume you intended for them to spread it around.
• Audit a sample of marketing expenses per referral source. Know what are you spending it on, who are you spending it on, who is doing marketing to them.
• Do your policies and procedures tell sales staff what they are allowed and not allowed to do? Some states restrict even providing pens and prescription pads as illegal incentives.
  
• Have your legal counsel review sales contracts, referral source contracts and marketing activities. Apply both federal and state law.
• As with clinicians, address shortfalls and develop an ongoing training and monitoring program.

OIG Recommendations:
The OIG has published guidelines for creating and documenting your compliance program. Following the OIG recommendations is an additional preventive measure should you be investigated.

• Make sure all policies and procedures are written and available to staff.
• Designate a compliance officer; ensure there is a well-publicized way all staff, even low-level personnel, have a way to speak privately with the officer.
• Conduct regular, effective training and education.
• Develop effective lines of communication, including hotlines.
• Enforce standards through well-publicized disciplinary guidelines,
  auditing and monitoring.
• Review your compliance program at least annually to verify you have all compliance elements working. Revise policies, procedures and training programs as necessary. “Nothing operational is ever perfect,” Bonn warns. “You must continually revise and adapt.”
• Most importantly: you must be able to respond to detected offenses and develop corrective action initiatives.

Benefits of developing a comprehensive compliance program
Denise Bonn concluded her fact-packed presentation, that took us four articles to adequately cover, with a reminder that the payoff is worth the trouble. “By taking the offense, you are better prepared for all the assaults coming, and there are many of them,” she assured the audience. “You also improve staff retention because it is a widely accepted business tenet that good people like to work for good companies. In turn, a good staff leads to improvements in care quality and increased patient satisfaction.”