Even before President Obama’s promise to hire bounty hunters to eliminate waste and fraud from Medicare, Regional Home Health Intermediaries had been stepping up their rate of payment denials. Most often, justifications to withhold payments for already provided nursing or therapy services center around “lack of medical necessity.” In case after case, attorneys and appeals consultants argue that medical necessity was certainly in place. In case after case, Administrative Law Judges retort, “Then why didn’t the nurse or therapist write it down?”
Eliminating fraud requires a completely different effort from the one needed to battle waste. In the case of fraud, a criminal posing as a home care provider may stretch the truth regarding a patient’s diagnosis, ability to function and need for certain services. These folks are not beyond outright lies. In certain parts of the country, people have been caught making cash payments to Medicare beneficiaries in exchange for the use of their Medicare number. They follow this with claims for services that were never provided, to patients who are not sick. The proper response to this problem is to find these people, close their operations and throw them in jail.
In the case of waste, the cure is civil rather than criminal. Here you have honest home care providers serving patients in need of care but not properly documenting the care they provide or not clearly delineating the medical necessity for providing it. To the eye of the RHHI, and eventually the Administrative Law Judge, these payments must be denied but the perpetrators are not criminal. They are simply overworked, improperly trained or lazy.
The proper response to this problem is to educate agency management. Home health agency owners who allow such a situation to exist unchecked need to be convinced to either provide an ongoing staff training program or to ease off on their productivity requirements so that clinicians have adequate time to document properly. Payment denials should be a good way to get their attention.
The buck stops at the owner’s desk
CMS, the Center for Medicare and Medicaid Services, has no mechanism for dealing with waste differently than they deal with fraud. Fines and punishment are the only arrows in their quiver. Solving the problem by helping clinicians learn better documentation skills is the responsibility of the owner of the agency, not the payer. Yes, CMS does provide some training services. It is still up to management to make sure those courses reach the staff.
Judging by the increasing number of Medicare payments denied because of lack of medical necessity — which in practice actually means “lack of documented medical necessity” — training has not been a priority for too many home health agencies. In fact, the problem of inadequate documentation is rampant in home care. Comprehensive training for home care nurses and therapists is far below the level needed, in spite of the fact that live and online opportunities abound.
Are there consequences? Absolutely. As Medicare’s need to cut costs grows more urgent, good clinicians offering good care with inadequate documentation are just as plum a target for auditors and investigators as full-fledged criminals. And their employers’ fates will be the same, regardless of criminal intent. Agencies unwilling to invest in ongoing, comprehensive training will see their revenue stream decrease by an amount that will dwarf what they would have spent on a comprehensive training program.
Consultants have ethical limits
Recently, we came across a shocking example of what can happen when agency owners make no effort to improve clinician skills. A consultant who has asked for anonymity, for himself and his client, shared with us a letter he wrote, explaining to a regular client why he could no longer represent them before their RHHI and the subsequent appeal levels, QICS, MACs and ALJs.
This agency had been hit with an unusual number of payment denials recently but dediced that the reason was its location within a region CMS has targeted as a high-fraud area. In spite of repeated warnings, the consultant found himself unable to make the client understand why he was able to win back payments in some cases but not in others. “Sometimes,” he told RAC Assistance, “the ALJ is right. The only evidence I can present is the clinical documentation I have been provided. When it truly is inadequate, no amount of legal argument, no matter how skilled or eloquent, can convince a judge to overturn a denial.”
With permission, and with both consultant and client identities masked, we reprint this letter in our next article: “Consultant Fires Client Over Inadequate Documentation.” Following that, under a separate headline, we also reprint some specific examples of the kind of documentation problems the consultant presented to his former client, along with his suggestions of how this client’s staff might have documented differently.
