Determining "Medical Necessity" in an Government Review of Skilled Nursing Facility Records Judy...

Determining "Medical Necessity" in an Government Review of Skilled Nursing Facility Records

Judy Wilhide Brandt, RN, BA, RAC-MT, C-NE

Wilhide Consulting, Inc.

www.judywilhide.com

August 2015

http://www.judywilhide.com/

Speaker Disclosures

Judy Wilhide Brandt, RN, RAC-MT, C-NE has disclosed that she has no relevant financial relationship(s).

Learning ObjectivesBy the end of the session, participants will be able to:• Recognize possible government audit types: Recovery

Auditor (RAC), Medicare Administrative Contractor (MAC), Zone Program Integrity Contractor (ZPIC);

• Understand Department of Justice (False Claims Actions), procedures and possible outcomes

• Examine role of physician/npp documentation in substantiating "medical necessity" in a SNF Medicare clinical record during any government probe.

• Examine recent cases in which the government successfully brought False Claims actions against nursing facility owners for substandard quality of care and/or Medicare/Medicaid fraud.

AMDA Long Term Care Medicine - 2014

Government Landscape 2005 - now

https://paymentaccuracy.gov/programs/medicare-fee-service

Historical Projection


Percentage Distribution of Improper Payments (FY 2013)

Jan 15, 2015: https://paymentaccuracy.gov/govt-wide-pie-chart

Medicare 34%

Medicare Advantage 11.1 % Medicaid 13.6%

SNFs are inherently overpaid medpac.gov

• MedPAC Report 1/13/15: Need for skilled nursing facility payment reform is urgent, payment system design flawed SNF payments are now the least accurate since 2006 Therapy payment based on amount SNF chooses to

provide, rather than patient characteristics and clinical need for therapy

Non-therapy ancillary (NTA) reimbursement is tied to nursing staff time, but NTA service costs are not correlated with nursing costs.

This encourages the SNF to focus on admitting therapy patients and furnishing lots of therapy to them. Over time, the share of intensive therapy days has steadily grown.

SNFs are billing inappropriatelyhttps://oig.hhs.gov/oei/reports/oei-02-09-00200.asp

CMS should instruct its contractors to:• Increase SNF medical review• Target known problem payment issues.

• Rehab Resource Utilization Groups (RUGs)

• Identify SNFs with recurring problems & target these for further investigation

11-09-2012: Inappropriate Payments to Skilled Nursing Facilities Cost Medicare More Than a Billion Dollars in 2009 - Conclusions


http://www.paymentaccuracy.gov/about-improper-payments#q2

Are All Improper Payments Fraud?• No. In fact, the vast majority of improper payments

are due to unintentional errors. For example, an error may occur because a program does not have documentation to support a beneficiary’s eligibility for a benefit

• Also, many of the overpayments are payments that may have been proper, but were labeled improper due to a lack of documentation confirming payment accuracy. We believe that if agencies had this documentation, it would show that many of these overpayments were actually proper and the amount of improper payments actually lost by the government would be even lower than the estimated net loss discussed above.

SNF Chart

MAC

Medicaid

RAC DOJ ZPIC

CERT

OIG

Many Agencies Charged with Oversight

Medicare Administrative Contractor (MAC):

• Perform medical review: The collection of information and clinical review of

medical records by Medicare Administrative Contractors to ensure that payment is made only for services that meet the Medicare coverage, coding and medical necessity requirements.• Refer to fraud investigators as appropriate• Recoupment

• Perform claim appeals• Process claims• Enroll providers• Provide educations

NH: National Gov Services (NGS)VA: Palmetto

Recovery Audit Program (RAC Audits)

• Purpose: to recoup overpayments associated with services for which payment is made under Medicare part A or B

http://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medicare-FFS-Compliance-Programs/Recovery-Audit-Program/Downloads/RAC-Program-Improvements.pdf

Recovery Audit Enhancements 2015• Recovery Auditors are required to have a Contractor

Medical Director and are encouraged to have a panel of specialists available for consultation.

• Recovery Auditors will not receive a contingency fee until after the second level of appeal is exhausted.

• CMS will require the Recovery Auditors to broaden their review from primarily hospitals to include all claim/provider types, and will be required to review certain topics based on a referral, such as an OIG report.


Recovery Audit Enhancements 2015

• Recovery Auditors will be required to maintain an overturn rate of less than 10% at the first level of appeal, excluding claims that were denied due to no or insufficient documentation or claims that were corrected during the appeal process.

• Recovery Auditors will be required to maintain an accuracy rate of at least 95%.


ZPIC: Zone Program Integrity Contractor

•Primary Goal: Investigate instances of suspected fraud, waste, and abuse:

• ZPICs may: Request medical records and documentation; Conduct an interview Conduct an onsite visit Identify the need for a prepayment or auto-denial edit

and refer these edits to the MAC for installation Withhold payments; and, Refer cases to law enforcement.

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http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/Fraud_and_Abuse.pdf


Intentional Deception

Bending the RulesInefficienciesMistake

Incorrect CodingError

Medically unnecessary

servicesWaste

Improper billing:

upcodingAbuse

Billing for services/supplies not provided

Fraud

http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/Fraud_and_Abuse.pdf

Types of Improper Payments

Program Integrity encompasses a range of activities to target the various causes of improper payments:

Department of Justice

• Fraud is making false statements or misrepresentation of material facts to obtain some benefit or payment for which no entitlement exists. Intentional deception or misrepresentation by a person that could result in some unauthorized benefit to them or some other person.

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False Claims Act Very Briefly

• (a) Any person who knowingly causes to be presented a false/fraudulent

claim knowingly makes, uses, or causes to be made or used, a

false record or statement to get a false or fraudulent claim paid;

conspires to defraud by getting a false or fraudulent claim paid or approved by the Government;. . .

Or knowingly makes, uses, or causes to be made or used, a

false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government,

• Is liable to the United States Government for a civil penalty of not less than $5,500 and not more than $11,000, plus 3 times the amount of damages which the Government sustains because of the act of that person.

Per Claim

• (b)The terms "knowing" and "knowingly" mean that a person(1) has actual knowledge of the information;

(2) acts in deliberate ignorance of the truth or falsity of the information;

or

• (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.

Are you confident in your knowledge of

SNF Medicare level of care requirements?


• These problems stemmed in large part from business model driven more by profit and less by the quality of the care it provided.

• [SNF Corp] employed fewer skilled nurses than were needed to care for the very sick residents in those facilities and failed to properly train and supervise the staff it did have.

• Many disturbing examples of falls, fractures and head injuries to residents – often unnoticed by the staff for hours – as well as malnutrition, dehydration, pressure ulcers and infections - some of which required amputations and unnecessary hospitalizations. Moreover, the chronic staff shortages and poorly trained staff meant that residents who needed assistance with feeding and toileting didn’t get that assistance, many residents were not washed, resulting in poor hygiene, fluids were not provided, and residents were not re-positioned for comfort and to prevent pressure ulcers.

• Short-term residents did not get the minimum skilled care that they needed and [SNF Corp]’s long-term care residents were often ignored.

• 10 million was for medically unnecessary therapy

DOJ Press Release Oct 10, 2014

[Multi-State SNF Corp] agrees to 38 million settlement: 33 SNFs in 8 states


Two Companies to Pay $3.75 Million for Allegedly Causing Submission of Claims for Unreasonable or Unnecessary Rehabilitation Therapy at Skilled Nursing Facilities The settlement resolves allegations that [SNFs] failed to prevent [Rehab company] practices designed to inflate Medicare reimbursement, including:• in lieu of using individualized evaluations to determine the level of care most

suitable for each patient’s clinical needs, presumptively placing patients in the highest reimbursement level unless it was shown that the patients could not tolerate that amount of therapy;

• providing the minimum number of minutes of therapy required to bill at the highest reimbursement level while discouraging the provision of therapy in amounts beyond that minimum threshold, despite the Medicare requirement that the amount of care provided be determined by patients’ clinical needs;

• arbitrarily shifting the number of minutes of planned therapy between therapy disciplines to ensure targeted reimbursement levels were achieved; and

• reporting estimated or rounded minutes instead of reporting the actual minutes of therapy provided.

DOJ Press Release 9/5/14


Nursing Home Operator to Pay $48 Million to Resolve Allegations That Six California Facilities Billed for Unnecessary Therapy Specifically, the government alleges [SNF] • provided therapy to patients whose conditions and diagnoses did not warrant it,

solely to increase reimbursement from Medicare. • created a corporate culture that improperly incentivized therapists and others to

increase the amount of therapy provided to patients to meet planned targets for Medicare revenue, set without regard to individual needs

• [SNF] billed for inflated amounts of therapy it had not provided and that certain patients were kept in these facilities for periods of time exceeding what was medically necessary for treatment of their conditions.

“This settlement – one of the largest Medicare fraud cases against a nursing home chain in U.S. history – demonstrates our commitment to protecting taxpayers who fund important programs that benefit millions of Americans, but don’t want to see their hard-earned money wasted on fraud or abuse.”

DOJ Press Release Fall 2013

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• [Redacted] which owns nursing homes in NC has agreed to pay nearly $1 million to settle federal allegations that it defrauded the Medicare program following a multi-year investigation by the FBI and HHS.

• The rehabilitation contractor, [redacted] put intense management pressure on its employees to maximize billing. Evergreen billed for unnecessary services and forwarded the billings to [the SNF], which then wrongfully billed those costs to Medicare.

From Asheville Citizen Times Newspaper: 2/11/11

Minneapolis Star Tribune 12/7/11

• The U.S. Justice Department has sued a large health care company based in Kentucky, alleging that it paid more than $10 million in kickbacks for access to Medicare and Medicaid patients living in a chain of nursing homes.

• U.S. attorney said [redacted large Rehab Contractor]. began making illicit payments in 2006 as part of a deal with Missouri businessmen who owned 62 nursing homes in their state and an in-house company that provided health services to the residents. The deal was premised on [Rehab Contractor] plan to take control of the services and expand billings under Medicare and Medicaid, the complaint said.

DOJ press release: 6/28/12:

• The US Attorney’s Office Southern District of Iowa has entered into a settlement agreement and the HHS OIG has entered into a corporate integrity agreement with [stand alone faith based non-profit SNF], to resolve allegations of billing Medicare for medically unnecessary physical, occupational and speech therapy services

• [SNF] has paid the sum of $675,000 to settle the allegations, and entered into a corporate integrity agreement to ensure future compliance with federal health care program requirements.

Physician/NPP Role in Ensuring Skilled Level of Care Requirements are Met

Medicare Benefit Policy Manual, Chapter 8 Coverage of Extended Care (SNF) Services Under Hospital Insurance, Revised 4/4/14

40 - Physician Certification and Recertification of Extended Care Services

• Payment for covered posthospital extended care services may be made only if a physician makes the required certification, and where services are furnished over a period of time, the required recertification regarding the services furnished. 40.1: Statements must be signed by the attending physician

or a physician on the staff of the skilled nursing facility who has knowledge of the case, or by a physician extender:• Nurse practitioner (NP)• Clinical nurse specialist (CNS) or • Physician assistant (PA)

who does not have a direct or indirect employment relationship with the facility, but who is working in collaboration with the physician.

40 - Physician Certification and Recertification of Extended Care Services

• If a physician/NPP refuses to certify, because, in his/her opinion, the patient does not, as a practical matter, require daily skilled care for an ongoing condition for which he/she was receiving inpatient hospital services (or for a new condition that arose while in the SNF for treatment of that ongoing condition), the services are not covered and the facility can bill the patient directly.

• The reason for the refusal to make the certification must be documented in the SNF’s records.

Required Timetable:

Initial Certification:

• On admission or “as soon thereafter as practical.”

First Recertification:

• On or before day 14 of the stay.

Subsequent Recertifications:

• Intervals not exceeding 30 days from last certification.

Delayed Certifications:

•Will be honored where there has been an isolated oversight or lapse. ▫ Must include an

explanation and relevant evidence for the delay. SNF may choose format.

Medicare General Information, Eligibility, and Entitlement, Ch. 4 – Physician Certification and Recertification: 40 - Certification and Recertification by Physicians for Extended Care Services

• The certification must clearly indicate that posthospital extended care services were required to be given on an inpatient basis because of the individual's need for skilled care on a continuing basis for any of the conditions for which he/she was receiving inpatient hospital services.

• Recertifications must contain an adequate written record of the reasons for the continued need for extended care services, the estimated period of time required for the patient to remain in the facility, and any plans, where appropriate, for home care.

MBPM, Ch 8, Section 30: SNF Level of Care

Care in a SNF is covered if all of the following four factors are met:

1. The patient requires skilled nursing or skilled rehabilitation services, are ordered by a physician and the services are rendered for a condition for which the patient received inpatient hospital services or for a condition that arose while receiving care in a SNF for a condition for which he received inpatient hospital services;

2. The patient requires these skilled services on a daily basisa. Five days a week for therapy

b. Seven days a week for nursing

MBPM, Ch 8, Section 30: SNF Level of Care

3. As a practical matter, considering economy and efficiency, the daily skilled services can be provided only on an inpatient basis in a SNF

4. Services delivered are reasonable and necessary for the treatment of a patient’s illness or injury, i.e., are consistent with the nature and severity of the individual’s illness or injury, the individual’s particular medical needs, and accepted standards of medical practice. The services must also be reasonable in terms of duration and quantity.

If any one of these four factors is not met, a stay in a SNF, even though it might include the delivery of some skilled services, is not covered. For example, payment for a SNF level of care could not be made if a patient needs an intermittent rather than daily skilled service.

30.2.2 - Principles for Determining Whether a Service is Skilled

• If the inherent complexity of a service prescribed for a patient is such that it can be performed safely and/or effectively only by or under the general supervision of skilled nursing or skilled rehabilitation personnel, the service is a skilled service “Skilled nursing” = licensed nurses (RNs performing services

or supervising LPNs) performing tasks that may not be performed by unlicensed staff

“Skilled therapy” = licensed therapists (OT or PT performing or supervising assistants) performing tasks that require the knowledge, skills and judgement of a licensed therapist • SLP must be performed by a Speech Therapist (Medicare does not

allow Speech assistants)

30.2.3.1 - Management and Evaluation of a Patient Care Plan

• The development, management, and evaluation of a patient care plan, based on the physician’s orders and supporting documentation, constitute skilled nursing services when, in terms of the patient’s physical or mental condition, these services require the involvement of skilled nursing personnel to meet the patient’s medical needs, promote recovery, and ensure medical safety. However, the planning and management of a treatment plan that does

not involve the furnishing of skilled services may not require skilled nursing personnel; e.g., a care plan for a patient with organic brain syndrome who requires only oral medication and a protective environment.

The sum total of nonskilled services would only add up to the need for skilled management and evaluation when the condition of the beneficiary is such that there is an expectation that a change in condition is likely without that intervention.

30.2.3.2 - Observation and Assessment of Patient’s Condition

• Observation and assessment are skilled services when the likelihood of change in a patient’s condition requires skilled nursing or skilled rehabilitation personnel to identify and evaluate the patient’s need for possible modification of treatment or initiation of additional medical procedures, until the patient’s condition is essentially stabilized.


• If a patient was admitted for skilled observation but did not develop a further acute episode or complication, the skilled observation services still are covered so long as there was a reasonable probability for such a complication or further acute episode. “Reasonable probability” means that a potential complication or further acute episode was a likely possibility.

• Information from the patient's medical record must document that there is a reasonable potential for a future complication or acute episode sufficient to justify the need for continued skilled observation and assessment.

• Such signs and symptoms as abnormal/fluctuating vital signs, weight changes, edema, symptoms of drug toxicity, abnormal/fluctuating lab values, and respiratory changes on auscultation may justify skilled observation and assessment.


• Where these signs and symptoms are such that there is a reasonable potential that skilled observation and assessment by a licensed nurse will result in changes to the treatment of the patient, then the services are reasonable and necessary.

• However, observation and assessment by a nurse is not reasonable and necessary to the treatment of the illness or injury where these characteristics are part of a longstanding pattern of the patient's waxing and waning condition which by themselves do not require skilled services and there is no attempt to change the treatment to resolve them.


• Skilled observation and assessment may also be required for patients whose primary condition and needs are psychiatric in nature or for patients who, in addition to their physical problems, have a secondary psychiatric diagnosis. These patients may exhibit acute psychological symptoms such as depression, anxiety or agitation, which require skilled observation and assessment such as observing for indications of suicidal or hostile behavior.

• However, these conditions often require considerably more specialized, sophisticated nursing techniques and physician attention than is available in most participating SNFs. (SNFs that are primarily engaged in treating psychiatric disorders are precluded by law from participating in Medicare.) Therefore, these cases must be carefully documented.


Examples:• IM or IV injections or feedings • Enteral feeding at least 26 % daily calorie requirements

and provides at least 501 cc per day• Naso-pharyngeal and tracheotomy aspiration;• Insertion, sterile irrigation, and replacement of suprapubic

catheters;

• Early stages of oxygen therapy: Chronic O2 use not skilled

• Care of colostomy early post op w/complications

30.3 - Direct Skilled Nursing Services to Patients

• Heat treatments ordered by MD as part of active treatment

• Treatment of decubitus ulcers, Stage 3 or worse, or a widespread skin disorder

• Application of dressings involving prescription medications and aseptic techniques. The following are not considered skilled nursing: Changes of dressings for uninfected post-operative or chronic

conditions is unskilled Prophylactic and palliative skin care, including bathing and

application of creams, or treatment of minor skin problems

30.3 - Direct Skilled Nursing Services to Patients

30.4 Direct Skilled Therapy Services to Patients

• Coverage for skilled therapy services does not turn on the presence or absence of a beneficiary’s potential for improvement from therapy services, but rather on the beneficiary’s need for skilled care.

• Therapy services are considered skilled when they are so inherently complex that they can be safely and effectively performed only by, or under the supervision of, a qualified therapist.

• These skilled services may be necessary to improve the patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.

Skilled therapy services must meet all of the following conditions:

• The services must be directly and specifically related to an active written treatment plan that is based upon an initial evaluation performed by a qualified physical therapist after admission to the SNF and prior to the start of therapy services in the SNF that is approved by the physician after any needed consultation with the qualified physical therapist.

• Approval can be: Signing the POT Signing the order with frequency, duration, modalities Signing the MD Cert with frequency, duration, modalities

Skilled therapy services must meet all of the following conditions:

• The services must be provided with the expectation, based on the assessment made by the physician of the patient’s restoration potential, that the condition of the patient will improve materially in a reasonable and generally predictable period of time; or,

• the services must be necessary for the establishment of a safe and effective maintenance program; or, the services must require the skills of a qualified therapist for the performance of a safe and effective maintenance program.

30.2.2.1 – Documentation to Support Skilled Care DeterminationsClaims for skilled care coverage need to include sufficient documentation to enable a reviewer to determine whether—

• Skilled involvement is required in order for the services in question to be furnished safely and effectively; and

• The services themselves are, in fact, reasonable and necessary for the treatment of a patient’s illness or injury, i.e., are consistent with the nature and severity of the individual’s illness or injury, the individual’s particular medical needs, and accepted standards of medical practice. The documentation must also show that the services are appropriate in terms of duration and quantity, and that the services promote the documented therapeutic goals.

30.2.2.1 – Documentation to Support Skilled Care Determinations• It is expected that the documentation in the patient’s

medical record will reflect the need for the skilled services provided.

• The patient’s medical record is also expected to provide important communication among all members of the care team regarding the development, course, and outcomes of the skilled observations, assessments, treatment, and training performed.

• Taken as a whole, then, the documentation in the patient’s medical record should illustrate the degree to which the patient is accomplishing the goals as outlined in the care plan.

Therefore the patient’s medical record must document as appropriate:• H&P exam, (including the response or changes in

behavior to previously administered skilled services);• Skilled services provided;• Patient’s response to the skilled services provided

during the current visit;• Plan for future care based on the rationale of prior

results.• Detailed rationale that explains the need for the skilled

service in light of the patient’s overall medical condition and experiences;

• Complexity of the service to be performed;• Any other pertinent characteristics of the beneficiary.

Suggestions from a “government legal expert”

• Be exceptionally involved in therapy delivery Get to know the therapists Attend their meetings Ask questions/give direction for the POT

• Be the SNF level of care director: Attend periodic Medicare meetings Communicate with Administrator, DON, Nursing Management about

level of care criteria

• Document often and in depth on SNF residents: Why is skilled observation/assessment necessary? What required skilled management? How is therapy going? Why is it necessary?

• Trust your gut• Follow you internal “true north star”

Discharge from Part A

• We are required to give a resident notice of the last covered day of Medicare A no later than two days prior to the last covered day. Within that parameter, trust your knowledge of skilled

level of care requirements, talk to you team, and steer the ship.• Don’t let the ship steer you.

Section 260, of Chapter 30 of the CMS Claims Processing Manual,

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