Eastern Pennsylvania Geriatrics Society

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

History of MHB 1982 Tax Equity and Fiscal Responsibility

Act of 1982 creates Medicare hospice benefit

1984 JCAHO initiates hospice accreditation 1986 MHB made permanent by Congress 1991 Recommendation made to include

hospice care in Veteran’s Benefit Package

1993 President Clinton’s health care reform proposal recommends hospice as a nationally guaranteed benefit

1994 HCFA calls attention to documentation and certification problems

Review of MHB Hospice care is a very specific type of care provided

within a defined time frame at the end of life Interdisciplinary group

Nurse Home health aide Medical social worker Chaplaincy/Bereavement Physicians (attending and medical director)

Review of MHB

Pharmaceuticals DME Transportation for care related to the terminal

illness

NHPCO Hospice Facts and Figures2007

Average length of stay 2007 67.4 days 2006 59.8 days

Tax designations of hospice providers Not for profit 48.6% For profit 47% (industry growth in this group)

Percentage of patients/patient care days by payer Medicare 83.6/87, Private 8.5/4.8, Medicaid 5/4.5

Percentage of care days by level of care Routine 95.6, GIP 3.3, Continuous 0.9, Respite 0.2

NHPCO Hospice Facts and Figures2007

More people are dying in facilities Nursing facilities, ALF Hospice inpatient units Acute care hospitals

Benefits of Hospice

Extra care Medication costs to patient reduced Durable Medical Equipment 24 hour availability of nursing

Barriers to Hospice

Medical professionals How to prognosticate Perceived issues with “giving up”

Patients and their families Misunderstanding of hospice care Perceived issues with “giving up”

Hospice Care in the LTC Environment

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

OIG Fiscal Year 2009 Work Rules

Medicare Hospice Care and Nursing Home Residents

Provider Billing Trends in Hospice Utilization

OIG and Trends in Hospice Utilization

Increasing diagnoses Longer stays OIG to examine

Hospice beneficiary characteristics Geographical variations For-profit vs. not-for profit providers

OIG and MHB and NH residents 2001-2004 MHB spending doubled from $3.5 billion

to $7 billion Growth mostly in NH residents

46% fewer nursing and aid services in NH vs. beneficiaries at home

Medical record review/Plan of Care Assessment Services consistent with POC? Payments appropriate?

OIGMedicare Hospice Care for

Beneficiaries in Nursing FacilitiesCompliance with

Medicare Coverage Requirements

OIG – Medicare Hospicein Nursing Facilities

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 Medicare paid ~$1.8 billion for these claims

OIG – Medicare Hospicein Nursing Facilities

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

OIG – Medicare Hospicein Nursing Facilities

Recommendations Educate hospices about coverage requirements Provide tools and guidance to hospices Strengthen monitoring practices

Response from CMS Concurred with recommendations

OIG Fiscal Work Plan for 2010 Physician billing for Medicare hospice beneficiaries

(2010) Duplicate drug claims for hospice beneficiaries

(2010) Trends in Medicare hospice utilization

DISCLAIMER 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

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WHO WE ARE U.S. Attorney’s Office – Eastern District Of Pa.

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 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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Types of Health Care Fraud Cases:

Pharmaceutical Fraud Nursing Homes Hospitals Home Health Care Personal Care Homes Hospice Care

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Theory of Quality of Care Cases 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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Where Health Care Fraud Cases Come From

CMS Private Attorneys Newspapers State Surveyors Public Self-Initiated County Officials/Referrals MFCU Relators

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Where We Get Our Evidence

Interview Employees/Former Employees Undercover Operations

Issues – Consent Location Is the patient always in their room

Flip an employee Subpoena Records Review Records

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General Health Care Fraud Issues

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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Concerns Specific to Hospice Revocation issues/election issues Plan of care Routine care/continuous care/inpatient care Patient eligibility

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Hypothetical 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.

Hypo (cont’d) 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.

Hypo (cont’d) 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.

Hypo (cont’d) 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.

Hypo (cont’d) 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.

Hypo (The End) 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.