New Attorney General Issues First Formal Guidance on the Evaluation of Corporate Compliance Programs in Federal Fraud Investigations

On February 8th, the U.S. Department of Justice (DOJ) issued new guidance on how the DOJ will evaluate corporate compliance programs during fraud investigations in determining whether to bring charges or negotiate settlements. The new guidance, which can be found on agency’s website as the “Evaluation of Corporate Compliance Programs,” lists 119 “sample questions” that the DOJ Fraud Section finds relevant to its analysis.  

The questions are organized into the following categories:

1. Analysis and Remediation of Underlying Conduct

2. Senior and Middle Management

3. Autonomy and Resources

4. Policies and Procedures

5. Risk Assessment

6. Training and Communications

7. Confidential Reporting and Investigation

8. Incentives and Disciplinary Measures

9. Continuous Improvement, Periodic Testing and Review

10. Third Party Management

11. Mergers & Acquisitions

Yates Memo Invoked to Hold Owner of California Physical Therapy Provider Personally Liable For Fraud

An owner and operator of rehabilitation clinics in Walnut, Torrance, and Los Angeles, California found to have defrauded Medicare out of $3 million by billing for unnecessary services has been sentenced to 121 months in prison based on Yates Memo principles.  

Read more here: http://blog.providertrust.com/blog/healthcare-business-owner-is-just-as-liable-for-fraud  

Home Heath Gets New Conditions of Participation

The Centers for Medicare and Medicaid Services (CMS) released a final rule on January 13, 2017, that modernizes home health agency Conditions of Participation (CoPs).

Many home health CoPs have not been comprehensively updated since the 1990s, when most of the requirements were first created. The CoPs govern how home health agencies can qualify to participate in the federal and state healthcare system.

Katie Goodrich, CMS chief medical officer and director of the Center for Clinical Standards and Quality for CMS, stated that, “Our priority is to ensure that Medicare and Medicaid beneficiaries who receive health services at home get the highest level of patient-centered care from home health agencies. Today’s announcement is the first update in many years to Medicare and Medicaid home health agency rules and reflects current best practices for in-home care, based on recommendations from stakeholder and medical evidence.”

Currently, there are more than 5 million Medicare and Medicaid beneficiaries receiving home health services and, according to a 2016 report issued by the Office of Inspector General (OIG), Medicare reimbursed approximately $18.4 billion for home health care in 2015.  

Many of the themes incorporated into the final rule relate to patient-centered care, outcome oriented processes, and data driven results. Changes addressed in the final rule include:

·         An expanded patients’ rights section that explicitly sets forth the rights of home health agency patients and requires agencies to provide patients and their representatives with a notice of those rights;

·         New infection prevention and control section that focuses on standard precautions as set out by national and industry best practice standards;

·         An expanded patient care coordination requirement;

·         A new requirement for home health agencies to implement a data-driven, agency-wide quality assessment and performance improvement (QAPI) program that will require continuous evaluation; and

·         New personnel qualifications for home health agency administrators and clinical managers.

Among the above changes, the final rule incorporates additional provisions, which include: an expanded comprehensive patient assessment requirement, additional documentation requirements, and expanded supervision requirements. CMS estimates the new CoPs will cost roughly $293.3 million in the first year. With an effective date of July 13, 2017, home health agencies must be proactive in implementing the required changes to remain in compliance.  

To read the full final rule please visit: https://www.federalregister.gov/documents/2017/01/13/2017-00283/medicare-and-medicaid-program-conditions-of-participation-for-home-health-agencies.

New California Bill Introduced Regarding Residents Affected by Skilled Nursing Facility Closures

On February 2, 2017, California Assemblymember Jim Wood (D-Healdsburg), introduced AB 275 that would provide certain protections to residents of skilled nursing facilities (SNFs) when those facilities have a change in license status or operation, such as closure.  

Among other changes, AB 275 requires facilities to provide 90 days’ notice to residents and, if resident’s concerns cannot be appropriately addressed, the California Department of Public Health (CDPH) can extend this period for another 90 days. The bill requires a resident assessment by both a physician and mental health professional and gives CDPH the authority to require a resident transfer plan to assure that residents’ needs have been considered. Last, whenever two or more SNFs propose to close on the same date, the SNFs will be required to prepare a comprehensive community impact report. 

Read the text of the bill here: http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB275.

HHS Expands OIG’s Exclusion Authorities With New Final Rules

On January 12, 2017, the OIG issued new final rules expanding exclusion authority for compliance violations.

Major changes included:

• Implementation of a 10-year statute of limitations period. 

• Increased length of exclusion for certain financial losses

• Expansion of exclusion regulations to cover obstruction of an “audit.” 

• Change the presumption against reinstatement to 3 years for non-licensed individuals, except in certain circumstances. 

• Confirming that exclusion period for those with ownership or control of an excluded entity should be the same as the excluded entity. 

• Exclusion of individuals and entities that make false statements or misrepresent material facts.

Read the full text of the announcement and final regulations here.

2016-2017 SNF Rates Published -- Payout Increases Over $148 Million

Final 2016-2017 SNF rates were published on the AB1629 website on January 9, 2017. In total, this year's global rate cap increase of 3.62 percent, plus add-ons, results in an additional $148 million dollars for SNFs.

Based on the January 9, 2017 publication date, the SNF rates will be uploaded to the Medi-Cal provider master file within 30-60 days. Once loaded to the provider master file, members should begin receiving payment based on the final 2016-2017 rates.

At that time, an erroneous paid claims (EPC) notice will be created to adjust all claims to agree with the final published rates. The EPC process will take approximately six to nine months to complete and will re-adjudicate claims from the beginning of the rate year (August 1, 2016) to the date the rates are loaded into the provider master file.

Read more at: 

http://newsmanager.commpartners.com/cahfeu/issues/2017-01-12/index.html

Skilled Nursing Operator to pay $170,000 for Falsifying Records

Autumn Health Care of Zanesville and its owner, Steven Hitchens, both pleaded guilty to multiple charges in October following an investigation that revealed that the organization, including Hitchens and a number of facility managers had altered, forged, and, in some cases, destroyed records in order to maintain Medicare and Medicaid funding.

Among the charges against Hitchens and Autumn Health Care are: 

• providing unnecessary skilled therapy to Medicaid residents and billing Medicare Part B to pay for these unnecessary medical services; 

• falsely reporting unnecessary medical services in order to receive a higher reimbursement rate from the Ohio Department of Medicaid; 

• systematically falsifying resident records to defraud the Ohio Department of Health in an effort to make it appear that missed medical treatments were actually provided;

• destroying a record outlining an incident involving an ill resident who was found in a snow bank after escaping the facility and forging a new record that falsely described the incident in order to avoid a citation from the Ohio Department of Health. 

• forging a registered nurse's signature on resident assessments that were electronically sent to the Ohio Department of Health to bypass a requirement that a registered nurse certify the accuracy of the assessment.

The organization will be required to repay more than $52,000 to the Ohio Department of Medicaid, and an additional $40,000 in investigative costs to Attorney General Mike DeWine’s Office. Hitchens was ordered to serve three years of community control, 100 hours of community service, and is now under a period of federal exclusion from the Medicare and Medicaid programs as a result of his conviction.

Additionally, several of the organization’s managers and employees were all also sentenced to community controls and are under a period of federal exclusion from the Medicare and Medicaid programs. As a result, to their convictions, the Ohio State Board of Nursing permanently revoked the nursing licenses of all the nurses convicted of felonies.

For more information regarding this case visit: http://www.mcknights.com/news/provider-to-pay-nearly-170000-for-falsifying-destroying-records/article/630792/?DCMP=EMC-MCK_Weekly&spMailingID=16320456&spUserID=MTM0NDIzMDk1MDgwS0&spJobID=940972772&spReportId=OTQwOTcyNzcyS0

CMS Finalizes New Medicare and Medicaid Home Health Care Rules and Beneficiary Protections

On January 9, 2017, CMS released a new Final Rule governing home health agencies.  Read here for more and a link to the new rules: https://www.cms.gov/Newsroom/MediaReleaseDatabase/Press-releases/2017-Press-releases-items/2017-01-09.html

First HIPAA enforcement action for lack of timely breach notification settles for $475,000

On January 9, 2017, the OCR announced  a $475,000 HIPAA settlement based on the untimely reporting of a PHI breach.  Do you know what to do in the event of a breach? Read here for more...