Recognizing and Reporting Fraud, Waste and Abuse in Home Health Care (Review)

You will find in this section, the information needed to prepare for the Home Health Aide In-Service exam. You can view, download and print for better preparation.

RECOGNIZING AND REPORTING FRAUD, WASTE AND ABUSE

Although no precise measure of health care fraud exists, those who exploit Federal health care programs can cost taxpayers billions of dollars while putting beneficiaries' health and welfare at risk. The impact of these losses and risks magnifies as Medicare continues to serve a growing number of beneficiaries.

You play a vital role in protecting the integrity of the Medicare Program. To combat fraud and abuse, you must know how to protect your organization from engaging in abusive practices and violations of civil or criminal laws.

What is Fraud?

Fraud is an intentional act of deception, misrepresentation, or concealment to gain something of value.

Healthcare fraud, including Medicare fraud, includes:

1. Knowingly submitting, or causing to be submitted, false claims or making misrepresentations of fact to obtain a Federal health care payment for which no entitlement would otherwise exist.

2. Knowingly soliciting, receiving, offering, or paying remuneration (e.g., kickbacks, bribes, or rebates) to induce or reward referrals for items or services reimbursed by Federal health care program.

3. Knowingly billing for services at a level of complexity higher than services provided or documented in the medical records.

4. Knowingly billing for services not furnished, supplies not provided, or both, including falsifying records to show delivery of such items.

5. Knowingly ordering medically unnecessary items or services for patients.

6. Paying for referrals of Federal health care program beneficiaries.

7. Billing Medicare for appointments patients fail to keep.

Serious civil, criminal, and administrative penalties are at risk when an organization commits fraud. Individuals who commit fraud may even face imprisonment.

Clinicians caring for patients must remember that their documentation constitutes what will be billed and makes up the patient clinical record. Individuals responsible for agency billing can only knowingly bill for what is presented by the clinician's documentation.

Therefore, it is critical that documentation reflect actual visit time, actual mileage, and actual care provided.

It is important to reflect the clinical condition, care needs, and care provided to patients in an accurate manner for each home health visit documented. Documentation of care provided must reflect only the care that the patient received for each visit.

While the patient's plan of care may include orders for specific interventions, if the patient refused specific care or the interventions were not conducted for any reason, it is important that documentation reflect this.

Visit documentation should never imply that care or interventions that were unable to be provided were conducted.

Similarly, should a patient indicate that he or she elects not to receive care, it is important to respect the patient's wishes. Patients have a right to refuse care, including choosing not to receive specific care interventions, such as nursing care, home health aides, physical therapy, or medical social work visits.

Home health staff should never pressure patients or provide incentives to patients to receive care under any circumstances. CMS and the OIG have made clear that incentivizing and pressuring patients to receive any type of services, whether covered by Medicare or not, is unacceptable behavior by providers and can be considered fraud and/or abuse.

Fraud can also involve practices within the home health office, including billing and coding practices. For example, improperly billing for supplies on a claim that were not provided to a patient. Even when payers do not reimburse for certain supplies, adding these to the claim when they were not used for the patient is inappropriate. All home health team members must work together to be sure that items like supplies are properly accounted for and not assigned to patients in error. Working together as a team, all home health staff can prevent improper billing practices.

FRAUD PRACTICE SCENARIO

Sally is the biller for a home health agency, and she is reviewing several claims on skilled wound care patients for billing to Medicare.

She notices that all the visits in the 30-day billing period have the following supplies attached to them: gloves, normal saline bullet x2, 4x4 gauze pads, Kerlix wrap x 1, Mepilex.

The patient's primary diagnosis for the 30-day period is Diabetes with foot ulcer, so she assumes these supplies are for the foot ulcer.

When she generates the claim, she notices that the patient received visits three times per week for the first 2 weeks of the 30-day period (6 visits), then only two visits in the second 2 weeks of the 30-day period.

Sally checked this against the plan of care frequency order which indicated nursing visits were ordered three times per week for 6 weeks. Sally verified that the clinical billing period review was completed, and her agency clinical director stated, "yes, everything is reviewed, just bill the claim and don't worry about it!"

Sally was concerned as the services did not seem to match up, but figured she is not a nurse, or a clinician and she should do what she is told, so she completed the billing.

Was Sally's action correct in completing the billing of the 30-day claim?

Sally's suspicion may have been correct that the billing period review was not completed correctly. When she noted that the frequency completed did not match up with that which was ordered, she acted correctly in investigating further with the clinical director.

However, when she was not completely certain that the director's response was accurate, she should have taken additional steps to verify information for the claim prior to billing.

What risks were presenting by Sally completing the billing without further investigation?

Because Sally went forward with billing the claim without further investigation, it is possible that her instincts were current and there were inaccuracies. Regardless of your position within the organization, you should always take steps to assure that inaccuracies are not present within documentation or claims before these are finalized.

Because the frequency of visits decreased significantly, it is possible that the patient's wound resolved and no longer required dressing changes. This would have made it inappropriate to include some of the wound supplies on the final claim.

Even though Medicare does not reimburse providers for wound care supplies, it is still inappropriate to include supplies on the claim that were not used for the patient.

Medicare does use this data to calculate costs incurred in the overall care of patients by home health agencies.

Failure to report accurate data results in improper cost reporting.

Other considerations about this claim would include medical necessity for the change/reduction in frequency and supportive documentation.

The medical record will need to assure that this is clearly supported by physician orders as well as patient agreement.

What is Abuse

Abuse is the excessive or improper use of health care services or actions that are inconsistent with acceptable business and/or medical practice.

Abuse also refers to incidents that, although not considered fraudulent, may directly or indirectly cause monetary loss to the payer while providing indirect financial gain to the provider.

It is often difficult to differentiate between fraud and abuse.

Many cases of fraud and abuse may be differentiated only by specific facts, circumstances, intent, and knowledge of the activities involved.

Examples of Medicare abuse include:

• Billing for unnecessary medical services

• Charging excessively for services or supplies

• Misusing codes on a claim, such as upcoding or unbundling codes. (Upcoding is when a provider assigns an inaccurate billing code to a medical procedure or treatment to increase reimbursement)

Medicare abuse can also expose providers to criminal and civil liability.

For example, choosing to assign a diagnosis code to a claim that will result in a slightly higher payment grouping than the diagnosis the patient has is considered misrepresentation of the patient's condition.

This practice is called “upcoding" and when done knowingly or unknowingly is considered abuse.

Bending the rules in this manner, even when only on a limited basis, is never acceptable as the provider's payment will be more than the amount allowed for the correct condition.

CMS and the OIG have implemented a number of audit methods to maintain program integrity and verify the accuracy of provider billing. The Medicare Program may review beneficiaries' medical records. Good documentation helps address any challenges raised about the integrity of claims. Ensure your documentation supports the claims you submit for payment.

Good documentation practices help to ensure your patients get appropriate care and allow other providers to rely on your records for patients' medical histories.

Federal Laws Regulating Fraud, Abuse, and Waste

There are a number of federal laws and rules that help to govern fraud, waste, and abuse and impose penalties, fines, and other punishments on those who intentionally or unintentionally violate these laws.

Federal laws governing Medicare fraud and abuse include the:

• False Claims Act (FCA)

• Anti-Kickback Statute (AKS)

• Physician Self-Referral Law (Stark Law)

• Social Security Act, which includes the Exclusion Statute and

the Civil Monetary Penalties Law (CMPL)

• United States Criminal Code

These laws specify the criminal, civil, and administrative penalties and remedies the government may impose on individuals or entities that commit fraud and abuse in the Medicare and Medicaid Programs.

Violating these laws may result in nonpayment of claims, Civil Monetary Penalties (CMP), exclusion from all Federal health care programs, and criminal and civil liability.

Government agencies, including the U.S. Department of Justice (DOJ), the U.S. Department of Health & Human Services (HHS), the HHS Office of Inspector General (OIG), and the Centers for Medicare and Medicaid Services (CMS), enforce these laws.

Federal Civil False Claims Act (FCA)

The civil FCA, 31 United States Code (U.S.C.) Sections 3729-3733, protects the Federal Government from being overcharged or sold substandard goods or services.

The civil FCA imposes civil liability on any person who knowingly submits, or causes the submission of, a false or fraudulent claim to the Federal Government.

The terms "knowing" and "knowingly” mean a person has actual knowledge of the information or acts in deliberate ignorance or reckless disregard of the truth or falsity of the information related to the claim.

No specific intent to defraud is required to violate the civil FCA.

Civil penalties for violating the civil FCA may include recovery of up to three times the amount of damages sustained by the Government because of the false claims, plus financial penalties per false claim filed.

Additionally, under the criminal FCA, 18 U.S.C. Section 287, individuals or entities may face criminal penalties for submitting false, fictitious, or fraudulent claims, including fines, imprisonment, or both.

Anti-Kickback Statute (AKS)

The AKS, 42 U.S.C. Section 1320a-7b(b), makes it a crime to knowingly and willfully offer, pay, solicit, or receive any remuneration directly or indirectly to induce or reward patient referrals or the generation of business involving any item or service reimbursable by a Federal health care program.

When a provider offers, pays, solicits, or receives unlawful remuneration, the provider violates the AKS. Criminal penalties and administrative sanctions for violating the AKS may include fines, imprisonment, and exclusion from participation in the Federal health care program.

Under the CMPL., penalties for violating the AKS may include three times the amount of the kickback. The "safe harbor” regulations, describe various payment and business practices that, although they potentially implicate the AKS, are not treated as offenses under the AKS if they meet certain requirements specified in the regulations.

Physician Self-Referral Law (Stark Law)

The Physician Self-Referral Law, 42 U.S.C. Section 1395nn, often called the Stark Law, prohibits a physician from referring patients to receive “designated health services” payable by Medicare or Medicaid to an entity with which the physician or a member of the physician's immediate family has a financial relationship, unless an exception applies.

Penalties for physicians who violate the Stark Law may include fines, CMPs for each service, repayment of claims, and potential exclusion from participation in the Federal health care programs.

NOTE: This law prohibits physicians from referring patients to a home health agency where the physician has an investment interest.

Criminal Health Care Fraud Statute

The Criminal Health Care Fraud Statute, 18 U.S.C. Section 1347 prohibits knowingly and willfully executing, or attempting to execute, a scheme or lie in connection with the delivery of, or payment for, health care benefits, items, or services to either:

• Defraud any health care benefit program

• Obtain any of the money or property owned by, or under the control of, any health care benefit program (by means of false or fraudulent pretenses, representations, or promises)

Penalties for violating the Criminal Health Care Fraud Statute may include fines, imprisonment, or both.

Exclusion Statute

The Exclusion Statute, 42 U.S.C. Section 1320a-7, requires the OIG to exclude individuals and entities convicted of any of the following offenses from participation in all Federal health care programs:

• Medicare or Medicaid fraud, as well as any other offenses related to the delivery of items or services under Medicare or Medicaid

• Patient abuse or neglect

• Felony convictions for other health care-related fraud, theft, or other financial misconduct

• Felony convictions for unlawful manufacture, distribution, prescription, or dispensing controlled substances

The OIG also may impose permissive exclusions on other grounds, including:

• Misdemeanor convictions related to health care fraud other than Medicare or Medicaid fraud, or misdemeanor convictions for unlawfully manufacturing, distributing, prescribing, or dispensing controlled substances

• Suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity

• Providing unnecessary or substandard services

• Submitting false or fraudulent claims to a Federal health care program

• Engaging in unlawful kickback arrangements

• Defaulting on health education loan or scholarship obligations

Excluded providers may not participate in the Federal health care programs for a designated period. If you are excluded by OIG, then Federal health care programs, including Medicare and Medicaid, will not pay for items or services that you furnish, order, or prescribe.

Excluded providers may not bill directly for treating Medicare and Medicaid patients, and an employer or a group practice may not bill for an excluded provider's services.

At the end of an exclusion period, an excluded provider must seek reinstatement;

reinstatement is not automatic.

Civil Monetary Penalties Law (CMPL)

The CMPL, 42 U.S.C. Section 1320a-7a, authorizes OIG to seck CMPs and sometimes exclusion for a variety of health care fraud violations. Different amounts of penalties and assessments apply based on the type of violation.

CMPs also may include an assessment of up to three times the amount claimed for each item or service, or up to three times the amount of remuneration offered, paid, solicited, or received.

Violations that may justify CMPs include:

• Presenting a claim you know, or should know, is for an item or service not provided as claimed or that is false and fraudulent

• Violating the AKS

• Making false statements or misrepresentations on applications or contracts to participate in the Federal health care programs

Preventing and Reporting Fraud, Waste, and Abuse

All home healthcare team members including clinicians and office staff have a role in preventing and reporting fraud, waste, and abuse.

Prevention starts with accurate reporting in documentation from intake to the patient visit to billing. Everyone is responsible to assure that all aspects of the clinical record reflect accurate information and that patient information is respected and protected completely.

When thinking about preventing fraud, waste, and abuse in the home health environment, team members should also consider how to report any suspected activity.

Home health agencies are required to have a compliance program to monitor and report compliance with state, federal, and local regulation, as well as internal agency policy and the compliance program officer is responsible for accepting confidential employee reports related to suspected fraud, waste, or abuse.

The compliance program must include:

• An internal auditing and monitoring procedure

• A compliance manager/officer for overseeing compliance and accepting reports and concerns related to compliance with federal, state, local and policy guidelines

• Compliance training for all staff

• Policy guidelines and enforcement related to compliance

• A compliance committee that meets regularly to review compliance with state, federal, local, and internal policy guideline compliance

• Documented response to all reported compliance concerns/reports and corrective action plans for non- compliance

Compliance policies should:

• Provide guidance to employees on how to request compliance assistance or report suspected non- compliance or potential fraud, waste, and abuse.

• Prohibit retaliation against employees who, in good faith, report or participate in the investigation of compliance concerns.

• Establish procedures for managing inquiries/investigation into reported compliance offenses and conducting corrective action plans and/or further reporting when indicated.

Home health agency employees are also covered under the False Claims Act (FCA) when reporting concerns related to fraud, waste, and abuse.

The False Claims Act and some state false claims laws permit private citizens with knowledge of fraud against the U.S. Government or state government to file suit on behalf of the government against the person or business that committed the fraud. Individuals who file such suits are known as whistleblowers.

The federal FCA and some state false claims acts prohibit retaliation against individuals for investigating, filing, or participating in a whistleblower action.

Source: Essential In-Services for Home Health, 2023 Ch. 16 p. 186 to 194