Barbara J. Duffy Lane Powell PC duffyb@lanepowell.com Steven Lack HHS‐OIG Supervisory Special Agent ‐ Retired Steven Lack PhD‐C.F.E. (925) 938‐4864
What You Say Can And Will Be
Used Against You
1What we will cover:
• Real life examples of documents uncovered in OIG investigations and how they were used against the Medicare Contractors; • Places OIG loves to look: Documents that are fruitful for investigators to build their case; • How to sensitize your organization to use language consistent with your compliance goalsThe Context
• Quality of Care; • Board Accountability; • Focus on Long Term Care; –Skilled Nursing; –Home Health; –Hospice • Therapy. 3What Does The Government Look For
When They Investigate You
• Data Mining –Look at your billing; –What are you billing and how does that compare to your peers; –Are you an outlier. • Documents Requested –Board Minutes –Job DescriptionsWhat Does The Government Look For
When They Investigate You
• Documents Requested –Bonus and compensation criteria –Operational Documents • What are you measuring? 5What are you measuring and how are
you measuring it
• Is what you’re measuring consistent with your quality goals? • Or is it consistent with your financial goals? • What behavior are you trying to encourage?Home Health As An Example
• 2011 Staff Report To Committee on Finance – Home Health And The Medicare Therapy Threshold • Home Health Reimbursement is Episodic – PPS paid for 60 day episodes • Change in billing in 2008 for Home Health Services • Prior to 2008: – 10 Therapy visits, there is a reimbursement bonus; • After 2008: – Various reimbursement thresholds: 6, 14 and 20 7Home Health For Example
• Prior to 2008 there was a 10 therapy visit bonus; – More than ½ of the therapy episodes were concentrated around 10‐13 visits during the 60 day PPS time frame • In 2008 there was a change in the PPS reimbursement; • Rather than creating one therapy threshold of 10 visits, it changed to a tier system of 3 thresholds: 6, 14 and 20 visits.Home Health Example
• Found that many of the providers targeted the most profitable number of therapy visits even when patient need alone may not have justified such patterns. • One agency developed and distributed an internal document that listed diagnoses in order of profitability and offered a strategy to increase therapy utilization. 9Examples in Home Health
• An agency training document outlined the increase in profits to the company of adding just six therapy visits to 3% of the agency’s congestive heart failure patients. • The Committee reported on agency documents which outlined how treating a wound care patient with 14 or 20 therapy visits would double the Medicare reimbursement for that event.Examples in Home Health
• Another agency developed a ranking system to drive therapy visit patterns towards more profitable levels. The highest ranking teams received encouragement and bonuses. • An agency training document noted the number of five‐visit episodes and asked, "Could we have done one more visit?" • Internal emails identified top managers, including the chief executive officer, who instructed employees to increase the number of therapy visits provided. 11Home Health
• Found evidence that some of the providers studied directed or encouraged employees to adjust the number of therapy visits in a manner that would maximize Medicare payout; • Looked at data and found that where prior to 2008 there was a concentration around 10‐13 visits, after the change there were concentrations around 6, 14 and 20 visits; • Incentives of therapy thresholds encourage providers to consider payment incentives “not necessarily patient characteristics”; • Looked at percentage of revenue that come from “home health episodes with therapy reimbursement”.Documents Considered By The
Committee
• Reports on Therapy Utilization 13Internal Documents Considered
• To show the operational incentives to get to 10 therapy visits prior to 2008 and then 6, 14 and 20 after Had a report that measured therapy utilization (fn 21) pp 39‐96 Fn 22 aboveInternal Documents Considered
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Internal Documents Considered
17Home Health: Training Documents
• Low Utilization Payment Adjustments (LUPA) –4 or fewer therapy home health visits –Less profitable patients Show pp at fn 24 pp 145‐148 Pre 2008 Looking at patients close to 10 thresholdHome Health: Board Meeting Minutes
• Comment by CEO in meeting minutes: 2008 PPS “provides an opportunity for [Provider] to refine internal practices in order to enhance shareholder value despite the payment changes.” 19 • P. 116 –CIO reported “the Company had formed a committee called the A‐Team whose specific purpose was to develop strategic clinical programs and cost‐cutting/efficiency measures to address the proposed case mix refinements” • “Data Mining Strategic Handout” –P. 187 “added revenue” –P. 210 “imagine the added revenue”Other Ways To Say It?
• Company is well suited to provide wound treatment; • Measure the service, not the reimbursement. 21 • P. 116 –CIO reported “the Company had formed a committee called the A‐Team whose specific purpose was to develop strategic clinical programs and cost‐cutting/efficiency measures to address the proposed case mix refinements” • “Data Mining Strategic Handout” –P. 187 “added revenue”Home Health Examples
• P. 288 (fn 34)
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Skilled Nursing Facility Examples
• Martin vs. Life Care • Allegations –Para 67 –Para 68 –Paras 70‐71 25Skilled Nursing Facility Examples
• Martin vs. Life Care • Allegations –Para 67 –Para 68 –Paras 70‐71Skilled Nursing Facility Examples
• Martin vs. Life Care • Allegations –Para 67 –Para 68 –Paras 70‐71 27Skilled Nursing Facility Examples
• Martin vs. Life Care • Allegations –Para 67 –Para 68 –Paras 70‐71Skilled Nursing Facility Examples
• Martin vs. Life Care • Allegations –Para 67 –Para 68 –Paras 70‐71 29Field Level Examples
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Long Term Care, Senior Housing,
In-Home Care, and Rehabilitation
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