Bi-Partisan Congressional Committees Demand CMS Administrator Repay Misspent Funds
CMS Bi-Partisan Congressional Committees Demand CMS Administrator Repay Misspent Funds his month, two House committees and two Senate committees published a report of a joint investigation into Centers for Medicare and Medicaid Services Administrator Seema Verma’s...Insurance Industry Insider Instructs Providers
CMS Insurance Industry Insider Instructs Providers September 16, 2020 by Wendell Potter (Adapted with permission from an article posted on the author’s Twitter feed. –Editor) My former colleagues in the health insurance industry claim they are waiving all costs of...CMS News: New Rule Cracks Down on Medicare Advantage Upcoding
CMS by Tim Rowan, Editor CMS Rule to Protect Medicare The U.S. Department of Health and Human Services, through the Centers for Medicare & Medicaid Services, finalized the policies for the Medicare Advantage “Risk Adjustment Data Validation” program, which...Supreme Court Takes Action About Knowledge Required to Prove False Claims
CMSby Elizabeth Hogue, Esq.
For providers to be liable under the federal False Claims Act, enforcers must prove that they knowingly submitted false claims. The U.S. Supreme Court recently issued an opinion in United States ex rel. Schutte v. SuperValu, Inc. [No. 21-1326 (U.S. June 1, 2023)], which defines what “knowingly” means. The Court decided that providers act knowingly depending on their “culpable state of mind” when they submitted alleged false claims; not what providers may have thought after submitting them. The requirement to prove knowledge, or “scienter,” said the Court, refers to providers’ knowledge and subjective beliefs; not to what objectively reasonable persons may have known or believed.
On June 30, 2023, the U.S. Supreme Court issued orders that revive two whistleblower lawsuits based on the opinion described above. Specifically citing the above decision, the Court granted whistleblower Troy Olbausen’s request to hear his case. The Court then vacated an Eleventh Circuit decision that dismissed Olhausen’s whistleblower lawsuit.
The Eleventh Circuit previously dismissed Olhausen’s suit against Arriva Medical because he could not prove that the defendants had knowledge of their submission of false claims in view of their objectively reasonable interpretation of the Medicare rules in question. The Supreme Court sent the case back to the Eleventh Circuit for further consideration based on its decision in Schuttte v. SuperValu, above [Olhausen v. Arriva Med., LLC, No. 22-374 (U.D. June 30, 2023)].
Likewise, on June 30, 2023, the Supreme Court sent a case back to the Fourth Circuit for further consideration in light of the Schutte case.
These actions make it clear that the new standard set by the Supreme Court in the Schutte case will make a difference in cases based on the federal False Claims Act. The Court said in the Schutte case:
“Both the text and the common law also point to what the defendant thought when submitting the false claim – not what the defendant may have thought after submitting it…As such, the focus is not, as respondents would have it, on post hoc interpretations that might have rendered their claims accurate. It is instead on what the defendant knew when presenting the claims…Culpability is generally measured against the knowledge of the actor at the time of the challenged conduct.”
The Court also said:
“Under the FCA, petitioners may establish scienter by showing that respondents:
- actually knew that their reported prices were not their ‘usual and customary’ prices when they reported those prices;
- were aware of a substantial risk that their higher, retail prices were not their ‘usual and customary’ prices and intentionally avoided learning whether their reports were accurate, or
- were aware of such a substantial and unjustifiable risk but submitted the claims anyway…
If petitioners can make that showing, then it does not matter whether some other, objectively reasonable interpretation of ‘usual and customary’ would point to respondents’ higher prices. For scienter, it is enough if respondents believed that their claims were not accurate.”
Proving that providers submitted false claims just got tougher for enforcers.
See Ms. Hogue’s earlier report on this SCOTUS case in our June 7 edition: homecaretechreport.com/article/3587
©2023 Elizabeth E. Hogue, Esq. All rights reserved. No portion of this material may be reproduced in any form without the advance written permission of the author.
©2023 by Rowan Consulting Associates, Inc., Colorado Springs, CO. All rights reserved. This article originally appeared in Home Care Technology: The Rowan Report. homecaretechreport.com One copy may be printed for personal use; further reproduction by permission only. editor@homecaretechreport.com
Medicare Dollars Flow Freely to MA Plans
Editorialanalysis by Tim Rowan, Editor
It is good to occasionally remind ourselves that 2023 is the year enrollment in Medicare Advantage reached a full half of Medicare beneficiaries. Originally conceived as a plan to control spending, MA does seem to be achieving that goal.
At what cost, however?
The Medicare trust fund pays insurance companies participating in the MA program a per-patient-per-month fee based on the company’s own declaration of each customer’s health and likely future needs. With those monthly payments, MA companies provide care as needed. Or at least they are supposed to.
Frequently, since the program began, whistleblowers have told the government that employees are rewarded for increasing a patient’s risk-adjustment, the clinical assessment that is supposed to be scored by a physician but is often instead scored through data mining. That practice involves employees searching through patient records, looking for signs of health conditions that would raise their assessment, and thus their value to the insurer. In other words, a class of crime that would earn an HHA a hefty fine if they did it with their OASIS assessments.
Evidence has been mounting lately that these insurance companies not only fudge the numbers to gather more than they should from Medicare, but they also provide as little care as they can get away with. Our industry is familiar with the penny-pinching MA companies practice when authorizing in-home care. The problem is larger than that.
String of Recent Accusations
- The HHS Office of Inspector General issued a report revealing how Elevance, the company formerly known as Anthem, made $5.5 billion in profits in the first six months of this year, a 14.4% jump from the $4.8 billion in profits it made during the same period of 2022. The profits, OIG said, came mostly from denying care to Medicaid beneficiaries, care that their physicians had recommended.
- The largest insurer, with 27 percent of the market, UnitedHealth’s investors were distraught in June when it appeared the company was spending too much on patient care. Their fears were calmed, however, when United reported revenue of $56.3 billion for 2Q 2023, compared to $45.1 billion in the same quarter of 2022.
- Cigna is the target of a class action suit in California, in which it is accused of using an algorithm to deny care, overriding and sometimes ignoring physician recommendations.1
Last October, the New York Times summarized the problem with a list of recent government findings and accusations:
“Kaiser Permanente called doctors in during lunch and after work and urged them to add additional illnesses to the medical records of patients they hadn’t seen in weeks. Doctors who found enough new diagnoses could earn bottles of champagne, or a bonus in their paycheck.
“Elevance Health paid more to doctors who said their patients were sicker. And executives at UnitedHealth Group, the country’s largest insurer, told their workers to mine old medical records for more illnesses — and when they couldn’t find enough, sent them back to try again.
“Each of the strategies — which were described by the Justice Department in lawsuits against the companies — led to diagnoses of serious diseases that might have never existed. But the diagnoses had a lucrative side effect: They let the insurers collect more money from the federal government’s Medicare Advantage program.”
Comparison to Home Health and Hospice
Naturally, these examples reach into the hundreds of billions because MA covers hospital and physician claims, but the comparison to our sector is nevertheless valid.
Since payments to HHAs were first attached to patient assessments a quarter century ago, clinicians have gotten better and better at the task. OASIS assessments are more accurate and thorough than they used to be. Professional coders are more adept at identifying and sequencing appropriate diagnosis codes. AI-assisted tools entering the fray promise an enhanced level of accuracy. (See our product review of the most promising of these tools.)
From the beginning, more accurate assessments have always meant a 10 to 15 percent increase in an agency’s episodic payment over less accurate OASIS scores. Wary of being accused of upcoding, nurses have always been unnecessarily cautious with their intake assessments.
Upcoding Accusations
CMS has always responded to increasing accuracy with accusations of upcoding, even though the Medicare trust fund more often benefits from the above described undercoding habit. Regulatory adaptations have enshrined the fear of upcoding into an assumption that it will happen, with payments slashed in advance just in case it does.
When errors in assessments and claims are discovered by CMS contractors through sampling, the overpayment amount found in the sample is extrapolated to an agency’s entire patient census. The result has at times crossed the line into seven figures, with a payback demand that occasionally cripples the HHA.
Compare this practice to the gift given to MA companies that we revealed in these pages last February: “Government Lets Health Plans That Ripped Off Medicare Keep the Money” In researching that story, we found that CMS typically postpones its duty to audit the risk adjustment figures that MA plans submit annually. After getting more than a decade behind, they decided to write off overpayments to MA plans prior to 2018 and start auditing from that year forward.
As an additional gift they said they would demand repayments only on the amounts turned up in their sample dataset, without extrapolating to each MA’s total patient population as they do with HHAs.
What can one conclude from this comparison? Possibly that CMS is very good at policing millions of dollars but gets overwhelmed and gives up with amounts in the billions.
Tim Rowan is a 30-year home care technology consultant who co-founded and served as Editor and principal writer of this publication for 25 years. He continues to occasionally contribute news and analysis articles under The Rowan Report’s new ownership. He also continues to work part-time as a Home Care recruiting and retention consultant. More information: RowanResources.com
Tim@RowanResources.com
©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report.homecaretechreport.com One copy may be printed for personal use: further reproduction by permission only. editor@homecaretechreport.com
No Nurse Shortage Here
Adminby Tim Rowan, Editor
When Joseph Furtado, RN, COS-C, moved from one Phoenix-area Home Health agency to another earlier this year, he faced a seemingly insurmountable problem. The new place had dropped to a 600 census during the pandemic and got stuck there. Marketers had nurtured strong relationships with referring physicians, but the agency was turning away most of them for lack of nursing staff.
Over a span of 70 days, Furtado hired 60 nurses. As of our conversation this week, none of them have left.
Furtado, the Administrator at MD Home Health told us about his hiring philosophy that helped grow the company’s census to 1,000 and boost it to second largest in the area. “People want to work here because of the way we treat them,” he said. His plan includes several strategies:
- Pay clinicians what they are worth:
- Free up funds for salaries by eliminating marketing positions
- Free up funds for salaries by reducing most training costs
- Reduce training costs by hiring only experienced nurses from other agencies who need little or no training
- Treat clinicians like professionals:
- Center orientation days around presentations about company culture, not nuts and bolts of the job
- Include presentations by top employees
- Include presentations by actual patients, who talk about what the company has done for them
- Eliminate obligatory mass training sessions. Replace them with as-needed meetings with nurse supervisors, sometimes in a patient home, sometimes in a nearby coffee shop.
- The invitation is never “you need to stop doing this wrong” but “may I take you to lunch?”
- Adapt schedule and pay policy to accommodate the needs of the professional
- Replace minimum productivity requirement with mission-driven expectation and rewards
- Replace marketers with a single visit from the administrator:
- We are the best, we will keep your patients out of the hospital, we will not turn away your referral
- Constantly monitor Indeed and other online job sites:
- respond to new job seekers within seconds
- schedule same-day interviews when possible
Favorite Hiring Story
Furtado enjoys telling the story of his favorite hiring win. “I was a few minutes late to call a top-notch, experienced Home Health nurse who showed up on Indeed,” he began. “When I called her, she had just parked her car and was on her way into an interview appointment with another agency. Thinking fast, I said, ‘What do I have to say to stop you from walking in that door?’ She couldn’t believe I was asking her to do that; actually, I couldn’t believe I had said it either. I told her our agency was the best place to work in Arizona and she should get back in her car. I kept her on the phone and said, ‘Let me hear you start your car.’ Then ‘Let me hear you drive away.’ She drove straight to my office and I hired her.
Today, she is our Director of Nursing.
Productivity Without Mandate
He told us that he has heard criticism from peers at various conferences and other meetings for his lack of a visit-per-week requirement. “I use a point system,” he explained to us. “A one-hour visit is one point, an OASIS visit is two, and there are other points for driving distance and other factors. We ask for an average of five points per day, and we pay bonuses when they exceed that. We tell clinicians during an interview that we offer a generous base salary, but that he or she can earn 20 or 30 thousand more than that. By doing that, we achieve two things. We hire an enthusiastic clinician, and we have the luxury of not having to hang onto underperforming nurses out of desperation.
Next Up
Now that MD Home Health has a full clinical staff, Furtado plans to implement a medical scribe system, based on the concept taught to him by his Medicare reimbursement consultant, Michael McGowan, a former CMS OASIS instructor and founding owner of OperaCare. During an OASIS visit, the field nurse consults live on a speaker phone with a QA nurse in the office. There is no computer between the nurse and the patient, and the OASIS is complete, quality checked, and ready to be submitted that day.
“We will make it optional,” Furtado said. “If it works as well as it has for Michael’s other clients, our hope is that more and more OASIS nurses will opt in once they see their co-workers going home at the end of the day with all their documentation already complete.”
©2023 by Rowan Consulting Associates, Inc., Colorado Springs, CO. All rights reserved. This article originally appeared in Home Care Technology: The Rowan Report. homecaretechreport.com One copy may be printed for personal use; further reproduction by permission only. editor@homecaretechreport.com
EEOC Sues Licensed Home Care Agency for Discrimination
CMS by Tim Rowan, Editor Home Care Agency Removed Black and Hispanic Home Health Aides from Assignments to Accommodate Racial Preferences of Clients, Federal Agency Charges There is a question that appears on social media chat pages with great regularity. What does a home...CMS News
CMSNOW AVAILABLE IN iQIES – Preview Reports and Star Rating Preview Reports for the January 2024 Refresh
CMS just published updated measure for Home Health Outcome Information Set (Oasis) and all HH QRP claims-based measures. These updated measures are no based on the standard number of quarter.
For additional information, please see the HH Quality Reporting Training webpage and the Home Health Data Submission Deadlines webpage.
©2023 by Rowan Consulting Associates, Inc., Colorado Springs, CO. This article originally appeared in Home Care Technology: The Rowan Report. Click here to subscribe. It may be freely reproduced provided this copyright statement remains intact. editor@homecaretechreport.com
CMS Issues Final Rule for 2024 with Drastic Pay Cut
CMS By Kristin Rowan, Editor On November 1, CMS issued its Home Health Final Rule for CY 2024. As expected, the final rule includes drastic pay cuts to Medicare home health services payments. The original proposed rule issued earlier this year included a 5.653% rate...
