Shoot the Messenger

by Elizabeth E. Hogue, Esq. | May 16, 2025 | Admin, Regulatory

by Elizabeth E. Hogue, Esq.

Shoot the Messenger at Your Own Risk

Shoot the messenger of fraud and abuse at your peril. Providers must take seriously the concerns of employees about possible fraudulent and abusive practices. Most whistleblowers take their concerns to their employers first, especially if they are required to do so by employers’ Compliance Plans. When employers ignore their concerns or, even worse, retaliate against employees or contractors for raising issues in the first place, employees may turn to outside enforcers for assistance in addressing their concerns. Providers must take employees’ allegations seriously whether or not they are valid. Thorough investigations are required in order to demonstrate to employees that there is no problem or that the problem has been corrected.

Qui Tam

Private citizens may initiate so-called “whistleblower” or qui tam lawsuits to enforce prohibitions against fraud and abuse in the Medicare, Medicaid, and Medicaid Waiver Programs and other state and federal health care programs, such as VA and Tri-Care.

False Claims Act

One of the federal statutes that allows for whistleblower actions is the False Claims Act (FCA). This Act generally prohibits providers from “knowingly” presenting or causing to be presented false or fraudulent claims for payment by the government. Whistleblowers continue to be a major source of information for government enforcers.

Whistleblower Requirements

In order to bring a qui tam action under the FCA, private parties must have direct and independent knowledge of fraud by providers against whom suits are filed. Thus, current or former employees who are familiar with providers’ practices may often initiate whistleblower actions under the FCA. As you can imagine, employees and contractors who are ignored or retaliated against when they bring possible violations to the attention of employers or partners by firing them, for example, are likely to initiate whistleblower suits.

Here is an example:

In United States ex rel. Chorches v. American Medical Response [No. 15-3920 (2d Cir. July 27, 2017)], Paul Fabula worked as an emergency medical technician (EMT) for American Medical Response. Fabula realized that his employer fraudulently sought reimbursement from the Medicare Program by falsely claiming that ambulance services were medically necessary when they were not. Specifically, EMTs were asked to falsify electronic Patient Care Reports (PCRs) to make it appear that services were medically necessary. Supervisors printed copies of PCRs, revised them, and directed staff members to sign the revised forms.

In one instance, Fabula provided services with another staff member who prepared the PCR. A supervisor instructed the staff member to fraudulently revise the form. When the staff member refused, the supervisor directed Fabula to sign the revised form. When Fabula refused, he was fired.

Don't Shoot the Messenger

What did Fabula do? Why, of course, he filed a whistleblower suit! The message from this case and numerous others is clear: don’t shoot the proverbial messenger who brings information about possible fraud and abuse violations. Listen up!

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Home Care Nurses’ Proud History

by Elizabeth E. Hogue, Esq. | May 9, 2025 | Caring for the Caregiver, Clinical

by Elizabeth E. Hogue, Esq.,

It's National Nurses Week!

Home Care Nurses, it’s National Nurses Week, May 6 – May 12, 2025, so we are celebrating the profession of nursing!

Home Health Nurses Have a Proud History

Home care nurses have an especially proud history. Perhaps the definitive book on home care nursing is No Place Like Home: A History of Nursing and Home Care in the United States authored by Karin Buhler-Wilkerson in 2001. As Buhler-Wilkerson makes clear, home care nursing in the U.S. is modeled on care provided in patients’ homes that was initiated by William Rathbone in Liverpool, England, in 1859.

The Start of Home Health Nursing

Rathbone first encountered a home care nurse, Mary Robinson, during the illness of his wife. Rathbone persuaded Robinson to work with him in an experiment to provide care for the sick poor in their homes while simultaneously teaching them how to take better care of themselves. Robinson was so shocked and overwhelmed by the work that she was ready to quit after the first three months. A key difficulty was recruiting nurses for such difficult work. Rathbone then enlisted the help of Florence Nightingale.

Nightingale viewed the care of patients in their homes as one of nursing’s most important tasks and threw her wholehearted support behind Robinson’s efforts. According to Buhler-Wilkerson, Nightingale said, in a widely read article published in 1876, that nurses who visited patients in their homes “were not, she assured her readers, some new form of cooks, relief officers, district visitors, letter writers, store keepers, upholsters, almoners, purveyors, ladies bountiful, head dispensers, or a medical comfort shop; they were simply nurses.” Their goal, according to Nightingale, was to “get people going again” with a “sound body and mind.” Nightingale was unsuccessful in recruiting nurses to help Rathbone and Robinson, so Rathbone started a school to train home care nurses.

The Homecare Model Comes to the U.S.

The model of homecare nursing that developed in England was very attractive to women in the U. S. around the turn of the century. Buhler-Wilkerson describes the ideal home care nurse at this time as follows:

“As nurse-author Mary Gardner suggested, the ideal visiting nurse was a faultless creature ‘possessing all the virtues, combining the experience of age with the enthusiasm of youth, and also having a sense of humor, which is perhaps the only thing which will make the years’ of this kind of work possible.’”

Not for the Faint of Heart

The work was extremely arduous. As Buhler-Wilkerson says in her book:

“Many nurses, while attracted to visiting nursing, found the work too mentally and physically exhausting. Walking long distances in all kinds of weather, climbing endless flights of stairs, cleaning and disinfecting patients’ rooms, changing beds, and being constantly exposed to disease were all part of the visiting nurse’s daily routine. The ‘delicate’ nurse found this an impossible undertaking, but even the strongest became exhausted – even sick – at the end of a day of work…Fatigued, discouraged, and often sick, many nurses left for more lucrative or easier work…As a result, the turnover was high and replacements difficult to find. With a large proportion of the staff leaving, each year seemed a new enterprise.”

Karin Buhler-Wilkerson

No Place Like Home:, A History of Nursing and Home Care in the United States

Sound Familiar?

The same description certainly fits home care nursing today. The work of home care nurses is difficult, but crucial to our country. Hats off to homecare nurses today and every day!

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

That’s a No-No

by Elizabeth E. Hogue, Esq. | Apr 24, 2025 | Admin, Hospice, Medicaid, Medicare, Medicare Advantage, Regulatory

by Elizabeth E. Hogue, Esq.

No-no # 1

“No-No” may seem like something you would say to a toddler, but there is a list of things agency owners do that they should not do. Many of these are things providers may not often consider. This article focuses on the use of private duty services by hospice and home health patients, and what hospices and home health agencies cannot do with regard to aide services.

Aide Services

Both home health and hospice services are usually intermittent and provided in patients’ homes. Patients and their families may elect to utilize the services of private duty/home care companies for additional assistance. At the same time, hospice and home health patients may receive aide services from hospices and home health agencies.

Conditions of Participation

According to Medicare Conditions of Participation (CoPs), hospice and home health aides can only provide personal care services, including bathing. Aides provided by private duty/home care companies may also provide personal care. Unlike aides provided by hospices and home health agencies, however, they can provide additional services; such as laundry, food preparation, light housekeeping, shopping, and running errands.

Private Duty Services

When patients use private duty services, they are often paying for these services out of their own pockets. Even if they have long-term care insurance, patients still bear the financial burden of paying for private duty services. Longterm care insurance often costs thousands of dollars that patients probably paid for themselves. Patients usually pay by the hour for these services.

That's a No-No

Patients may, of course, utilize private duty/home care services to perform any of the services described above. It seems, however, that hospices routinely tell patients who have private duty/home care that they will not provide aide services because private duty/home care aides are able to provide personal care for patients.

Breaking it Down

Here is an example: A hospice admitted a bedridden patient with urinary and fecal incontinence. The patient and caregiver requested aide services from the hospice five days a week to bathe him. He paid for a few hours of private duty/home care services each day. The hospice refused to provide aide services five days a week to bathe him because he had private duty/home care services. No-no!

Compelled to Provide Care

ospices must provide aide services consistent with patients’ needs related to their terminal illnesses. In the example above, the patient clearly had a need for aide services five days a week. If patients and their caregivers state that they prefer to use private caregivers for personal care, then hospices must document the refusal of hospice aide services offered, consistent with applicable standards of care. Then hospices are not required to provide aide services.

Profiteering

When hospices deny aide services that are consistent with applicable standards of care and require patients and caregivers to use private duty/home care services, hospices are shifting the cost of aide services onto patients and their families. Patients and their families may have to pay for additional private duty/home care services to meet patients’ needs. The result for hospices is that they do not incur the costs of aide services, thereby increasing their profits at the expense of patients and their families.

If hospice staff members who refuse to provide aide services to patients and require patients and their families to use private duty/home care services instead are compensated in any way based on the financial performance or profitability of the hospices, let’s hope they look good in orange jumpsuits!

Intent to Defraud

If the private duty/home care services are being paid for by any federal or state health care program; such as Medicaid, Medicaid waiver, VA, or TriCare; then both home health agencies and hospices have engaged in fraudulent conduct by shifting costs that they should have incurred onto other federal government programs.

God forbid that the hospice also owns the company from which patients receive private duty/home care services! Then hospices are limiting their costs while profiting from patients and their families.

Dig Deep and Find Your No-No's

Now is the time for all home health agencies and hospices especially to audit patients’ records to make certain that all patients have been offered services that they are required to provide. If patients and their families choose to use private duty/home care aides instead, documentation must show that they were offered the services but chose to use private duty/home care aides.

No-No's Final Thoughts

The bottom line is that hospices and home health agencies must always provide services needed by patients. Patients may choose to pay for services that are paid for by the Medicare hospice or home health benefits. Patients cannot be required to pay for services privately that hospices and home health agencies must provide. Unacceptable!

This article is the first in a series of “No-no” items for agency owners.

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Relief for Providers

by Elizabeth E. Hogue, Esq. | Apr 11, 2025 | Admin, Audits, CMS, Medicare, Regulatory

by Elizabeth E. Hogue, Esq.

Relief for Providers from Devastating Penalties?

A judge in the Northern District of Texas recently decided that even the minimum penalties mandated under the False Claims Act (FCA) violate the Eighth Amendment’s Excessive Fines Clause [see U.S. ex rel. Taylor v. Healthcare Associates of Tex. (N.D. Tex. Feb. 26, 2025)]. The FCA punishes providers for submission of information that is not true in order to get paid by the federal government.

Life Threatening Penalties

The penalties assessed against providers under the FCA may be described as “life threatening.” That is, it may be difficult for providers’ businesses to survive payment of such severe penalties. The minimum penalty increased from $13,946 to $14,308 in 2025. The maximum penalty per claim increased from $27,894 to $28,619.

Ex Post Facto

These increased penalties will be assessed for violations that occurred prior to the change, but that are assessed after they are in effect. These penalties certainly make it clear why it is difficult for providers to survive violations of the FCA.

False Claims

In the Taylor case above, for example, the defendants allegedly submitted false claims as follows:

As “incident to” a physician’s care without proper documentation
For services by providers who were not eligible to bill the Medicare Program
For services performed by medical assistants instead of qualified practitioners

FCA Math Doesn't Add Up

The jury found that one of the defendants, a primary care medical group practice, submitted 21,944 false claims for $2,753,641.86 in actual damages. After trebling the damages as required by the FCA, the Court said it would enter judgement against the defendant for approximately $8 million. The Court acknowledged, however, that penalties under the FCA are fines subject to the Eighth Amendment of the U.S. Constitution.

Grossly Disproportional to the Gravity

The Court then applied the following four factors to decide whether the “fine was grossly disproportional to the gravity of the offense” under the Eighth Amendment:

The essence of the defendant’s crime and its relationship to other criminal activity
Whether the defendant was within the class of people for whom the statute of conviction was principally designed
The maximum sentence, including the fine that could have been imposed
The nature of the harm resulting from the defendant’s conduct

Fraud...or a Reporting Error?

With regard to the first factor, the Court emphasized that the defendant’s misconduct involved violations of Medicare billing rules, but did not include billing for services that were not provided. In fact, the Court said that even though the defendant violated Medicare billing rules, the misconduct was “closer in gravity to something like a ‘reporting offense.’” There was, said the Court, no evidence that the defendant’s conduct was “related to other criminal or fraudulent activity.

Magnitude of Harm

The Court also focused attention on the fourth factor. The defendant’s harm was certainly significant, but the harm, according to the Court, did not necessitate a penalty “two orders of magnitude greater than the actual financial harm,” especially when the actual damages were substantial, i.e., one hundred times the amount of actual damages. That ratio was “grossly out of alignment with the ratios in other similar cases.” The Court imposed a civil penalty of $8,260,925.58 that represents less than 3% of the statutory minimum.

Final Thoughts

Whether other Courts follow the Taylor case described above remains to be seen, but it is quite clear that providers need relief from the penalties of the FCA.

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Gaslighting Patients and Caregivers

by Elizabeth E. Hogue, Esq. | Mar 31, 2025 | Admin, Caring for the Caregiver, Clinical

by Elizabeth E. Hogue, Esq.

Gaslighting

Gaslighting, According to:

Nurse Professional Liability Exposure Claim Report: 4th Edition issued by Nurses Service Organization and CNA, for the period from 2016 to 2019 nurses who prvided services to patients in their homes; including those providing home health and hospice, and palliative care; were the most vulnerable of all nursing specialities to professional liability claims.

A Dubious Distinction

This is the first time that nurses in home care topped the list since the reports were first compiled in 2008. Home care nurses accounted for 20.7% of claims, which represents an increase of 12.4% over the previous number reported in 2015. Adult medical/surgical nurses topped the list in past reports.

Tell me Why

These factors may contribute to increases in claims against home care nurses:

Lack of institutional support for home care nurses that is routinely received by nurses in hospitals and other facilities
Growing popularity of home care
Rising acuity of home care patients
Lack of 24-hour oversight of patients
Absence of equipment in patients’ homes that is readily available in institutional settings to help identify patients at high risk for negative outcomes

According to the Experts

However, the nonprofit organization Emergency Care Research Institute (ECRI) says that eroding trust is a major threat to patient safety in 2025. ECRI ranks “gaslighting,” or dismissing concerns of patients and caregivers, as the top issue. In other words, nurses aren’t listening to patients and their caregivers! There is an old adage that says that if practitioners would just listen to their patients, patients will tell them what is wrong (i.e., the diagnosis). Perhaps, then, the best way to avoid negligence and resulting lawsuits is to listen to patients and caregivers.

Gaslighting Safeguards

Other strategies that nurses can use to protect themselves from malpractice claims include:

Stay up to date on education and training
Document assessments of patients in a timely and objective manner
Go up the chain of command when concerned about the well-being of patients
Maintain files that demonstrate character; such as letters of recommendation, notes from patients, and performance evaluations

Of course, complete, accurate and contemporaneous documentation may provide the best defense of all!

Final Thoughts

An increase in malpractice claims against home health and hospice nurses is a significant new industry development. It’s time to move risk management, with a focus on listening to patients and caregivers, higher up the list!

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

More Violence in Care at Home

by Elizabeth E. Hogue, Esq. | Mar 21, 2025 | Admin, Caregiver Safety, Caring for the Caregiver, Clinical

by Elizabeth E. Hogue, Esq.

Violence Against Home Care Providers Continues

Violence in Care at Home Continues…

Sadly, but not surprisingly, the violence against field staff caring for patients in their homes continues. Here’s a recent example:

On February 28, 2025, a hospice nurse in Texas was accosted inside a patient’s home while she was attempting to provide care. The man who accosted her inside the home followed her outside with a rifle and fired at her as she fled. The nurse was uninjured, but her car was struck by at least one bullet.

Then, still armed, the man went back inside the patient’s home where he stayed close to the patient while pointing his rifle at deputies. Law enforcement officers were able to communicate with him and de-escalate the tense situation. The man was booked into the county jail on a charge of aggravated assault with a deadly weapon and bond was set at $250,000.

By the Numbers

According to a recent analysis of Bureau of Labor Statistics data, healthcare is one of the most dangerous places to work. Homecare field staff members who provide services on behalf of private duty agencies, hospices, Medicare-certified home health agencies, and home medical equipment (HME) companies may be especially vulnerable. Contributing to their vulnerability is the fact that they work alone on territory that may be unfamiliar and over which they have little control. Staff members certainly need as much protection as possible.

Violence Policies Needed

First, regardless of practice setting, management should develop a written policy of zero tolerance for all incidents of violence, regardless of source. This policy should include animals. The policy must require employees and contractors to report and document all incidents of threatened or actual violence, no matter how minor.

Beyond Reporting

Emphasis should be placed on both reporting and documenting. Employees must provide as much detail as possible. The policy should also include zero tolerance for visible weapons. Caregivers must be required to report the presence of visible weapons.

UCHealth SAFE Program

Below are some additional important actions for healthcare organizations to take that are based on the UCHealth SAFE Program:

Encourage staff members to STOP if they feel unsafe for any reason.
If danger is not imminent, workers should pause to generally ASSESS their environments. Staff members should think about what happened and observe what is currently happening. Is there, for example, mounting frustration or anger?
Staff should then FAMILIARIZE themselves with the area. Who is the patient? Where is the patient? Are there any factors that might escalate behaviors? Staff members should also consider putting themselves in positions where they have a route to escape, if necessary.
ENLIST help. Getting help may, for example, include pushing panic buttons on mobile devices.

In Their Own Words

Here is what Chris Powell, Chief of Security at UCHealth, said in Becker’s Hospital Review on June 4, 2024:

“You can’t just talk about the shrimp and give you a good picture. We have to talk about the roux and the rice and everything else that goes into this for a good picture to be painted so people have an understanding. We want to solve this with an electronic learning or a 15-minute huddle, but we can’t. This is continuous and a persistent pursuit toward educating, communicating, recognizing, responding to, reporting and recovering from workplace violence.”

Chris Powell

Chief of Security, UCHealth

Final Thoughts

Every caregiver matters. The healthcare industry has lost caregivers to violence on the job in the past. Let’s do all that we can to avoid similar events in the future.

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Nursing Facility Compliance Guidance

by Elizabeth E. Hogue, Esq. | Mar 13, 2025 | Admin, Clinical, Regulatory

by Elizabeth E. Hogue, Esq.

Nursing Facility Compliance Guidance

Takeaways for Hospices

In November of 2024, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services issued revised “Nursing Facility Industry Segment-Specific Compliance Program Guidance.” This guidance describes:

Risk areas for nursing facilities
Recommendations and practical considerations for mitigating risks
Other important information that the OIG believes nursing facilities should consider when implementing, evaluating, and updating their compliance and quality programs

Guidance Extends to Post-Acute Providers

The guidance targets nursing facilities. Howeve, it also clearly states that post-acute providers other than nursing facilities should use the guidance in their compliance efforts. The OIG says: “We encourage all long-term and post-acute providers to establish and maintain effective compliance and quality programs.” Guidance for nursing facilities, for example, specifically addresses relationships between nursing facilities and hospices.

The OIG...

First...

acknowledges that nursing facilities may arrange for hospice services for patients who meet the eligibility criteria and who elect the hospice benefit.

Then...

reminds facilities and hospices that requesting or accepting remuneration from hospices may subject both parties to liability under the federal anti-kickback statute. This applies if the remuneration may influence nursing facilities’ decisions to do business with hospices or induce referrals between the parties.

Goes On...

points out that nursing facilities that refer patients for hospice services who do not qualify for the hospice benefit may be liable for submission of false claims.

Nursing Facility Compliance Guidance OIG

Additionally...

says that hospices are permitted to furnish noncore services under arrangements with other providers or suppliers, including nursing facilities. State Medicaid Programs pay hospices at least 95% of the Programs’ daily facility rate. Hospices are then responsible to pay facilities for patients’ room and board.

Finally...

provides a list of suspicious arrangements between nursing facilities and hospices, including: (1) referrals of patients to hospices to induce hospices to refer patients to facilities, and (2) solicitation or receipt of hospices of goods or services for free or below fair market value, including nurses or other staff to provide services at facilities for nonhospice patients and monetary payments for:

referrals of patients to hospices to induce hospices to refer patients to facilities
solicitation or receipt of hospices of goods or services for free or below fair market value
- solicitation of nurses or other staff to provide services at facilities for nonhospice patients
- monetary payments for:

- - Room and board for patients in excess of what nursing facilities receive directly from Medicaid if patients are not enrolled in hospices. Additional payments must represent fair market value of additional services actually provided to patients that are not included in Medicaid daily rates.
  - Additional services for residents that include room and board payments to hospices from Medicaid Programs
  - Additional services for patients that are not included in room and board payments from Medicaid Programs at rates that are above fair market value
  - Provision of services by nursing facilities to hospice patients at rates that are above fair market value

Final Thoughts

Hospices are surely under fire these days from fraud enforcers. Engaging in the practices described above is likely to draw attention by enforcers and possible enforcement action.

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Treatment in Place from Emergency Medical Services

by Elizabeth E. Hogue, Esq. | Feb 14, 2025 | Clinical, Medicare Advantage, Regulatory

by Elizabeth E. Hogue, Esq.

Treatment in Place

Providers of services to patients in their homes are anecdotally familiar with situations in which patients need help at home, but do not qualify for home health services and have not arranged for or are unable to afford home care/private duty services. These patients need assistance, but do not need transport.

The Problem

The problem for Emergency Medical Services (EMS) is nonpayment for services if patients are not transported for services.

Can EMS Charge Without Transport

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services has weighed in on whether local EMS can meet this need and bill patients’ insurance for treatment in place (TIP) services. The OIG has “blessed” the provision and billing of these services in Advisory Opinion No. 24-09 issued on November 21, 2024.

Treatment in Place Requirements to Bill Insurance

Specifically, the OIG says that EMS may provide services to patients in their homes or TIP services and bill Patients’ insurers if the following requirements are met:

Charges to patients’ insurers would be limited for emergency responses only.
Charges for TIP services must be based on the level of care furnished to patients and cannot exceed amounts currently claimed for payment for the same levels of care furnished in connection with ambulance transports.
Charges are made regardless of whether patients are enrolled in commercial insurance plans or federal health programs.
EMS accepts payment for TIP services from patients’ health insurances as payment in full.
Patients will not be billed for any cost-sharing amounts under patients’ health insurance, including federal health care programs for covered TIP services, regardless of whether they are residents or nonresidents of the county where TIP services are provided.
EMS cannot later claim cost-sharing amounts waived as bed debts for payments under federal health care programs or otherwise shift the burden of cost-sharing waivers onto federal health care programs, other payors, or individuals by, for example, balance billing.

Cost-Sharing

In light of the above, the OIG first acknowledged that the prohibition on waivers of cost-sharing under the federal anti-kickback statute (AKS) is applicable and that the requirements of a safe harbor that addresses waivers of cost-sharing amounts for municipally owned ambulances are not met by the proposed arrangement. The OIG also said that the proposed arrangement would result in remuneration in the form of cost-sharing waivers for TIP services and TIP services provided at no charge to patients. Consequently, remuneration provided implicates both the AKS and the Beneficiary Inducements CMP.

Risk

Nonetheless, the OIG concluded that the arrangement involves a low risk of fraud and abuse. In addition to the above requirements, the OIG concluded that neither Medicare Part B nor the State Medicaid Program currently covers TIP services; only a handful of Medicare Advantage Plans and some Medicaid Programs currently cover TIP services. This means that, in most circumstances, the arrangement will result in no costs to federal health care programs and, in fact, may reduce costs by avoiding ambulance transport or subsequent hospital care. Patients may also receive care more quickly and efficiently, and at more appropriate levels of care when they receive TIP services.

Treatment in Place Cost-sharing Waivers

Finally, according to the OIG, waivers of cost-sharing for TIP services or the provision of free TIP services are unlikely to affect patients’ decisions to use future emergency ambulance services reimbursed by federal health care programs.

Providers are increasingly aware that patients need a variety of services in their homes. The OIG has opened another door!

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Telemedicine Rules from DEA

by Elizabeth E. Hogue, Esq. | Jan 23, 2025 | Clinical, Regulatory, Telehealth

by Elizabeth E. Hogue, Esq.

DEA Issues Three Telemedicine Rules

On January 16, 2025, the United States Drug Enforcement Administration (DEA) announced three new rules to make permanent some temporary flexibilities for telemedicine established during the COVID-19 public health emergency, including new provisions intended to protect patients. The DEA worked with the U.S. Department of Health and Human Services (HHS) to develop the new rules. The DEA made significant revisions to the draft rules proposed on March 1, 2023.

Exemptions

It is important to note that the new rules do not apply to telemedicine visits when patients have already been seen in person by medical providers. After patients have in-person visits with medical providers, any medications may be prescribed through telemedicine indefinitely. Also, if no medications are prescribed during telemedicine visits, the rules about telemedicine do not apply. In other words, patients can always have telemedicine visits with medical practitioners. The rules apply only if patients have never been seen in person by practitioners and controlled medications are prescribed during telemedicine visits.

Rule #1 - Remote Access to Opiod Meds

First, the DEA expanded remote access to buprenorphine, the medication used to treat opioid use disorder, via telemedicine encounters. This change allows patients to receive six-month supplies of buprenorphine through telephone consultations with providers. Additional prescriptions will, however, require an in-person visit to medical practitioners.

Rule #2: Schedule III-V Without In-Person Evaluation

The DEA also issued proposed rules that establish special registrations that allow patients to receive prescribed medications even though they have never had an in-person evaluation from a medical provider. This special registration is available to practitioners who treat patients for whom they will prescribe Schedule III-V controlled substances.

Prescribing Registrations for Schedule II

Advanced Telemedicine Prescribing Registrations are available for Schedule II medications when practitioners are board certified in one of the following specialties:

- Psychiatrists
- Hospice care physicians
- Physicians rendering treatment at long term care facilities
- Pediatricians for the prescribing medications identified as the most addictive and prone to diversion to the illegal drug market
These specialized providers can issue telemedicine prescriptions for Schedule II-V medications.

Call for Public Comment

The DEA seeks public comment on the following issues related to the proposed rules, including whether:

- Additional medical specialists should be authorized to issue Schedule II medications
- Special registrants should be physically located in the same state as patients for whom Schedule II medications are prescribed
- To limit Schedule II medications by telemedicine to practitioners whose practice issues less than 50% of prescriptions by telemedicine.

Online Registration

The DEA will also require online platforms to register with the DEA if they facilitate connections between patients and medical providers that result in prescription of medications. In addition, the DEA will also establish a national prescription drug monitoring program (PDMP) so that pharmacists and medical practitioners can see patients’ prescribed medication histories.

Rule #3: Exemption for Dept of Veterans Affairs

Finally, the DEA will exempt U.S. Department of Veterans Affairs (VA) practitioners from requirements for Special Registrations. After patients receive in-person medical examinations from VA practitioners, the provider-patient relationship is extended to all VA practitioners who engage in telemedicine with the patients.

Final Thoughts

Prescribing controlled substances is essential for some patients, including hospice patients. Practitioners must have the option to prescribe using telehealth.

# # #

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Care at Home Coming to Medicaid?

by Elizabeth E. Hogue, Esq. | Jan 16, 2025 | Advocacy, Regulatory

by Elizabeth E. Hogue, Esq.

Brown v D.C. Decision is Another Boost for Care at Home

In Olmstead v. L.C., the U.S. Supreme Court decided that unjustified segregation of disabled persons constitutes discrimination in violation of Title II of the Americans with Disabilities Act.

The Court said that public entities must provide community-based services to disabled persons when such services are:

- Appropriate;
- Unopposed by disabled persons; and
- Reasonable accommodations taking into account resources available to public entities and the needs of other disabled individuals receiving services from the entity.

This decision gave a tremendous boost to the provision of home and community-based services of all types. Since Olmstead was decided in 1999, there have been more court decisions that require services to be provided at home based on this opinion.

Support for Olmstead

One recent decision is Brown, et al v. District of Columbia (Brown v D.C.) that was decided on December 31, 2024. The Court decided that the District of Columbia violated the rights of D.C. residents with disabilities under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. According to the Court, D.C. failed to inform nursing facility residents who receive Medicaid that they could leave nursing facilities and receive home health services in their communities and failed to assist them to do so. The D.C. government also failed to help them access community-based services and housing options needed to transition back to the community.

The Court recognized that individuals living in nursing facilities often need help learning about and applying for available community services to help them transition out of the institution and into their own homes. Even when residents learn about services, navigating the complicated Medicaid-funded long-term care program can cause confusion and anxiety that sometimes causes facility residents to lose hope that they can live in their own homes again.

Consequently, the decision applies to

“All persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaid-covered home and community-based long-term care services that would enable them to live in the community; and (3) would prefer to live in the community instead of a nursing facility but need the District of Columbia to provide transition assistance to facilitate their access to long-term care services in the community.”

Brown v D.C. Says That D.C. Must

- Develop and implement a working system of transition assistance for [nursing home residents that], at a minimum
  - informs DC Medicaid-funded residents, upon admission and at least every three months thereafter, about community-based long-term care alternatives to nursing facilities
  - elicits DC Medicaid-funded nursing facility residents’ preferences for community or nursing facility placement upon admission and at least every three months thereafter
  - begins DC Medicaid-funded nursing facility residents’ discharge planning upon admission and reviews at least every month the progress made on that plan
  - provides DC Medicaid-funded nursing facility residents who do not oppose living in the community with assistance accessing all appropriate resources available in the community
- Ensure sufficient capacity of community-based long-term care services for [residents] under the EPD, MFP, and PCA programs and other long-term care service programs, to serve [residents] in the most integrated setting appropriate to their needs, as measured by enrollment in these long-term care programs.
- …[D]emonstrate [its] ongoing commitment to deinstitutionalization by, at a minimum, publicly reporting on at least a semi-annual basis the total number of DC Medicaid-funded nursing facility residents who do not oppose living in the community; the number of those individuals assisted by [DC] to transition to the community with long-term care services [described above]; and the aggregate dollars [DC] saves (or fails to save) by serving individuals in the community rather than in nursing facilities.

Final Thoughts on Brown v D.C.

As indicated above, there continues to be a clear mandate for Medicaid Programs to provide services to individuals in the community, which is a significant impetus to provide services to patients in their homes. This mandate, however, does not directly address practical aspects of implementation, such as reimbursement at appropriate rates for providers or availability of staff to provide services at home. Nonetheless, the Olmstead and Brown cases provide an important basis for further development of in-home services of all types to meet the needs of disabled persons.

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

No portion of this material may be reproduced in any form without the advance written permission of the author.

©2025 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com