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

Case Management and Discharge Planning

by Elizabeth E. Hogue, Esq. | Nov 21, 2024 | Admin, Clinical

by Elizabeth E. Hogue, Esq.

Case Management & Discharge Planning to Reduce Length of Stay

By the Numbers

Many hospitals are laser-focused on reducing length of stay in order to enhance patient experiences and boost financial performance. A recent study by KFF shows that the average adjusted expense per patient day at hospitals in 2022 was $3,025.

Kenneth Kaufman, managing director of Kaufman Hall, observed in a blog post earlier this year that reductions in length of stay can produce dramatic increases in savings. Mr. Kaufman pointed out that if a hospital with 425 beds that has an average length of stay of six days achieved a reduction in length of stay of one day, the hospital would save at least $20 million in operating expenses per year.

Step Up to the Plate

An increasing number of healthcare leaders are now advocating for discharge planners/case managers to play a key role in care coordination, including reductions in length of stay.

Perhaps healthcare managers have lost sight of the fact that discharge planners/case managers have been required to fulfill this role for quite some time based on Conditions of Participation (CoPs) of the Medicare Program for discharge planning. According to 42 CFR 482.43 Condition of participation: Discharge planning, discharge planners/case managers are required to:

- Identify patients who need discharge planning early in their inpatient stays
- Evaluate patients in need of discharge planning to identify the need for post-hospital services, including the availability and accessibility of these services
- Regularly re-evaluate patients’ conditions to make needed changes in discharge plans
- Provide necessary medical information to implement discharge plans

The use of discharge planners/case managers to manage length of stay is not new and isn’t based on potential reductions in length of stay with resulting savings and increased revenue. Rather, case management is a discipline that is well-defined by standards of care published and periodically revised by the Case Management Society of America (CMSA).

They Were Already on Base

Hospital leaders may marvel at their discovery of discharge planning/case management as a tool to assist patients and manage revenue, but the fact is that case management/ discharge planning has been required for some time in order to maintain certification by the Medicare Program.

While newfound support is welcome, the role and contributions of case managers/discharge planners is long-standing and well known, especially among patients and post-acute providers. Perhaps now hospital leaders will share appreciation of the value of case management/discharge planning more often.

# # #

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.

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

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

Fraud Soup

by Elizabeth E. Hogue, Esq. | Oct 31, 2024 | Clinical, Regulatory

by Elizabeth E. Hogue, Esq.

Everyone in the "Fraud Soup" Together

Perhaps you remember the CEO of a hospice in the Dallas area, Novus Health Care Services, who texted staff members urging them to administer drugs to patients to avoid exceeding per patient spending caps. He then sent texts praising them when patients passed away from the drugs he had urged them to administer: “Good job!” There were also accusations of recruiting ineligible patients and falsifying documentation. Ever wonder what happened to him and other staff members?

Well...Here's the Scoop!

Sixteen individuals from the hospice were indicted and at least eleven of them pled guilty.
Thirteen individuals involved in these activities were sentenced to a combined eighty-four years in prison.
The most recent sentence of four years in prison was imposed on the hospice’s marketing director.
The CEO of the Hospice was sentenced to thirteen years in prison.
Two Medical Directors decided to go to trial instead of pleading guilty. They were sentenced to thirteen years and ten years in prison.
A nurse involved in these activities was sentenced to eight and a half years in prison.
An LVN who received a text from the CEO saying “good job” after she administered drugs to a patient who then passed away was sentenced to eight years in prison.

A triage nurse was sentenced to seven years in prison.
The Director of Operations was sentenced to five and a half years in prison.
A Medical Director who pleaded guilty received a sentence of four years and nine months.
The VP of Patient Services was sentenced to three years in prison.
The VP of Marketing was sentenced to two years and nine months in jail.
A nurse was also sentenced to two years and nine months in prison.
An owner of a lab and home health agency was also sent to jail for eighteen months because she allowed the CEO to access potential patients’ confidential medical information in exchange for using services provided by her companies.

Far-Reaching Effects

Can you imagine the effect on professionals who surely also lost their licenses and their families? Not to mention patients and their families!

The lesson in this heartbreaking story is that fraud enforcement is not limited to owners and upper management. Enforcers will dump everyone who engaged in inappropriate conduct into the “fraud soup.” Therefore, when providers refuse to engage in fraudulent conduct, they are not only protecting themselves, but everyone else involved.

# # #

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.

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

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

Patient Preference by Race or Nationality

by Elizabeth E. Hogue, Esq. | Oct 10, 2024 | Admin, Clinical, CMS, Regulatory

This article provides updated information about a discrimination case filed against a home care agency by the EEOC. The Rowan Report published the initial press release and article last year.

by Elizabeth E. Hogue, Esq.

What to do When Patients Don't Want Caregivers of Certain Races or Nationalities

The Equal Employment Opportunity Commission (EEOC) sued ACARE HHC, Inc.; doing business as Four Seasons Licensed Home Health Care Agency in Brooklyn, New York. The EEOC claimed that the Agency removed home health aides from work assignments based on their race and national origin to accommodate clients’ preferences in violation of the Civil Rights Act of 1964 [EEOC v. ACARE HHC d/b/a/ Four Seasons Licensed Home Health Care, 23-cv-5760 (U.S. District Court for the Eastern District of New York)].

This case recently settled, and Four Seasons will pay a whopping $400,000 in monetary relief to affected home health aides! The Agency must also update its internal policies and training processes related to requirements of the Civil Rights Act, stop assigning home health aides based on clients’ racial or nationality preferences, and provide semi-annual reports to the EEOC about any reports or complaints received about discrimination.

Aides Removed from Assignments

According to the EEOC, Four Seasons routinely responded to patients’ preferences by removing African American and Latino home health aides based on clients’ preferences regarding race and national origin. Aides removed from their assignments would be transferred to new assignments, if available, or, if no other assignments were available, would lose their employment altogether. The lawsuit asked for both compensatory and punitive damages, and for an injunction to prevent future discrimination based on race and national origin. The EEOC says that “Making work assignment decisions based on an employee’s race or national origin is against the law, including when these decisions are grounded in preferences of the employer’s clients.”

As many providers know, patients’ preferences for certain types of caregivers are common. Experienced managers have been asked by patients not to provide caregivers who are, for example, “foreign.” Such requests should generally be rejected, especially when they involve discrimination based upon race, national origin, religion, or any other basis commonly used to treat groups of people differently. Legally and ethically, providers should not engage in such practices.

Exception to the Rule

There is one exception to this general rule that occurs when patients ask for caregivers of the same sex as the patient based upon concerns about bodily privacy. It is then acceptable to assign only same-sex caregivers to patients who have made such requests.

Risk Management

In addition to concerns about discrimination, providers must also be concerned about risk management when they honor such requests. Especially in view of increasing staff shortages, limitations on available caregivers may mean that patients’ needs cannot be met by staff members who are acceptable to patients. In view of staffing shortages, the fewer caregivers who are permitted to care for certain patients, the more likely it is that patients’ needs will go unmet. Unmet patient needs are, in turn, likely to significantly enhance the risk associated with providing care to patients.

Preferences at Home

Perhaps the pressure to honor patients’ requests is at its greatest when patients receive services at home. Patients who will accept any caregiver assigned to them in institutional settings somehow feel that they have the right to decide who may provide services in their homes. On the contrary, with the exception noted above, staff assignments should be made without regard to client preferences for services rendered at home, just as assignments are made in institutional settings.

Agency Response

How should managers respond when patients tell them not to assign any “foreign” nurses to them? First, they should explain that the organization does not discriminate and that to avoid assignments based on cultural or racial background may constitute unlawful discrimination. Then staff should explain that if limitations on caregivers were acceptable, the provider may be unable to render services to the patient at all because they may not have enough staff. The bottom line is that staff will be assigned without regard to patient preferences in order to prevent discrimination and to help ensure quality of care.

Patients’ requests and managers’ responses must be specifically documented in patients’ charts. Documentation that says patients expressed preferences for certain caregivers or rejected certain types of caregivers is too general. Specific requests and responses of management must be documented.

Monitoring the Patient

After patients have expressed what may amount to prejudice against certain groups of caregivers, managers must follow up and monitor for inappropriate behavior by patients directed at caregivers who are not preferred. Managers should be alert to the potential for this problem and should follow up with patients and caregivers to help ensure that caregivers are receiving the respect they deserve. Follow-up activities and on-going monitoring should also be specifically documented.

From the EEOC

“Employers cannot make job assignment decisions based on a client’s preference for a worker of a particular race or national origin. It is imperative for employers to have policies, training and other safeguards in place that help prevent a client’s prejudices from influencing their employment decisions.”

-EEOC Representative

Final Thoughts

Caregivers are a scarce commodity. Providers cannot afford to lose or alienate a single caregiver based upon discrimination or inappropriate behavior by patients.

# # #

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.

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

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

Home Health in a Post-Chevron World

by Elizabeth E. Hogue, Esq. | Sep 27, 2024 | Admin, Advocacy, Audits, Regulatory

by Elizabeth E. Hogue, Esq.

The "Wicked Witch" Chevron is Gone

On June 28, 2024, the U.S. Supreme Court overturned a decision of the Court in 1984 often referred to as “Chevron.” The Chevron case said that Courts must defer to administrative actions that are reasonable interpretations of ambiguous statutory language.

In Loper Bright Enterprises v. Raimondo, however, the U.S. Supreme Court abandoned the decision in Chevron and said that:

- The “deference that Chevron requires of courts reviewing agency action cannot be squared with” the Administrative Procedure Act (APA). The APA “specified that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action…even those involving ambiguous laws – and set aside any such action inconsistent with the law as they interpret it.”
- The framers of the U.S. Constitution envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.”
- The views of the executive branch should inform the judgment of the judiciary, not supersede it.
- “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

What Does it Mean for Providers?

The short answer is that we don’t know yet. It is unclear how the new standards of the Loper Bright decision will be applied and affect health care providers. The Supreme Court said that the recent Court decision does not call past cases into question that were based on Chevron, but existing regulations are not insulated from challenges. It is likely that several providers will “swing for the fences” for favorable rulings based on Loper Bright!

One possible “candidate” for disruption is the reliance of administrative law judges (ALJs) on Chapter 8 of the Medicare Program Integrity Manual. This section offers an overview of use of inferential statistics and statistical sampling to estimate overpayments in Medicare audits. Chapter 8 of the Manual is only nine pages long. ALJs routinely use this section of the Manual to hamper providers’ ability to mount a compelling defense that challenges auditors’ methods using widely accepted standards within the statistical community. Challenges to this practice based on Loper Bright may prevent ALJs from reliance on these sections of the Manual.

Another possible target is the use of sub-statutory and even sub-regulatory guidance from the Centers for Medicare and Medicaid Services (CMS) and the Medicare Administrative Contractors (MACs) by fraud and abuse enforcers to make determinations about illegal conduct, especially under the False Claims Act (FCA). Defendants arguably now have a better chance to challenge the basis of claims of illegal conduct in light of Loper Bright.

The story of Loper Bright has not been written by any means. Surely providers should use this significant change in the law to their benefit whenever possible.

# # #

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.

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

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

What are You Hiding?

by Elizabeth E. Hogue, Esq. | Sep 20, 2024 | Admin, Regulatory

by Elizabeth E. Hogue, Esq.

Bring on the Fraud Enforcers

We Have Nothing to Hide!

Oh, but you do! Statements like this from providers are cringe-worthy. If you have said it before, please don’t ever say it again.

Here’s why:

First, many providers think that when fraud enforcers are required to show intent they must show that providers sat down at their desks on a Friday afternoon, for example, and decided to engage in fraud. On the contrary, enforcers can demonstrate intent by showing that there was fraudulent conduct that providers knew about or should have known about. This is a game changer! It’s not hard to imagine fraudulent conduct that providers should have known about, but have not identified and corrected.

In addition, George Will points out in his Washington Post column, “Have you committed a felony yet? Probably so.” that the volume of legal requirements has skyrocketed. Here is what Mr. Will says:

“Less than a century ago, …a single volume contained all federal statutes. By 2018, they filled 54 volumes – about 60,000 pages. In the past 10 years, Congress has enacted about 2 million to 3 million words of law each year. The average length of a bill is nine times what it was in the 1950s. Agencies publish their proposals and final rules in the Federal Register, which began at 16 pages in 1936, and now expands by an average of more than 70,000 pages annually. By 2021, the Code of Federal Regulations filled about 200 volumes. And in a recent 10-year span, federal agencies churned out approximately 13,000 guidance documents.”

Mr. Will goes on to point out that ignorance of the law is, therefore, inevitable. Congress has added an average of 56 new federal crimes each year so that there are not more than 5,000 federal statutory crimes. In addition, at least 300,000 regulations of federal agencies include criminal sanctions.

Here are some common examples:

- If you are a discharge planner/case manager in a hospital or skilled nursing facility you may not know about guidance from the Office of Inspector General of the U.S. Department of Health and Human Services that says you can’t accept gift cards from post-acute providers that want referrals.
- If you are a home care/private duty provider and accept payments from the Medicaid Program, you may have repeatedly violated technical requirements, such as recording the time caregivers arrive and leave patients’ homes.
- If you provide home health services and use the services of consulting physicians as Medical Directors, chances are very good that fraud enforcers will demonstrate that you violated at least one of a multitude of requirements that govern these relationships.
- Finally, hospice providers know all too well that enforcers are going to claim that their patients are not terminally ill.

Mr. Will says in his column that James Madison predicted our current situation in which laws are “so voluminous that they cannot be read, or so incoherent that they cannot be understood” and “undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”

So, don’t even think that you have nothing to hide, much less say it!

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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.

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

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

NonCompete Agreements and What to do About Them

by Elizabeth E. Hogue, Esq. | Sep 12, 2024 | Admin, Clinical, Regulatory

by Elizabeth E. Hogue, Esq.

What to do About Noncompete Agreements

The Federal Trade Commission (FTC) published a final rule earlier this year that banned noncompete agreements. The final rule was effective on September 4, 2024.

Requirements of the rule included:

- A ban on new concompete agreements with all workers, including senior executives
- Existing noncompete agreements could remain in force for senior executives if
  - they make more than $151,164 per year including salary, commissions, and performance bonuses but not including benefits, board and lodging; and
  - senior executives have authority to make policy decisions for the entire company
- Existing noncompete agreements with workers other than senior executives are unenforceable after the rule is effective

There are a number of exceptions to the rule.

In the meanwhile, litigation

On July 23, 2024, a federal court in Pennsylvania refused to issue a preliminary injunction to prevent implementation of the final FTC rule. The U.S. District Court for the Eastern District of Pennsylvania said that the statutory authority of the FTC to prevent unfair methods of competition under Section 5 of the FTC Act is not limited to procedural rules for adjudications and extends to substantive rulemaking [See ATS Tree Servs. v. Fed. Trade Comm’n, No. 24-1743 (E.D. Pa. July 23, 2024)].

But...

In early July, a federal court in Texas granted a preliminary injunction that delayed the effective date of the final rule. The Court declined to issue a nationwide injunction [See Ryan LLC v. Federal Trade Comm’n, No. 3:24-CV-00986-E (N.D. Tex. July 3, 2024)].

Then, on August 20, 2024, the Judge issued an order in the Ryan case that included a nationwide prohibition on implementation of the FTC rule. The basis of this decision is that the FTC does not have authority to order a ban, and that the rule was arbitrary and capricious. Based on this ruling, employers may continue to enter into and enforce non-compete agreements with workers.

Another but...

A number of state legislatures have enacted restrictions on use of noncompete agreements. As of August 21, 2024, four states ban the use of noncompete agreements and thirty-three states plus the District of Columbia restrict the use of these agreements.

Providers must comply with applicable requirements in the states in which they conduct business. Providers who fail to do so risk enforcement action.

Comfort Keepers, for example, agreed to pay $500,000 to resolve claims that it unfairly restricted workers’ mobility according to the California Department of Justice. Comfort Keepers’ Client Care Agreement that clients were required to sign before receiving care prevented clients from using, hiring, or soliciting current and former Comfort Keepers’ caregivers for up to one year after the termination of services. Violations required payment of $12,500.

So...

The current bottom line is that the FTC rule banning noncompete agreements is not in effect, but providers must comply with applicable state requirements or risk enforcement action.

Stay tuned for more!

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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.

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

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