by Elizabeth E. Hogue, Esq. | Feb 14, 2024 | Admin
by Elizabeth E. Hogue, Esq.
Two former Amedisys employees claim that they were fired in retaliation for alerting management to possible violations of the federal False Claims Act. They then filed a whistleblower, or qui tam, lawsuit [Pilat v. Amedisys, Inc., No. 23-566 (2d Cir. Jan. 17, 2024)]. In their whistleblower suit, the employees claim that they complained internally to supervisors about suspected fraudulent practices and refused to engage in such practices.
The employees, for example, recommended against recertifying patients, but supervisors overruled the recommendations and recertified patients again. One of the employees then refused instructions from his supervisors to recertify the patient yet again. The employee said that the patient was completely independent and it would be “unethical” to do so.
The employees also expressed concern to supervisors about the inability of nurses and therapists to keep up with a large volume of patients. One employee said he had to schedule visits for three times as many patients as was safe. The employees explained that many patients were seen for only a few minutes rather than an appropriate amount of time. The employees said that one nurse was assigned to make eighty-six visits during one week and another was assigned to make seventy-eight visits. Amedisys billed for the visits anyway.
In addition, former employees identified multiple specific instances in which clinicians were instructed to document false information about patients. The false documentation was then used to support treatments for which patients did not qualify or to recommend unnecessary treatments. Supervisors, for example, instructed employees to fraudulently document that a fifty-year-old man whom an employee was treating was not independent and needed assistance to climb stairs. The patient did not need such assistance.
The employees further claimed that a female patient in her late fifties with early onset Parkinson’s disease received services during an episode of care. The severity of her condition was overstated in order to continue treatment.
Perhaps the most vivid example provided by the employees involved a female patient who was approximately seventy years old who had a neurological disorder that limited her mobility. The patient’s condition did not prevent her from leaving home or from driving. Supervisors repeatedly overruled employees’ recommendations to reduce visits even though she was completely independent and it would be “unethical” to provide more intensive treatment. The employees were also told not to document a leg injury that the patient suffered in a car accident because documentation of the accident would make it clear that she was not actually homebound and that she did not meet eligibility requirements of the Medicare Program.
Providers must take seriously employees’ concerns regarding possible fraudulent and abusive practices. Most whistleblowers take their concerns to their employers first. It is only when employers ignore their concerns or, even worse, retaliate against employees for raising issues in the first place, that employees turn to outside enforcers for assistance in pursuing their concerns. Whether or not the allegations of employees are valid, providers must take them seriously. Thorough investigations are required in order to demonstrate to employees that there is no problem or that the problem has been corrected.
Although this case involves home health services, the message applies to all types of providers. The message from this case and numerous other lawsuits is clear: Don’t shoot the proverbial messenger who brings information about possible fraud and abuse violations. There is a very heavy price to be paid.
©2024 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.
by Elizabeth E. Hogue, Esq. | Jan 31, 2024 | Admin, Regulatory
by Elizabeth E Hogue, Esq.
Providers may have heard or read about the importance of Fraud and Abuse Compliance Plans in their organizations. Despite the wealth of available information about Compliance Plans, many providers continue to express uncertainty about their value. Here are some of the questions providers commonly ask about Compliance Plans:
Why should we have a Fraud and Abuse Compliance Plan?
First, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services has clearly stated that, consistent with the Affordable Care Act (ACA) as described below, all providers are now expected to have current Compliance Plans that are fully implemented.
As a practical matter, when providers establish and maintain Compliance Plans, it clearly discourages regulators from pursuing allegations of fraud and abuse violations.
Technically speaking, the Federal Sentencing Guidelines make it clear that establishment and implementation of Compliance Plans is considered to be a mitigating factor. That is, if accusations of criminal conduct are made, the consequences may be substantially less severe because of a properly implemented Compliance Plan.
In addition, providers with Compliance Plans are more likely to avoid fraud and abuse. This is because Plans routinely establish an obligation on the part of every employee to report possible instances of fraud and abuse, and Plans include training for all employees.
Compliance Plans may help to prevent qui tam or so-called “whistleblower” lawsuits by private individuals, rather than by government enforcers, who believe that they have identified instances of fraud and abuse. There are significant incentives to bring these legal actions since whistleblowers receive a share of monies recovered because of their efforts. Some whistleblowers have received millions of dollars. Compliance Plans make it clear that employees have an obligation to bring any potential fraud and abuse issues to the attention of their employers first. Compliance Plans provide a clear path to resolve fraud and abuse issues internally.
In addition, the federal Affordable Care Act (ACA) requires providers to have Compliance Plans. In short, it’s the law!
Finally, the Deficit Reduction Act (DRA) requires providers who receive more than $5 million in monies from state Medicaid Programs per year to implement policies and procedures, provide education to employees, and put information in their employee handbooks about fraud and abuse compliance. These requirements can be met through implementation of Fraud and Abuse Compliance Plans.
We don’t receive reimbursement from the Medicare or Medicaid Programs. Do we still need a Compliance Plan?
Statutes and regulations governing fraud and abuse also apply to providers who receive payments from any federal and state healthcare programs, including Medicaid, Medicaid waiver and other federal and state health care programs, such as TriCare and the VA. Many private insurers have followed the federal government’s lead in terms of fraud and abuse enforcement. Therefore, providers that don’t receive reimbursement from the Medicare Program must have compliance plans, too.
We hear that the OIG of the U.S. Department for Health and Human Services has provided guidance for various segments of the healthcare industry regarding Compliance Plans.
- Specifically, the OIG has already published guidance for clinical laboratories, hospitals, home health agencies, hospices, physicians’ practices, third-party billing companies, and home medical equipment companies. Should we just use the model guidance that is applicable to us?
The answer is, “No!” Guidance from the OIG is not a model Compliance Plan. Guidance from the OIG consists of general guidelines and does not constitute valid Compliance Plans. In addition, the OIG has made it clear that Plans must be customized for each organization.
We have read that, before implementing Compliance Plans, providers must conduct expensive internal audits that can take many months to complete. Is this true?
While beginning the compliance process with an extensive internal audit is certainly one way to proceed, it is not the only viable way to work toward compliance. It is equally valid to begin with Compliance Plans that are customized for the organization and include training for all employees about fraud and abuse, and Compliance Plans. Then all staff members can subsequently participate in internal compliance activities, including audits, with a process in place to handle any issues that arise as a result of the audits.
We have all sorts of policies and procedures in our organization. Why do we need something else called a Compliance Plan?
Compliance Plans are specific types of documents that routinely address fraud and abuse issues that providers do not usually cover in internal policies and procedures. In addition, providers may not gain benefits under the Federal Sentencing Guidelines described in paragraph one (1) above if there is no formal document called a Compliance Plan.
We just spent a lot of money to become accredited or reaccredited. Doesn’t certification mean that we are in compliance?
On the contrary, Compliance Plans appropriately address potential fraud and abuse issues. They also include mechanisms for helping to ensure compliance, such as processes for identification and correction of potential problems that are not addressed during the certification process. In other words, organizations may be accredited, but fail to meet applicable compliance standards for fraud and abuse.
Will the fact that our organization has a Compliance Plan make any difference regarding the outcome of fraud and abuse investigations and the imposition of Corporate Integrity Agreements (CIA’s)?
Yes, it may make a considerable difference, based on statements from the OIG. If providers have Compliance Plans in place during investigations that are current and fully implemented, the OIG may be less aggressive in pursuing potential violations. Enforcers are likely to ask for information about Compliance Plans and related policies and procedures. Enforcers are now also likely to ask providers to show them how much money they have spent on fraud and abuse compliance activities!
When the OIG discovers problems with fraud and abuse in organizations, providers are usually asked to develop and implement a Corporate Integrity Agreement (CIA). The OIG often requires CIA’s to include a process for stringent monitoring by the OIG on a continuous basis. These monitoring activities can be extremely burdensome to providers in terms of both time and money. Providers with valid Compliance Plans may not be asked to develop and implement CIA’s.
Now is the time for all providers to recognize and act upon the need to establish and maintain Compliance Plans. “Working on it” is no longer good enough.
©2024 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.
by Elizabeth E. Hogue, Esq. | Nov 8, 2023 | Clinical
Untitled Document
by Elizabeth E. Hogue, Esq.
Joyce Grayson, a home health nurse for Elara Caring, was murdered on October 28, 2023, in the home of a patient where she was providing services. Ms. Grayson was reported missing by a family member to the local police department. The family member was also able to track her last location to the home of a patient she was scheduled to visit at 8:00 a.m. on the day of her death. The patient resided at a halfway house for convicted sex offenders. Police have not yet formally identified a suspect in Ms. Grayson’s death.
This horrible news reminds of steps that staff members and providers can take to protect their staff members:
- Staff members should be sure of the locations of patients’ homes and have accurate directions. · Employees should contact their supervisors in the event of threatening circumstances.
- During visits, employees should remain alert and watch for signs of possible violence; such as verbal expressions of anger and frustration, threatening gestures, signs of drug or alcohol use, or the presence of weapons.
- When employees are verbally abused in patients’ homes, they should ask the speaker(s) to stop. If verbal abuse continues, caregivers should leave patients’ homes and notify their supervisors that they have done so. · If possible, caregivers should identify more than one exit from patients’ homes and keep a clear path to at least one of them.
- All employees should read or reread The Gift of Fear by Gavin de Becker and take action when their instincts tell them that they should be fearful. · Management should develop a written policy of “zero tolerance” for all incidents of violence, regardless of source. The policy should include animals! The policy must require employees and contractors to report and document all incidents of violence, no matter how minor. 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 when caregivers are present in patients’ homes. Caregivers must be required to report the presence of visible weapons.
- Agencies should develop quality indicators that improve efforts to protect staff. Indicators in quality and safety standards should include patient assault and other instances of violence or threatened violence. The results of these indicators should result in violence prevention plans and training programs in de-escalation of violence.
- Data systems should be strengthened to monitor the exposure of staff members to aggression. More resources should be invested in measuring aggressive events and specific factors that resulted in exposure, such as patient type.
- Ongoing education should be provided to protect staff. Education should focus on intentional actions that staff members must take to recognize, document, and counter threatened or actual violence.
The Connecticut General Assembly recently passed a law to increase protection for healthcare workers that does not include home care providers. Now lawmakers are calling for extension of the legislation to include home healthcare staff. Martin Looney, President Pro Tempore of the Connecticut State Senate told the CT Mirror: “More and more care is going to be provided in a home setting, which is generally a good thing. But if that is true, we need to make sure that the people who are providing that care are safe.”
Amen to that, Mr. Looney! Let’s get to it!
©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.
