What Can Providers Give to Patients, Part 4

by Elizabeth E. Hogue, Esq. | Nov 13, 2025 | Legal

by Elizabeth E. Hogue, Esq.

What Can Providers Give to Patients...

...and COVID-19

On May 24, 2021, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) issued another FAQ on the Application of Administrative Enforcement Authorities to Arrangements Directly Connected to the Coronavirus Disease:

Would the offer or provision of cash, cash-equivalent, or in-kind incentives or rewards to Federal health care program beneficiaries who receive COVID-19 vaccinations during the public health emergency violate the OIG’s administrative enforcement authorities?

Covid Vaccine Incentives

The OIG first addressed this question by acknowledging that a broad range of entities, including providers, are offering a wide variety of incentives and rewards to recipients who are vaccinated; such as food and beverages, cash, and tickets to concerts and sporting events. The OIG recognizes that widespread vaccine administration is crucial to the pandemic response and that incentives and rewards may promote broader access and increase the number of recipients.

A question of legality

The OIG also pointed out, however, that these rewards and incentives may violate the federal Anti-Kickback Statute (AKS) and the Civil Monetary Penalties Law (CMPL) governing beneficiary inducements.

An Exception to the Rule

The OIG then concluded that providers, in the limited context of the COVID-19 public health emergency, may give rewards or incentives to beneficiaries who receive either one or both doses of the vaccine because such incentives and rewards “would be sufficiently low risk under the Federal anti-kickback statute and Beneficiary Inducements CMP.”

With Limitations

Providers must, however, meet the following requirements:

The incentive or reward must be furnished in connection with receipt of a required dose of COVID-19 vaccine, including either one or two doses depending on vaccine type.

The vaccine administered is authorized or approved by the Food and Drug Administration (FDA) as a vaccine for COVID-19 and is administered in compliance with all other applicable federal and state rules and regulations, including conditions for receipt of vaccine supplies from the federal government by providers.

Incentives or rewards are not tied to or contingent upon any other arrangement or agreement offering incentives or rewards between providers and beneficiaries.

Incentives or rewards are not conditioned on recipients’ past or anticipated future use of other items or services that are reimbursable in whole or in part by federal health care programs.

Incentives or rewards are provided during the COVID-19 public health emergency.

Does Not Apply

The OIG then pointed out that the AKS and CMPL relate to items and services for which payment may be made in whole or in part under a Federal health program. According to the OIG, it is unlikely that these statutes are implicated by incentive and rewards furnished to commercially insured or uninsured individuals.

Not Specific to Covid

Finally, the OIG concluded by saying that it would not express any opinion on the merits or utility of particular incentives or rewards to address the goal of encouraging vaccination.

As long as the criteria above are met, providers may give incentives or rewards to beneficiaries in order to encourage them to be vaccinated.

This article is part 4 in the series. Read Part 1, Part 2, and Part 3.

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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.

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

Fraudsters Arrested, Oz Issues Warning

by Kristin Rowan | Jun 6, 2025 | CMS, Hospice, Medicaid, Medicare, Medicare Advantage, Regulatory

by Kristin Rowan, Editor

Fraudsters Arrested, Oz Issues Warning

Fraud in California

Fraudsters arrested in West Covina, CA this week were allegedly running a Medicare scheme. Authorities arrested hospice owner-operator Normita Sierra. They charged her with nine counts of health care fraud, one count of conspiracy, and four counts illegal remuneration (kick-backs) for health care referrals. The U.S. Attorney’s Office named co-conspirator Rowena Elegado. They also arrested her and charged her with one count of conspiracy and four counts of illegal remuneration for health care referrals.

Kickbacks

Sierra and Elegado worked together to pay marketers to recruit patients who did not have a hospice referral from their PCP and who were not terminally ill. Some of the kickbacks paid to marketers were as high as $1,300 per patient per month. After six months, the patients were referred out to Sierra’s home health company.

Medicare Claims

According to the U.S. Attorney’s Office, from 2018 to 2022, Sierra’s hospice agences submitted $4.8 million in fraudulent claims. Of those claims, Medicare paid approximately $3.8 million.

Dr. Oz Issues Warning

In a video statement, Dr. Oz explained how Medicare recipients are falling victim to scams. Sales people call, email, and even knock on your door, offering advice, free samples, and referrals. These marketers have one goal: get you sign a piece of paper. That paper signs you up for hospice care and agrees to allow a specific hospice agency to provide that care. The hospice agency then bills Medicare for services they never provide. Watch the video statement here.

HHS OIG Issues Consumer Alert

In a similar statement, HHS issued a consumer alert regarding DME companies. The alert warns that some DME companies are contacting Medicare beneficiaries. They claim to work for or on behalf of Medicare. Once they receive the patient’s Medicare number, they bill Medicare for unnecessary medical items. These items include urinary catheters, knee and back braces, orthotic braces, and prescription drugs, which may or may not ever be sent to the patient. HHS urges enrollees not to give their Medicare number to anyone. Further, they suggest regulary reviewing items charged to insurance, and refusing delivery of any medical supply not ordered by a physician.

Combating Waste, Fraud, and Abuse

Dr. Oz and CMS have spoken numerous times about combatting the waste, fraud, and abuse withing the Medicare and Medicaid systems. Originally a strong proponent for Medicare Advantage, Oz has promised to audit MA after discovering the government pays more for MA than traditional Medicare. Oz also promised to reduce the amount of prior authorization requests needed before a patient gets services. Oz responded to the Republican-backed House bill requiring more oversight on Medicaid eligibility. Oz indicated that some Medicaid patients are enrolled in more than one state and that Medicaid is paying for able-bodied patients. The waste, fraud and abuse across Medicare and Medicaid is costing the government between $1 and $10 billion and Dr. Oz plans to find it and make significant changes to the management of the system.

A Cautionary Tale for Hospice Providers

You may be thinking, “What does this have to do with me?” Unfortunately, even the most scrupulous hospice agencies can fall prey to marketers running schemes. There are legitimate referral resources in the market who can help your agency get more referrals and more clients. There are also underhanded marketers who know how the system works. These predators will promise new referrals (for a fee) and then enroll uneligible patients without your knowledge. If you are working with or looking for a referral partner for your hospice agency, use one that is referred by someone you trust, and/or do a lot of research on the company history before working with anyone. Be especially wary of the ones who promise much more than what most referral companies offer.

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Kristin Rowan has been working at The Rowan Report since 2008. She is the owner and Editor-in-chief of The Rowan Report, the industry’s most trusted source for care at home news, and speaker on Artificial Intelligence and Lone Worker Safety and state and national conferences.

She also runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in content creation, social media management, and event marketing. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©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.

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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.

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!

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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.

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

Managed Care Plans: How to Meet Their Needs

by Elizabeth E. Hogue, Esq. | Aug 1, 2024 | Clinical

by Elizabeth E. Hogue, Esq.

What do Managed Care Plans Really Want from Providers of Services to Patients in Their Homes?

Medicare Managed Care Plans have a long history of disinterest in provision of services to patients in their homes. Despite the fact that they are mandated to provide the same services that enrollees in Medicare fee-for-services receive, they just haven’t done it. Common practices among Plans of draconian, untimely preauthorization processes and doling out authorizations for visits a few at a time make it clear that Plans have seen no real value in services to patients at home.

OIG Investigates

Plans, of course, should have been very interested in services at home. These services save money and keep patients at home where they want to be. Services at home are just generally a beautiful thing!

At the same time, it’s fair to say that the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), the primary enforcer of fraud and abuse prohibitions, has Medicare Managed Care Plans in its crosshairs. A key area of concern for the OIG is that Medicare Managed Care Plans make visits to patients in their homes looking for additional diagnoses so that the Plans will receive more money per patient. The OIG is especially critical of this practice because review of medical records of patients who received visits at homes and whose acuity increased as a result never received any care for these new diagnoses.

Managed Care Plans in the News

The Wall Street Journal recently reported that between 2018 and 2021 Plans received $50 billion for diagnoses added to members’ charts, at least some of which resulted from visits to patients in their homes.

After years of disinterest, Plans are now quite interested in at home services. Is it possible that Plans’ newfound interest is related to a desire to increase revenue through home visits? It appears so. Take, for example, comments by the CEO of UnitedHealth Group, Andrew Witty, during an investment call on July 16, 2024.

Managed Care Plan Responds

UnitedHealth Group CEO Andrew Witty

Mr. Witty reported to investors that staff made more than 2.5 million home health visits to Plan members in 2023. “As a direct result, our clinicians identified 300,000 seniors with emergent health needs that may have otherwise gone undiagnosed,” Mr. Witty said. “They connected more than 500,000 seniors to essential resources to help them with unaddressed needs.”

Former UnitedHealth employees told The Wall Street Journal that home visits were used to add diagnoses to patients’ records. They said that clinicians used software during visits that offered suggestions about what illnesses patients might have.

It now looks like it’s possible that at-home care is being hijacked by Medicare Advantage Plans to help Plans engage in practices that the OIG views as questionable.

Please say it ain’t so!

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.