Sunday, September 3, 2017
Here's something to give you pause. The HHS Office of Inspector General has released an early alert. The Centers for Medicare & Medicaid Services Has Inadequate Procedures To Ensure That Incidents of Potential Abuse or Neglect at Skilled Nursing Facilities Are Identified and Reported in Accordance With Applicable Requirements (A-01-17-00504) dated August 24, 2017,
alert[s] [the CMS administrator about] ... the preliminary results of our ongoing review of potential abuse or neglect of Medicare beneficiaries in skilled nursing facilities (SNFs). This audit is part of the ongoing efforts of the Office of Inspector General (OIG) to detect and combat elder abuse. The objectives of our audit are to (1) identify incidents of potential1 abuse or neglect of Medicare beneficiaries residing in SNFs and (2) determine whether these incidents were reported and investigated in accordance with applicable requirements.
The 14 page letter provides a lot of detail about the situation and offers a number of recommendations, including immediate action: "implement procedures to compare Medicare claims for [ER] treatment with claims for SNF services to identify incidents of potential abuse or neglect of Medicare beneficiaries residing in SNFs and periodically provide the details of this analysis to the Survey Agencies for further review and ... continue to work with ... HHS ... to receive the delegation of authority to impose the civil monetary penalties and exclusion provisions of section 1150B." Longer term the alert suggests new regulations among other ideas.
September 3, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)
Friday, July 21, 2017
In the latest chapter of an ongoing dispute between a specialized care facility, Melmark, Inc., and the older parents of a disabled adult son, Pennsylvania's intermediate Superior Court of Appeals has ruled in favor of the parents.
The July 19, 2017 appellate decision in Melmark v. Schutt is based on choice of law principles, analyzing whether New Jersey's more limited filial support law or Pennsylvania's broader filial law controlled. If applied, New Jersey law "would shield the [parents] from financial responsibility for [their son's] care because they are over age 55 and Alex is no longer a minor." By contrast, "Pennsylvania's filial support law...would provide no age-based exception to parental responsibility to pay for care rendered to an indigent adult child."
The parents and the son were all, as stipulated to the court, residents of New Jersey. New Jersey public funding paid from the son's specialized care needs at Melmark's Pennsylvania facility for some 11 years. However, when, as part of a "bring our children home" program, New Jersey cut the funding for cross-border placements, the parents, age 70 and 71 year old, opposed return of their 31-year old son, arguing lack of an appropriate placement. Eventually Melmark returned their son to New Jersey against the parents' wishes, with an outstanding bill for unpaid care totaling more than $205,000, incurred over his final 14 months at Melmark.
Both the Pennsylvania trial and appellate courts ruled against the facility, concluding that "the New Jersey statutory scheme reflects a legislative purpose to protect its elderly parents from financial liability associated with the provision of care for their public assistance-eligible indigent children under the present circumstances." The courts rejected application of Pennsylvania's law as controlling.
This is a tough case, with hard-line positions on the law staked out by both sides. One cannot expect facilities to provide quality care for free. On the other side, one can empathize with families who face limited local care choices and huge costs.
Ultimately, I anticipate these kinds of cross-border "family care and cost" disputes becoming more common in the future for care-dependent family members, as the impact of federal funding cuts trickle down to states with uneven resources of their own. Some of these problems won't see the courtroom, as facilities will likely resist any out-of-state placement where payment is not guaranteed by family members, old or young.
July 21, 2017 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Housing, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, July 19, 2017
Governing ran a recent story about how states will pay for in-home care for their residents who are elders. As Demand for At-Home Care Grows, States Debate How to Pay for It considers that aging Boomers may not want to reside in nursing homes and if they stay at home, they will need care at home. With a likely greater demand for inhome care, how will it be delivered and who will pay?
[F]iguring out how to pay for more home-based care is mostly left up to the states. Medicaid is the primary payer for home- and community-based care, although states can decide whether or not they’ll offer the coverage. All 50 states and the District of Columbia do have home- and community-based programs of some type, but most states have waiting lists for their programs. Meanwhile, 59 percent of Medicaid funding goes to nursing homes, where about half of those in long-term care receive their services. “Nursing home institutions are a powerful player in the health-care setting, so there’s long been political pressure to not pay for more home health care,” says [Kevin] Prindiville [, executive director of Justice in Aging].
The article highlights California and Washington state, at opposite ends of the spectrum in handling this issue. Waivers may help, or shifting money through legislation that gives flexibility.
Tuesday, July 18, 2017
I read this article last week in the New York Times (also published by the Kaiser Health News), the topic of which is something we should consider seriously. Poor Patient Care at Many Nursing Homes Despite Stricter Oversight discusses Medicare's Special Focus status.
While special focus status is one of the federal government’s strictest forms of oversight, nursing homes that were forced to undergo such scrutiny often slide back into providing dangerous care, according to an analysis of federal health inspection data. Of 528 nursing homes that graduated from special focus status before 2014 and are still operating, slightly more than half — 52 percent — have since harmed patients or put patients in serious jeopardy within the past three years.
The article highlights some individuals' experiences, with the basis of the article concerning the Special Focus program.
Special focus facility status is reserved for the poorest-performing facilities out of more than 15,000 skilled nursing homes. The Centers for Medicare and Medicaid Services, or C.M.S., assign each state a set number of slots, roughly based on the number of nursing homes. Then state health regulators pick which nursing homes to include.
More than 900 facilities have been placed on the watch list since 2005. But the number of nursing homes under special focus at any given time has dropped by nearly half since 2012, because of federal budget cuts. This year, the $2.6 million budget allows only 88 nursing homes to receive the designation, though regulators identified 435 as warranting scrutiny.
The article also discusses lapses by those facilities once on the watch list, how a facility earns its way off the watch list and how long it typically takes to do so and the staffing ratios in such facilities.
Background information about the special focus initiative can be found on the CMS website. You can find the list of special focus facilities on CMS website. For example, here is the one published in June of 2017.
Monday, May 8, 2017
The Elder Justice Initiative (EJI) has announced the release of a guide and toolkit for creating Multi-Disciplinary Teams (MDT). The EJI has an MDT Technical Assistance Center (or MDT TAC). EJI is also offering a free webinar to help users get started creating an MDT. The email announcement explains how to get started:
The Elder Justice Initiative (EJI) is pleased to announce the launch of the new Multidisciplinary Team Guide and Toolkit. The Toolkit is designed for anyone looking to create or grow a local elder abuse MDT, regardless of their experience with MDTs. The web-based Toolkit is enhanced for use on mobile devices and contains easy-to-download PDF sample documents and citations.
On May 30, take a live walk through the Toolkit. The EJI webinar will cover many aspects of the Toolkit, including:
Layout and usability
Highlights from each chapter
Questions and feedback
Sunday, April 23, 2017
Justice in Aging has released a new fact sheet, New Guidance from SSA on Spousal & Survivors Benefits for Married LGBT Individuals. "On March 1, 2017, the Social Security Administration (SSA) announced it would reopen any decision to deny spousal or survivors benefits to a same-sex spouse based on a discriminatory marriage ban, which resulted in a loss of benefits to the individual who filed the claim." The fact sheet notes an SSA ruling and POMS. "This policy change applies to applications for spousal or survivors benefits that SSA denied prior to the Windsor and Obergefell decisions because it did not recognize their marriages. Even those who began receiving SSA benefits following the Supreme Court decisions may be due retroactive benefits for the period between when they first applied (and were denied) and when SSA finally recognized their marriage." The fact sheet also explains who is not affected as well as who might be. The fact sheet concludes explaining that SSA is in the process of reaching out to 800 beneficiaries whose benefits were denied to tell them their applications are being reopened.
Click here to read the full fact sheet.
Tuesday, February 28, 2017
Paula Span, the thoughtful columnist on aging issues from the New York Times, offers "Gorsuch Staunchly Opposes "Aid-in-Dying." Does It Matter?" The article suggests that the "real" battle over aid-in-dying will be in state courts, not the Supreme Court.
I'm in the middle of reading Judge Gorsuch's 2006 book, The Future of Assisted Suicide and Euthanasia. There are many things to say about this book, not the least of which is the impressive display of the Judge's careful sorting of facts, legal history and legal theory to analyze the various advocacy approaches to end-of-life decisions, with or without the assistance of third-parties.
With respect to what might reach the Supreme Court Court, he writes (at page 220 of the paperback edition):
The [Supreme Court's] preference for state legislative experimentation in Gonzales [v. Oregon] seems, at the end of the day, to leave the state of the assisted suicide debate more or less where the Court found it, with the states free to resolve the question for themselves. Even so, it raises interesting questions for at least two future sorts of cases one might expect to emerge in the not-too-distant future. The first sort of cases are "as applied" challenges asserting a constitutional right to assist suicide or euthanasia limited to some particular group, such as the terminally ill or perhaps those suffering grave physical (or maybe even psychological) pain....
The second sort of cases involve those like Lee v. Oregon..., asserting that laws allowing assisted suicide violate the equal protection guarantee...."
While most of the book is a meticulous analysis of law and policy, in the end he also seems to signal a personal concern, writing "Is it possible that the Journal of Clinical Oncology study is right and the impulse for assistance in suicide, like the impulse for old-fashioned suicide, might more often than not be the result of an often readily treatable condition?"
My thanks to New York attorney, now Florida resident, Karen Miller for pointing us to the NYT article.
February 28, 2017 in Advance Directives/End-of-Life, Consumer Information, Crimes, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Religion, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, February 13, 2017
Mark your calendars. The Supreme Court is hearing oral arguments on February 22, 2017 in the case of Kindred Nursing Centers Limited Partnership, dba Winchester Centre for Health and Rehabilitation, nka Fountain Circle Health and Rehabilitation, et al., Petitioners v. Janis E. Clark, et al., docket # 16-32.
The Federal Arbitration Act (FAA) provides that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2 (emphasis added). That provision requires states to "place  arbitration contracts 'on equal footing with all other contracts."' DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 468 (2015) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006)).
The Supreme Court of Kentucky here refused to enforce the parties' arbitration agreements because it held that the attorneys-in-fact who signed those agreements lacked authority to enter into arbitration agreements-despite broad powers of attorney, including the power to make "contracts"-because those agreements waive a "divine God-given right" to a jury trial. App., infra, 43a. The court concluded that only an express mention of arbitration agreements in the power of attorney permits an attorney-in-fact to bind her principal to an arbitration agreement (Ibid.), even though Kentucky law does not require such an express mention of any other type of contract.
The question presented is:
Whether the FAA preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.
Wednesday, February 1, 2017
Several years ago CMS entered into a settlement in litigation that has become known as the Jimmo case. CMS agreed that the improvement standard wasn't in fact a standard for determining further Medicare therapy coverage and all was good, or so it seemed. Yet, now we learn it's not, according to a recent story in Kaiser Health News. Medicare’s Coverage Of Therapy Services Again Is In Center Of Court Dispute explains
Four years after Medicare officials agreed in a landmark court settlement that seniors cannot be denied coverage for physical therapy and other skilled care simply because their condition is not improving, patients are still being turned away.
So federal officials and Medicare advocates have renewed their court battle, acknowledging that they cannot agree on a way to fix the problem. Earlier this month, each submitted ideas to the judge, who will decide — possibly within the next few months — what measures should be taken.
The settlement was supposed to be the end of the matter, and instead of the improvement standard, Medicare was to make the decision as follows, "not ... on the 'potential for improvement from the therapy but rather on the beneficiary’s need for skilled care.'” So in August of last year, the judge ordered the parties to get together to "improve" Medicare's educational initiative for those who deal with the claims and staff hotlines, as well as the ALJs. The parties reached an impasse, so it's back to court.
Monday, January 9, 2017
3L Villanova Law Student Jennifer A. Ward has an interesting analysis of the Third Circuit's decision in Zahner v. Sec'y Pa Dept. of Human Servs., 802 F.3d 497 (3d Cir. 2015), published in a recent issue of the Villanova Law Review. She begins with a summary of the Zahner decision and an outline of her analysis:
[T]he Third Circuit examined whether short-term annuities, a specific instrument used in Medicaid planning, qualified for the DRA's safe harbor provision. If so, assets used to purchase short-term annuities would be sheltered from factoring into individuals' eligibility for Medicaid. Holding that short-term annuities can qualify for protection, the Third Circuit's decision signifies that the DRA did not completely foreclose the “use of short-term annuities in Medicaid planning.”
This Casebrief argues that the Third Circuit's Zahner decision is a win for elder law attorneys and their clients, as it solidifies the viability of the use of short-term annuities in Medicaid planning. Part II examines how individuals take part in Medicaid planning, including a discussion of the DRA and the use of annuities in planning. Part III presents the facts of Zahner and reviews the Third Circuit's analysis. Part IV analyzes the Third Circuit's decision to approve the use of short-term annuities. Part V advises elder law practitioners on the use of short-term annuities going forward. Part VI concludes by discussing the long-term viability of short-term annuities.
After Zahner, elder law practitioners are free to use short-term annuities while guiding their clients through the Medicaid planning process. The Third Circuit will not bar the use of qualified short-term annuities in Medicaid planning, instead leaving any change in policy to Congress. Therefore, until Congress acts, short-term annuities are a viable planning tool in the Third Circuit for the foreseeable future.For people who wish to leave assets to loved ones, Zahner presents good news. Rather than causing people to exhaust their savings on long-term care, Zahner provides individuals greater ability to protect resources through Medicaid planning.
Monday, November 7, 2016
A federal district court in Mississippi has entered an injunction prohibiting the CMS rule against pre-dispute arbitration from taking effect at the end of this month. According to a story on NPR, "[t]he reason for granting the injunction, the court explained in its order, is that it believes the new rule represents "incremental 'creep' of federal agency authority" — in this case the Centers for Medicare & Medicaid Services — 'beyond that envisioned by the U.S. Constitution.'"
The 40 page order is available here.
Wednesday, October 26, 2016
DOJ announced recently that it had settled a False Claims case against Life Care Centers of America Inc. (Life Care) and its owner, Forrest L. Preston. The defendants agreed to pay $145 million to settle a case where the Government claimed “that Life Care violated the False Claims Act by knowingly causing skilled nursing facilities (SNFs) to submit false claims to Medicare and TRICARE for rehabilitation therapy services that were not reasonable, necessary or skilled….” In addition, the defendant also signed a Corporate Integrity Agreement with the Office of Inspector General (HHS-OIG) for HHS. Under this 5 year agreement, “an independent review organization [will] … annually assess the medical necessity and appropriateness of therapy services billed to Medicare” by the defendant. The suit was brought pursuant to the whistleblower provision of the False Claims Act.
According to the suit, the defendant put corporate-wide procedures and polices into place that caused a maximum number of “beneficiaries in the Ultra High reimbursement level irrespective of the clinical needs of the patients, resulting in the provision of unreasonable and unnecessary therapy to many beneficiaries.” Further the defendant tried to keep SNF residents longer than needed so the defendant could continue to bill for rehab, even though the therapists concluded therapy should be ended. The defendant kept careful track of the therapy minutes per patient and the patient’s therapy days so that the maximum number of patients were at that “highest level of reimbursement for the longest possible period.”
According to an email I received, the amount of the settlement was partially based on statistical sampling.
Thanks to Laurence Hooper for emailing me.
Monday, October 17, 2016
We knew it was coming. The American Healthcare Association has filed suit in the federal district court in the Northern District in Mississippi, challenging the CMS rule that prohibits pre-dispute arbitration in nursing home admission contracts, American Health Care Association Files Court Challenge to Arbitration Rule: CMS Exceeds Statutory Authority by Banning Pre-Dispute Arbitration Agreements in Updated Requirements of Participation
The press release explains
The American Health Care Association (AHCA) today filed a lawsuit against the Department of Health and Human Services challenging the legality of a provision of a recently released regulation. The Requirements of Participation final rule, issued by the Centers for Medicare and Medicaid Services (CMS) on September 29, will prohibit skilled and nursing care facilities from entering into pre-dispute arbitration agreements with residents at their centers, no matter how fair or beneficial those agreements may be to residents.against the Department of Health and Human Services challenging the legality of a provision of a recently released regulation. The Requirements of Participation final rule, issued by the Centers for Medicare and Medicaid Services (CMS) on September 29, will prohibit skilled and nursing care facilities from entering into pre-dispute arbitration agreements with residents at their centers, no matter how fair or beneficial those agreements may be to residents.
The suit "request[s] the courts [act] to stop the enforcement of the arbitration portion of the rule after its effective date of November 28, 2016." The complaint is available here.
Wednesday, October 12, 2016
On October 11, 2016, the U.S. Court of Appeals for the D.C. Circuit ruled in PPH Corp. v. Consumer Financial Protection Bureau. Although initially conceived as a "multi-member independent agency" in its final form approved by Congress, the CFPB is "an independent agency headed not by a multi-member commission but rather by a single Director. Because the CFPB is an independent agency headed by a single Director and not by a multi-member commission, the Director of the CFPB possesses more unilateral authority – that is, authority to take action on one’s own, subject to no check –than any single commissioner or board member in any other independent agency in the U.S. Government. Indeed, as we will explain, the Director enjoys more unilateral authority than any other officer in any of the three branches of the U.S. Government, other than the President." The opinion notes the great power held by the director and describes it as "massive in scope, concentrated in a single person, and unaccountable to the President [and thus] triggers the important constitutional question at issue in this case." Examining historical precedent and discussing the lack of checks on the director's power under the current structure which (the court described as a "threat to individual liberty posed by a single-Director independent agency"), the court held "that the CFPB is unconstitutionally structured."
The court looks next at the appropriate remedy, with the Plaintiff arguing the agency should be shuttered. Instead, the court severed the offending language in the statute, to provide "the President ... the power to remove the Director at will, and to supervise and direct the Director." The court goes on at length (and acknowledges this) to explain its ruling, and to also address the Plaintiff's challenge to the fine imposed against it by the CFPB.
The CFPB therefore will continue to operate and to perform its many duties, but will do so as an executive agency akin to other executive agencies headed by a single person, such as the Department of Justice and the Department of the Treasury. Those executive agencies have traditionally been headed by a single person precisely because the agency head operates within the Executive Branch chain of command under the supervision and direction of the President. The President is a check on and accountable for the actions of those executive agencies, and the President now will be a check on and accountable for the actions of the CFPB as well.
The opinion is available here.
Monday, October 10, 2016
Will New Federal Ban on Pre-Dispute "Binding" Arbitration Clauses in LTC Agreements Survive Likely Challenges?
My colleague Becky Morgan provided prompt links and important initial commentary for CMS's recently issued final regulations that are intended to "improve the quality of life, care, and services" in Long-Term Care (LTC) facilities. As we start to digest the 700+ pages of changes and commentary, it seems clear the battle over a key section that bans pre-dispute binding arbitration agreements is already shaping up. This rule, at 40 CFR Section 483.70(n), has an implementation date of November 28, 2016.
The regulatory ban on pre-dispute binding arbitration in covered facilities raises the question of "conflict" with the Federal Arbitration Act (FAA), 9 U.S.C. Section 1 et seq. The 2012 per curium ruling by the Supreme Court in Marmet Health Care Center, Inc. v. Brown, shapes the issue, if not the result.
CMS distinguishes Marmet and presents the rule change as based on authority granted under the Social Security Act to the Secretary of Health and Human Service to issue "such rules as may be necessary to the efficient administration of the functions of the Department," which necessarily includes supervision of all providers, including LTC providers, who "participate in the Medicare and Medicaid programs." CMS points to the long history of regulatory authority over LTC including long-celebrated "patient's rights" legislation adopted in the late 1980s. CMS further explains (at page 399 of the 700 page commentary to the new rules):
Based on the comments received in response to this rulemaking, we are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair because, among other things, it is almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. We believe that LTC residents should have a right to access the court system if a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary. . . .
We recognize that an argument could be made that Medicare and Medicaid beneficiaries can assert in Court the FAA's saving clause if they believe that a pre-dispute arbitration agreement should not be enforced. However, the comments we have received have confirmed our conclusion that predispute arbitration clauses are, by their very nature, unconscionable. As one commenter noted, it is virtually impossible for a resident or their surrogate decision-maker to give fully informed or voluntary consent to such arbitration provisions. That same commenter 402 also noted that refusing to agree to the arbitration clause, in most cases, means that care will be denied.
Furthermore, Medicare and Medicaid beneficiaries are aged or disabled and ill. Many beneficiaries lack the resources to litigate a malpractice claim, much less an initial claim seeking to invalidate an arbitration clause. Rather than requiring Medicare and Medicaid beneficiaries to incur the additional fees, expense, and delay that would be the direct cost of opposing a motion to enforce arbitration, we have concluded that this is precisely the type of situation envisioned by the Congressional grant of authority contained in sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the Secretary to establish "such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”
By coincidence, just hours before the final LTC rules issued by CMS, the Pennsylvania Supreme Court enforced pre-dispute arbitration agreements for nursing home residents in Taylor v. Extendicare Health Facilities (decided September 28, 2016).
The LTC industry seems ready to fight, as reported by industry insiders at McKnight's News on September 29, 2016:
Both the American Health Care Association and LeadingAge expressed disappointment in the arbitration ban in statements provided to McKnight's.
“That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety,” said Mark Parkinson, president and CEO of AHCA.
LeadingAge has supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS has overstepped its boundaries with the ban, the group said.
“Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement.
Stay tuned -- but don't hold your breath as the next round is likely to take some time. My special thanks to Megan Armstrong, Class of 2018 at Dickinson Law, for sharing key links with me for our research on this important development.
October 10, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Tuesday, September 27, 2016
Kindred Health Care Inc. Hit With Sanctions for Failure to Comply with Federal Settlement Terms on Hospice Care
Kindred Healthcare Inc., the nation's largest post-acute care provider (after acquiring Gentiva Healthcare in 2015) recently paid more than $3 million to the federal government as sanctions for inaccurate billing practices under Medicare for hospice services. That may not sound like a lot of money in this day and age of Medicare and Medicaid fraud cases, right? After all, North American Health Care Inc. reportedly settled a false claims case with the Department of Justice earlier this month in a rehabilitation services investigation by agreeing to pay $28 million.
But, the Kindred Health Care sanction is actually a penalty for failing to comply with the terms of a previous multimillion dollar settlement by the feds with Gentiva. As part of that settlement, the company and its successors agreed to comply with a Corporate Integrity Agreement (CIA). From the Office of Inspector General, Department of Health and Human Services press release:
It is the largest penalty for violations of a CIA to date, the Office of Inspector General (OIG) said.
The record penalty resulted from Kindred's failure to correct improper billing practices in the fourth year of the five-year agreement. OIG made several unannounced site visits to Kindred facilities and found ongoing violations. "This penalty should send a signal to providers that failure to implement these requirements will have serious consequences," Mr. Levinson said. "We will continue to closely monitor Kindred's compliance with the CIA."
OIG negotiates CIAs with Medicare providers who have settled allegations of violating the False Claims Act. Providers agree to a number of corrective actions, including outside scrutiny of billing practices. In exchange, OIG agrees not to seek to exclude providers from participating in Medicare, Medicaid, or other Federal health care programs. CIAs typically last five years.
The post-acute care world -- which includes hospice, nursing homes, rehabilitation and home care -- is a tough marketplace. According to a McKnight News report, Kindred is also closing some 18 sites as "underperforming." For more on Kindred's operations, including its explanation of the penalty as tied to pre-acquisition practices of Gentiva, see this article in Modern Healthcare, "Kindred Pays Feds Largest Penalty Ever Recorded for Integrity Agreement Violations."
Tuesday, August 2, 2016
McKnight's News is a publication for insiders in the long-term care industry, reaching professionals who operate nursing homes, extended care sites, CCRCs and more. John O'Connor, who has been with McKnight's for more than 20 years, recently published a candid editorial about factors affecting health care fraud in the industry. He writes:
[G]iven how easy it is to cheat these days, we probably shouldn't be terribly surprised that so many operators give in to temptation. That's especially the case when it comes to invoice preparations.
Let's be honest: How hard is it to put a resident in a higher RUGs category than is probably accurate? Or to bill for therapy services that were not actually delivered? Or to have therapists working overtime doing services that never should have occurred in the first place? And that, my friends, is just the tip of the proverbial iceberg.
Throw in stiff competition, incentives that reward upcoding, a dearth of interested investigators and good old-fashioned human greed, and what we have here is a breeding ground for creative accounting.
For more, read "It's Time for 'The Talk' About Healthcare Fraud."
Wednesday, June 8, 2016
The Office of Inspector General issues regular reports to Congress, and the most recent report indicates that for the period of October 1, 2016 to March 31, 2016, the total amount of expected recoveries arising from allegations of healthcare fraud was $2.77 billion. That number is "up" by a billion dollars over the first half of fiscal year 2016.
Hopefully none of the readers of this blog have ever been a victim of a consumer scam, had their identities stolen, or know someone who has been a victim. That said, it is unfortunately likely that we all know someone who has been a victim of a scam. But there is good news on an international front regarding a scam that required victims to send money in order to claim their "winnings".
An article about efforts from U.S. and Dutch law enforcement efforts explain that FIOD and US DoJ conduct simultaneous operations against worldwide multi-million euro fraud with false letters. The article explains Dutch law enforcement is seizing mail from 300 mailboxes and is investigating 6 companies. At the same time DOJ filed suit "against two of the suspected companies and one director in the Netherlands, on behalf of hundreds of thousands of victims." Here's how this scam worked
[T]he main suspects sent millions of letters to people in the United States, Great Britain, Switzerland, Italy, France, Japan and many more countries. In the letters, addressed to people personally, the recipients were made to believe that they had won an award in the amount of money or a check, which they had not claimed yet. Another example was that the sender of the letter intended to give money to the recipient as an act of charity. In addition, letters were sent which stated that the recipient was a guaranteed winner in a lottery. To be able to transfer the money to the recipient, the latter had to send a cash amount of between 20 and 45 euro or a cheque, each time to a mailbox in the Netherlands.
In various letters, approximately 300 different mailbox numbers in the Netherlands were mentioned. Allegedly, the six suspected Dutch companies, which are the subject of the FIOD-investigation manage a large part of the mailboxes, empty them and process the mail. Presumably, the companies were allowed to keep part of the money as payment for services rendered, but the larger part of the money was transferred to bank accounts, which allegedly belonged to the main suspects of the fraud.
Thursday, May 26, 2016
Senior residential care provider Life Care Centers of America is the focus of recent legal news, including:
- KOAA TV 5 News: Colorado Jury Awards $5.5 million in wrongful death suit against Life Care Center of Pueblo.
- Chattanooga Times Free Press: Settlement May be Brewing in Government's Longtime Federal Case alleging False Claims - Billing Practices by Life Care Centers of America