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Is Your Agency Employing a Physician to Conduct Home Health Face-to-Face Visits? Have You Assessed the Risks?

August 29, 2012 by  
Filed under Home Health & Hospice

Home Health Face-to-Face(August 29, 2012): Home health agencies have a long history of being scrutinized by government authorities.  This scrutiny even further intensified after passage of the Affordable Care Act (ACA), which was recently upheld by the Supreme Court. Under the ACA, claims for home health agency services are now required to have a face-to-face visit by their physician.  This change is intended to help further ensure that the patients properly qualify for skilled nursing services and are, indeed, homebound. Specifically, a physician and patient must have a face-to-face encounter at most 30 days after a home health agency has initiated services, and at most, 90 days before. Nevertheless, it can be difficult for a home health agency to guarantee that this is done, as the home health agency does not usually have control over physicians or patients.

In response to this challenge, a relatively new practice has emerged in some parts of the country, with home health agencies actually employing traveling physicians. These arrangements, while not yet tested under most states’ “Corporate Practice of Medicine Act,” appear to allow a home health agency to direct a physician to examine a patient and determine whether the patient is eligible for home health agency care and treatment. Because homebound patients, by their definition, cannot leave the home without a considerable and taxing effort,” it is often difficult for these patients to regularly see their primary care physician. Under this new arrangement, a physician would ostensibly visit patients in their homes on an as-needed basis, both to certify and / or re-certify a patient’s continuing need for skilled nursing services.  The visiting physician would also see to a patient’s traditional  primary care needs.

I.  Concerns Regarding the Employment of a Physician by a Home Health Agency:

If your home health agency is employing a physician to conduct face-to-face evaluations, both the home health agency and the employed physician should carefully consider the myriad possible problems which could arise under this scenario.  Frankly, a violation of your state’s “Corporate Practice of Medicine Act” could be the least of your problems.  This business arrangement could also constitute a violation of the Federal Anti-Kickback Statute if it is not properly constructed.  Depending on the facts, it could also present a problem under Stark.  Stark is a complex, confusing, and technical law, and is also “strict liability”, meaning that if a violation occurs, it doesn’t matter if you intended for it to occur. You do not need a “mens rea” to violate Stark.Therefore, it is essential that you have an experienced health lawyer examine this business arrangement to help ensure that it meets all regulatory and statutory requirements.

Most states have some version of a Corporate Practice of Medicine Act, which prohibits or limits the managerial and business responsibilities of lay persons and non-practicing physicians. The goal of these Acts is to preserve the physician-patient relationship, with special emphasis on ensuring that the doctor can exercise independent medical judgment, free from self-interest or conflicting relationships. In situations where a home health agency employs one or more physicians, it must be very careful about defining or at all limiting the physicians’ independence with respect to patients.

II.  Final Remarks:

To their credit, most home health agencies are attempting to remain financially viable while ensuring that they are compliant with government rules and regulations. Given the complexity of the laws and regulations governing these skilled services, it can be a difficult task for many providers to meet their obligations. Nevertheless, robust compliance initiatives can keep a home health agency, its owners and its employees stay out of trouble.  If you have not already done so, it is essential that you immediately work with your attorney to develop and implement an effective Compliance Plan.  Although no Compliance Plan can completely keep ou out of harm’s way, an effective plan can go a long way towards that goal.

Robert LilesHealthcare Lawyer represents clients nationwide in Medicare overpayment appeals and other actions taken by RACs and ZPICs, including pre-payment reviews, suspensions and revocation actions initiated by a CMS contractor.  Additionally, Robert counsels clients regarding both OIG’s and CMS’ self-disclosure protocols.  Moreover, he assists doctors, hospices, home health agencies, and skilled nursing facilities with their efforts to develop and implement effective Compliance Plans and Programs. For a free consultation, call Robert today at 1(800) 475-1906.

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