Michael Cook Moderating a panel of State Medicaid Directors and Deputies

Michael Cook will be moderating a panel of State Medicaid Directors and Deputies on “The Future of the Medicaid Program in Long Term Care – A Panel of State Government Experts” at the American Health Lawyers Symposium on Long Term Care.  The Symposium will be held in Phoenix, Arizona from February 27 – March 1, 2019, and in addition to Michael, the panel will include the Directors of the Medicaid program from Virginia, Washington state and Arizona.

My Weekend Volunteering at the Wise County Free Clinic

On the weekend of July 20 – 22, I joined a number of people from the Virginia Department of Medical Assistance Services (“DMAS”) in traveling to Wise County Virginia to volunteer for the annual free clinic that is offered in that County.  Our group was led by the Director of DMAS, Jennifer Lee, MD, who is trained as and ER physician.  As background, DMAS is the State agency that administers the Medicaid program in Virginia, and I was appointed several years ago by Governor McAuliffe to the Board that advises DMAS.

The Wise County free clinic offers a once a year opportunity for people in Wise and surrounding counties and states to obtain free medical, dental, vision care, PT and radiology, as well as to receive free food and clothing.  The clinic is held outside in a Fair Ground, although certain dental services, such as dentures, were provided at another proximate offsite location, and resembles what I would imagine a MASH unit, to look like.

A significant number of dentists and dental students and medical and medical students were perhaps the most important volunteers.  In the past, Ralph Northam, Virginia’s current Governor and a pediatric neurologist, has also volunteered and this year visited clinic.  The remainder of us volunteered in such capacities as “runners” – individuals who make sure that patients are appropriately moved through the process and also to assist in delivering the free food to patients who are awaiting services and do not wish to lose their place in the cue, staff to make corrective lenses and fit them into optical frames that are offered on that date, preparation and delivery of snack and meals to people at the clinic and volunteers, and frankly, anything else that the clinic needs.

As a volunteer, I had the opportunity, not only to assist, but also to meet a number of people who were having multiple dental and medical needs attended.  These people by and large had many needs but also a stoicism and gratitude for the assistance that they were receiving that was both heart-warming and tragic.  I cannot tell you the number of people who I escorted to the dental tent who were facing the need to extract all of their remaining teeth.  It is a tragedy that a country such as ours should never allow to occur.

There is also silver lining here.  The Virginia legislature recently voted to expand the Medicaid program effective January 1, 2019.  Virginia’s Medicaid program does not cover adult dental care, and many medical needs are related to the lack of adequate dental care.  However, there is hope that the expansion will enable a number of folks who have needed to rely on the Wise County free clinic, and thus avoid waiting at least a year (and sometimes many years since the clinic cannot serve everyone who presents), to receive medical care on a regular basis throughout the year.

The importance of the expansion to these folks is best demonstrated by the fact that as part of service that weekend, the DMAS contingent also offered outreach to alert the attendees of the advent of the expansion on January 1.  The receptiveness of the patients can only be described as overwhelming.

I was privileged to join a group of committed individuals from DMAS who gave up their weekend and traveled at their own expense to assist.  I was even more privileged to be able participate and assist in the delivery of care to so many needy folks.  I can only hope that at some point in my life time, this becomes obsolete and that routine medical and dental care becomes accessible for everyone.

Michael Cook is a Partner and Co-chair of the Health Care Group at Liles Parker PLLC.  Mr. Cook has extensive experience in representing providers and suppliers of all types, including home and personal, and home health, agencies in regulatory, compliance, policy, and business matters throughout the country.  Mr. Cook also serves on the Board of the agency that advises Virginia’s Medicaid program. Anyone interested in discussing the material presented in this article should contact Michael Cook at 202-298-8750 or mcook@lilesparker.com

CMS has Confirmed the Coverage of Personal Care Services by Medicare Advantage Plans Starting 2019.

(June 26, 2018):  The coverage of personal care services by Medicare has been advocated by advocacy groups for many years.  As we reported last April, the Centers for Medicare and Medicaid Services (CMS) announced in its Final Call Letter for bids from plans that participate in the Medicare Advantage program (MA) for 2019.  In that Bid Letter, CMS announced that MA plans would be permitted to cover as supplemental benefits, certain types of health-related services even if the primary purpose of those services is daily maintenance.  Previously, CMS had considered an item or service to be primarily health related “…if the primary purpose of the service is to prevent, cure or diminish an illness or injury,” but not if the primary purpose is simply daily maintenance. As I noted in that article, that will change beginning in 2019.

I.  CMS Has Confirmed the Coverage of Personal Care Services by Medicare Advantage Plans in 2019:

At the time that I wrote that article, we posited that it was likely, but not made clear, that plans would be able to cover personal care services under the revised standards for supplemental benefits.  However, that appears to have now been confirmed that the new definition covers these services. In a speech that she made in May of this year at a conference presented at CMS Headquarters, Seema Verma, the Administrator of CMS stated:

“For the first time ever, Medicare Advantage beneficiaries can access significant new flexibility for additional benefits that can help them live healthier, more independent lives. [MA] plans can offer benefits [beginning in 2019] that compensate for physical impairments, diminish the impact of injuries or health conditions, or reduced avoidable emergency room utilization.  This means Medicare Advantage beneficiaries will be provided adult day care services, respite care for caregivers, and in-home assistance with activities like bathing and managing medications.  Additionally, Medicare Advantage beneficiaries will have access to safety devices to better prevent injury in the home ….”[1]

Also at the conference, two CMS employees made a presentation the slide deck for which listed as examples of supplemental benefits that plans will now be able to cover in 2019, “Adult Day Care Services, Home-Based Palliative Care, In-Home Support Services, Transportation for Non-Emergent Medical Services, and Home & Bathroom Safety Devices and Modifications.”  That same slide deck describes the type of In-Home Support Services that MA plans will be able to cover as:

“In-home support services performed by a personal care attendant or by another individual that is providing these services consistent with state requirements in order to assist individuals with disabilities and/or medical conditions with performing ADLs and IADLs as necessary to compensate for physical impairments, ameliorate the functional/psychological impact of or health conditions, or reduce avoidable emergency and healthcare utilization.  Services must be performed by individuals licensed by the state to provide personal care services, or in a manner that is otherwise consistent with state requirements.[2]

Thus, it is clear that MA plans will now be authorized to cover personal care services in the home beginning in January 2019, if they so choose.  The slide show presentation also specifies as requirements that the services: (a) must be medically appropriate; (b) must focus directly on an enrollee’s health care needs; (c) must be recommended by a physician or licensed medical professional as part of a care plan if not directly provided by one; must not be used primarily for comfort, general use, or other non-medical reasons; and (d) must not include items or services used to induce enrollment.[3]

II. NEXT STEPS FOR YOUR AGENCY:

Agencies and other providers that wish to provide these services to plan beneficiaries in 2019 should already have been speaking with the appropriate people at the MA plans that provide coverage in their service areas about covering these services in 2019, and should be speaking with the plans regarding their interest and requirements for becoming participating providers of these services.  If the plans are not covering these services in 2019, these agencies should be developing and presenting data that demonstrate cost-effectiveness of these programs, e.g.in preventing or reducing ER and hospital utilization, in order to convince the plans to cover these services in 2020 and thereafter.

Additionally, as I pointed out in our April article on the topic, the Bipartisan Budget Act of 2018 expands even further the supplemental benefits that MA plans may provide in 2020 and thereafter, to cover services that address certain social determinants that we now are discovering to be related to health.  Agencies should be tracking the progress of implementation of this provision as CMS begins to provide additional guidance on implementation, and also should begin speaking with their MA plans and developing data that support coverage of certain of these services that they wish to provide.

Finally, MA plans will expect providers of home and personal care that wish to be participating providers to have developed and implemented an effective compliance plan.  This will be especially critical given some of the compliance issues that have arisen in the past, of which they almost certainly will be aware.  In this regard, MA plans will almost certainly require that providers have a system for tracking their aides, which will also be required under state Medicaid programs in the future.

III. CONCLUSION:

This article should be read in conjunction with the April article which goes into a bit more depth on the issues in the prior section.  CMS has now confirmed that MA plans will be afforded the opportunity to cover home and personal care services beginning in 2019.  Michael Cook and other Liles Parker attorneys have extensive experience in assisting clients throughout the health care industry, including home and personal care and home health agencies, in responding to new government and payor initiatives, and in establishing and maintaining an effective compliance program.  Anyone seeking a copy of either the speech by Seema Verma or the slide deck should contact Michael at the contact information provided, below.

Michael Cook is a Partner and Co-chair of the Health Care Group at Liles Parker PLLC.  Mr. Cook has extensive experience in representing providers and suppliers of all types, including home and personal, and home health, agencies in regulatory, compliance, policy, and business matters throughout the country.  Mr. Cook also serves on the Board of the agency that advises Virginia’s Medicaid program. Anyone interested in discussing the material presented in this article should contact Michael Cook at 202-298-8750 or mcook@lilesparker.com.  

[1] Speech: Remarks by Administrator Seema Verma at the Medicare Advantage and Prescription Drug Plan Spring Conference (As prepared for delivery – May 9, 2018).

[2] Slide deck, Medicare Advantage Benefit Flexibility (Supplemental Benefits and Uniformity) presented by Heather Kilbourne, Division of Policy, Analysis, and Planning, Medicare Drug and Health Plan Contract Administration Group, Center for Medicare, CMS and Brandy Alston, Division of Policy, Analysis, and Planning, Medicare Drug and Health Plan Contract Administration Group, Center for Medicare, CMS.

[3] Id.  These requirements should not present a burden to home care agencies that participate in Medicaid given that many, if not all, states place similar requirements on personal or home care providers under that program.

Medicare Advantage Plans May Soon Offer Personal Care Services

(April 10, 2018):  On April 2, the Centers for Medicare and Medicaid Services (CMS) announced an expansion of the benefits that private health plans may offer Medicare beneficiaries under the Medicare Advantage (MA) program in 2019.  In its Final Call Letter for bids from plans that participate in the MA program (“MA plans”) for 2019, CMS expanded the services that plans would be permitted to offer in 2019 as supplemental health related benefits, even if the primary purpose of those benefits includes daily maintenance.  While these benefits are not required to be included in MA plans, plans are provided the latitude to include them if they choose and may very well change the reimbursement landscape for personal care agencies around the country.

I.  Background:

As background, MA Plans are permitted to offer certain benefits that are not included as part of the Medicare fee for service, or Original Medicare, benefits, if those benefits are, among other things, primarily health related.  As discussed in the Final Call Letter, CMS considers an item or service to be primarily health related “…if the primary purpose of the item or service is to prevent, cure, or diminish an illness or injury.”  However, CMS previously has not considered a service to fit within this category if the primary purpose is daily maintenance.

II.  Expansion of Coverage for Personal Care Services:

In the Final Call Letter, CMS recognizes that there is value in certain services that “diminish the impact of injuries or health related conditions and reduce avoidable emergency and health care utilization.”  The Letter does not specify the benefits that would fall under this rubric, but includes as an example, fall prevention devices for individuals at risk high risk for falling and similar products that protect against injury resulting from falls.  The Letter further states that services that diminish the impact of injuries and health conditions and reduce avoidable utilization can be included as supplemental benefits under certain circumstances, “even if a significant purpose of the item is daily maintenance.”

As further described in the Letter, “[u]nder the new interpretation, in order … to be ‘primarily health related’ … [an item] must diagnose, prevent, or treat an illness or injury, compensate for physical impairments, act to ameliorate the functional/psychosocial impact of injuries or health conditions, or reduce avoidable emergency and healthcare utilization.”  The intent is to provide plans with the flexibility to offer supplemental benefits that can enhance quality of life and improve health outcomes.

The service must, however, be medically appropriate, recommended by a licensed provider as part of a plan of care, and cannot include items or services that are solely to induce enrollment.  The Letter also indicates that CMS will be issuing more detailed guidance in the future.

As noted, above, while not entirely clear, it is quite possible that MA plans will be permitted to cover personal care services under the revised standards for supplemental benefits.  Indeed, in a press release issued by CMS announcing a draft of the Bid Letter for comment in early February, CMS described the proposal as allowing supplemental benefits to “include services that increase health and improve quality of life, including coverage of non-skilled in-home supports, portable wheel chair ramps and other assistive devices and modifications when patients need them.” (Emphasis supplied.)  While neither the press release accompanying the Final Bid Letter nor the Letter, itself, includes any language specifically referencing these items, the broader language of the Final Letter can certainly be read to permit plans to offer personal care services under certain circumstances.

III.  What Steps Should Your Personal Care Agency Take?

So what can a provider that wishes to offer these services, including personal care services, as part of an MA plan for 2019, do at this point?  First, providers can be watchful for additional guidance from CMS that should be forthcoming.  Second, they can begin to approach the MA plans that cover a significant number of MA subscribers in their service area to discuss both including these items or services as supplemental benefits in the plans’ upcoming bids to CMS for the 2019 year, and to discuss pricing.   In doing so, providers should be prepared with data or other information demonstrating that offering the service will reduce costs without harming patients.  For example, a provider that wished to offer personal home care services would attempt to prepare a cost benefit analysis showing that home visits reduce the incidence for hospital admissions or admissions to skilled nursing facilities. Additionally, if the MA plan is also a provider of Medicaid managed care services, the provider may also include in the analysis the cost/benefit of lowering admissions to the nursing facility long stay side of the equation.  There are other permutations to the analysis, but the key is to begin discussions with the various plans, and to accumulate data that demonstrate both the short term and long-term cost and health benefits of the particular service.

Providers that wish to take advantage of this opportunity should also note that the Bipartisan Budget Act of 2018 expands supplemental benefits for chronically ill enrollees to also encompass benefits that are not primarily health related in certain circumstances beginning in 2020.  This change recognizes the importance of certain social determinants to health status – something that some state Medicaid programs are beginning to recognize as well.  However, this change only affects “chronically ill” beneficiaries and does not begin until 2020, whereas the expanded definition of supplemental benefits in the Bid Letter affects services provided to all MA beneficiaries and begins in 2019.  Additionally, the Final Bid Letter notes that the expanded definition of supplemental benefits in that Letter requires that the benefit address specific illnesses and/or injuries, and reiterates that it will be issuing further guidance on both expansion options in the future.

We would also note that all MA plans are required to have compliance programs in place that meet the seven elements of an effective program.  Under this program, they are also responsible for providing certain training for providers under their programs, as well as for the compliance of those providers.  While Liles Parker attorneys, and in fact, virtually all knowledgeable health care attorneys, have long counseled their clients on the importance of establishing and maintaining effective compliance programs, and while some segments of the industry are required to maintain such programs by law, any entity that wishes to contract with MA plans to provide health care related services almost certainly will be required by the plan to maintain a compliance program.  Thus, any entity that wishes to take advantage of the expanded coverage of services under the Final Bid Letter should be prepared to demonstrate that it has an effective compliance program.

With respect to providers of personal care services, there are a number of areas of vulnerability.  One major such area is ensuring that aides actually perform the services for which a program is billed.  Several years ago, there were a number of investigations and prosecutions where aides were alleged to have colluded with clients to defraud the Medicaid program by failing to provide the service for which the aides were paid, and paying the client a portion of the payments.  There are mechanisms to monitor this type of activity; however, it is a major risk area for home care agencies and should be addressed in any compliance program.

IV.  Conclusion:

In short, the Final Bid Letter for 2019 presents the possibility of expanding the services that certain MA plans will cover, including the possibility of covering personal care services.  However, providers that wish to contract with MA plans for these services should be taking the actions described, above. Liles Parker attorneys have extensive experience in assisting clients throughout the health care industry, including home care and home health, in responding to new government and payor initiatives, including establishing and maintaining an effective compliance program.

Michael Cook, J.D., is a Partner at the firm Liles Parker, Attorneys & Counselors at Law.  Mr. Cook represents nursing home, assisted living, home health and personal care clients in regulatory matters.  Anyone interested in discussing the material discussed in this article should feel free to contact Michael Cook at 202-298-8750 or mcook@lilesparker.com.       

Liles Parker Partner, Michael Cook, Receives Albert Nelson Marquis Lifetime Achievement Award

Liles Parker is  pleased to announce that our Partner an Co-chair of our Health Care Group, Michael Cook, has been awarded the Albert Nelson Marquis Lifetime Achievement Award by Marquis Who’s Who. 

The press release announcing the Award describes Michael as:  “An accomplished listee, [celebrating] many years’ experience in his professional network, and has been noted for his achievements, leadership qualities and the credentials and successes he has accrued in his field.”  The full press release announcing the Award can be accessed at:

http://www.24-7pressrelease.com/press-release/michael-cook-presented-with-the-albert-nelson-marquis-lifetime-achievement-award-by-marquis-whos-who-449930.php

We congratulate Michael on his receipt of this Award. Michael can be reached at mcook@lilesparker.com or 202-298-8750.

Veterans Administration and CMS Announce Partnership to Address Fraud Prevention

(January 25, 2018): On January 23rd, the Veteran Administration (VA) and the Centers for Medicare and Medicaid Services (CMS) announced a “partnership to strengthen prevention of fraud, waste and abuse.”  According to the press release, under this partnership:

“VA plans to capitalize on the advancement in analytics CMS has made by concentrating on its use of advanced technology, statistics and data analytics to improve fraud detection and prevention efforts.  Additionally, in November 2017, VA invited industry experts to provide information on the latest commercial sector tools and techniques to enhance VA’s fraud detection capabilities.  In April, VA will invite these industry experts to demonstrate their capabilities for detecting and preventing fraud, waste, and abuse and recovering improper payments.”

Among other things, we can expect that the VA will begin to employ techniques utilized by CMS such as predictive analytics to identify instances where providers may be exceeding certain benchmarks in procedures, and to adopt techniques utilized by CMS in the provider enrollment process.  The VA may also be looking at outside contractors that also perform functions as  UPICs, ZPICs and RACs.  This, in turn, means that those providers that serve patients covered by the VA should review their compliance programs and billing and claims processing systems to ensure that they cover adequately VA requirements and procedures, and to ensure that they respond adequately to any investigation or threatened payment denials for those patients.

Liles Parker attorneys have significant experience in assisting clients with their compliance programs and in responding to enforcement actions such as audits, payment denials, suspensions and investigations.  Any person seeking additional information in this area should contact Michael Cook at mcook@lilesparker.com or at (202) 298-8750. 

Michael Cook appointed to serve on Virginia’s Medicaid Policy Council

(January 2, 2018):  Congratulations to our very own Michael Cook who has been appointed to serve on the Virginia Medicaid Policy Council for Health and Human Resources. In this role, The Council’s role is to provide recommendations on policy issues involving the programs operated by the Department of Health and Human Resources as part of the transition.

Michael Cook awarded the Marquis Lifetime Achievement Award

(October 3, 2017): Michael Cook has been awarded the Alfred Nelson Marquis Lifetime Achievement Award and inducted into the World Wide Lifetime Achievement by Marquis Who’s Who, based on his professional achievements over the past 40 plus years in the practice of law and policy, which includes appearing in multiple publications of Who’s Who in American Law, Who’s Who in America, Who’s Who in the World, Who’s Who in the East and Who’s Who in Finance and Industry, Who’s Who of Emerging Leaders in America and awards and achievements.  We are proud of Michael’s accomplishments over his career and congratulate him on receiving this prestigious award.

OIG And DOJ Issue Important New Compliance Guidance

(April 14, 2017) Recently, the Office of Inspector General of the United States Department of Health and Human Services (OIG) and the Criminal Division of the Fraud Section at the United States Department of Justice (DOJ) have issued guidance on measuring the effectiveness of corporate compliance programs.  In February, DOJ placed on its website a document entitled “Evaluation of Corporate Compliance Programs.”  That document lists 119 sample questions that DOJ’s Fraud Section has in the past found relevant in its evaluation of the effectiveness of corporate compliance programs for the purpose of deciding whether to prosecute cases, and in recommending sentences for criminal violations.  These questions are separated into eleven (11) topic areas: analysis and remediation of underlying conduct, senior and middle management, autonomy and resources, policies and procedures, risk assessment, training and communication, confidential reporting and investigation, incentives and disciplinary measures, continuous improvement, periodic testing and review, third-party management, and mergers and acquisitions.  While not specifically addressing health care organizations, per se, the guidance is highly relevant to organizations and practices since they are questions that Federal prosecutors will be asking when evaluating compliance programs in any criminal investigation.  The guidance can be reviewed in its entirety at https://www.justice.gov/criminal-fraud/page/file/937501/download.

Even more recently, on March 27 of this year, OIG published a parallel and more inclusive document focused specifically on the health care industry, “Measuring Compliance Program Utilization – A Resource Guide.” The Guide, which is 52 pages in length, sets out a checklist of questions broken down into seven standards based on the standard seven elements of an effective compliance programs, and further broken down into various subcategories under each element.  The guidance is the product of a round table on January 2017 that brought together a group of compliance professionals and staff from OIG “to discuss ways to measure the effectiveness of compliance programs.”  While the guidance is clear that it is not a “one size fits all,” it provides a number of ideas of “what to measure” and “how to measure” these programs, and should be mandatory reading for all compliance officers in organizations, whether a small physician’s office or a large hospital system or health care organization.  The guidance can be accessed at https://oig.hhs.gov/compliance/101/files/HCCA-OIG-Resource-Guide.pdf.

Liles Parker attorneys, and frankly any knowledgeable attorney who specializes in health care, have for many years advised clients that is essential to establish a compliance program that is implemented effectively.  Among other things, an effective compliance program establishes the culture of compliance for an organization in following the law, that should demonstrate an ethos from the top down through every employee and professional.  It also provides management with the opportunity to detect and correct problems and potential issues before they either emerge or become widespread. Many, if not most, whistleblower lawsuits are the result of employees feeling that their concerns, when reported internally, were not investigated.

Moreover, Congress has mandated compliance plans for skilled nursing facilities and the revised requirements of participation require them for both nursing and skilled nursing facilities so that the effectiveness of these programs will become part of the survey process.  And, if an investigation arises, the conversation with enforcement agencies is dramatically different when an organization can demonstrate that it has an effective program as opposed to no program, or one that sits on a shelf.

One of the criteria that OIG has had for determining whether a compliance program is effective is whether the organization measures the effectiveness of its program, itself.  At a minimum, every organization should do this once per year.

Finally, in September 2015, DOJ issued a memorandum entitled “The Individual Accountability for Corporate Wrongdoing.”  Among other things, the memorandum, referred to as the Yates Memo,” instructs prosecutors and investigators to hold highly placed individuals within an organization accountable for the organization’s misconduct.  Prior to the issuance of the Yates memo, those of us involved as defense counsel in investigations were frequently able to obtain releases for individual members of an organization in settlements of civil and administrative investigations.  Since the issuance of the Memo, releases of individuals now occur on only the rarest of occasions.

Conclusion

For all of these reasons, it is imperative that every health care provider establish an effective compliance program and that it periodically measure the effectiveness of that program.  These guidances provide important and helpful information in how to accomplish that result.

Liles Parker attorneys have extensive experience in developing compliance programs, providing compliance guidance, and working with clients in investigations.  Clients having questions related to these issues should contact Michael Cook at (202) 298-8750, mcook@lilesparker.com

Responding to OIG Home Health Audits

(November 23, 2016): The Office of Audit Services, Office of Inspector General (OAS), is in the process of conducting audits of large home health agencies.  These audits are being conducted, in part, because the Centers for Medicare and Medicaid Services (CMS) had determined through the Comprehensive Error Rate Testing Program (CERT) that for 2014, there was greater than a 50% error rate nationally in Medicare claims for home health services.  Additionally, it is our belief that because the advent of alternative payment methodologies is likely to diminish the relevance of the current process for medical necessity audits in the future, home health agencies are likely to experience a spike in audits of Medicare claims in the near future.

I.  Initial Results From Early OIG Home Health Audits:

Irrespective of the motivation behind the audits, the first two audit reports resulted in findings of large error rates with extraordinary recommended refunds of more than $15 million for one agency and more than $8 million for the other.  These results were generated by the application of a statistical extrapolation and a recommendation that the results be applied with an attendant request for refunds, not only for the three-year look-back period, but also for earlier years as a result of the “60 day” repayment rule.  See Medicare Compliance Review of Excellent Home Care Services, LLC, Report No. A-02-14-01005 (OAS, July 2016); Medicare Compliance Review of Home Health VNA for 2011 and 2012, Report No. A-01-13-00518 (August 2016).

As a result, we are aware of several companies that are now undergoing similar types of audits by OAS.  The review of these claims has been subcontracted to Maximus, a Qualified Independent Contractor (“QIC”) with experience in reviewing medical necessity audit determinations.

In the past for claim audits by MACs or ZPICs, clients would frequently submit the medical records without preparing any claim summaries, and instead prepare those summaries for purposes of the appeals process after the initial findings.

Because of the extraordinary refunds that have been recommended by the OAS reports cited, above, coupled with the significant delay in obtaining ALJ hearings after refunds are required, providers that receive notices of these audits may wish to take a more proactive approach to defend the legitimacy of the claims under review, including retaining and working with legal counsel at the beginning stage of this process.

II.  What is OIG Requesting in These Home Health Audits?

Specifically, providers undergoing these audits of which we are aware have been asked to submit the medical records for 100 claims.  For each of these claims, providers should bates label the pages of the claim.  Additionally, they should organize the records so that it is easy to track the various components of the adverse findings of the earlier audit reports, such as face-to-face, nursing, therapy, etc.  Finally, they may wish to consider submitting detailed claim summaries that identify how each of the claims meets the various criteria for coverage and payment, that cite to specific pages of the medical record and that are submitted at the time that the client initially submits the medical record.  Additionally, to the extent that the initial review discloses gaps or ambiguities that can be appropriately and legitimately supplemented or explained, agencies may wish to accomplish that process up front, rather than risking the potential of adverse findings that might not otherwise accurately reflect the claims.  By responding proactively, providers may be able to minimize the likelihood of recommended denials based upon misunderstandings by the reviewers.

III.  Recommendations:

Given the magnitude of the findings and recommendations for refunds in the two audit reports published to date, we strongly recommend that providers who are notified that they are to undergo these audits contact legal counsel familiar with responding to audits at the initial stage, rather than waiting for the initial recommendations or draft audit report. Knowledgeable legal counsel familiar with the audit process and the types of individuals conducting the audit, can  work effectively with the clinical team to present the records to the audit team in a manner that provides an accurate picture of the claim at the beginning stage, and by doing so, potentially minimize or avoid improper adverse findings prior to the issuance of the audit report .

Michael Cook is the co-chair of Liles Parker’s health care group and has more than 35 years of experience representing providers in regulatory matters, including matters of this nature. Before entering private practice, Michael also represented the Federal regulators of the Medicare and Medicaid programs, is a member of the Board of Medical Assistance Services in Virginia, and has advised the campaigns of a number of candidates for state and federal office.  Any entity experiencing an audit of this nature or having questions can contact Michael at (202) 298-8750 or mcook@lilesparker.com.

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