Feds widen Medicare fraud probe, and hospice is on the list of targets
Investigative techniques used in first push will be continued
In a stepped-up effort to go after Medicare reimbursement fraud, U.S. Department of Health and Human Services (HHS) Secretary Donna Shalala announced in May that Operation Restore Trust (ORT) has entered a "new and expanded phase" and hospice is on the list of targets.
"I think that the four areas that we were looking at previously nursing homes, DME [durable medical equipment], home health, and hospice will continue to be looked at, along with whatever else they’re going to expand into," says Judy Holtz, public relations manager in the Office of the Inspector General (OIG).
That message is echoed by Victor Zonana, OIG deputy assistant secretary for public affairs for media, who says investigation of hospice will continue. "We’re just going to change the way we explain it."
Meanwhile, a source close to the investigation tells Hospice Management Advisor it is possible that criminal charges might be brought against hospices investigated during the first round of ORT reviews last year.
Over the next two years, ORT investigators will move into Arizona, Colorado, Georgia, Louisiana, Massachusetts, Missouri, New Jersey, Ohio, Pennsylvania, Tennessee, Virginia, and Washington. Eventually, the investigative techniques developed through ORT will be applied in all 50 states, HHS officials say.
Meanwhile, in a case of mixed signals, hospice industry leaders say they’ve been told the investigative pressure is off regarding hospice long-stay patients. That speculation was fueled by the May 6 Wall Street Journal article, in which Shalala conceded, "We got killed on the hospice story."
New anti-fraud and abuse targets
Still, precise implications of ORT’s new push remain unclear for hospice, because it will include "several new specific anti-fraud and abuse targets" as it moves forward.
OIG auditors last year surveyed a dozen hospice programs in the five biggest Medicare states and then released widely publicized reports claiming that clinical records for many of these programs’ long-stay patients did not justify a terminal prognosis of six months or less and thus the patients were incorrectly enrolled on the Medicare benefit and the hospices owed the government millions of dollars.
Hospice leaders responded that the government failed to reveal any guidelines or basis, other than a difference of medical opinion, for its judgments. OIG’s second-guessing of the hospices’ and attending physicians’ prognoses was especially problematic given plummeting lengths of stay throughout the hospice industry. As Shalala’s comment in the Wall Street Journal acknowledges, much of the mass media coverage of this issue has questioned the appropriateness of the government’s hunt for hospice patients not sufficiently close to death’s door.
Seven of the OIG’s audit reports on hospices are still unreleased, and no effort has been made yet by Medicare fiscal intermediaries to recoup money the OIG claims is owed the government by the five hospices in Florida, Texas, and California whose reports are public. The Arlington, VA- based National Hospice Organization (NHO) is working with the Health Care Financing Administration and the fiscal intermediaries’ medical directors to adopt its Medical Guidelines for Determining Prognosis in Selected Non-Cancer Diagnoses for use in future medical review.
Nursing home benefit report expected soon
A second major issue arising out of ORT, which questions the provision of hospice care to patients residing in nursing homes (see related story, p. 63), seems to have quieted down for now. A widely discussed ORT report on hospice care in the nursing home setting, expected to be released in June, is said to contain evidence of more seriously questionable and even abusive practices by some hospices. The report could be a black eye for the entire hospice industry. OIG also is concerned about underlying "vulnerabilities" in the complex payment mechanism for hospice patients in the nursing home.
But it now appears that the Clinton Administration will not be pushing, as it proposed in March, for elimination of the nursing home benefit in its 1997 budget proposals, NHO President John J. Mahoney reports. "It’s premature to say action on the nursing home benefit is dead for this year, but [based on] our discussions with the administration it is unlikely they will move forward with an untested, unresearched sort of fix," he says. Hospice advocates had argued that fixing vulnerabilities in the benefit will require more time and better data, although the issue clearly remains on the White House’s agenda for future action.
An argument for stonger counter measures
Some hospice leaders, riled by what they saw as the government’s heavy-handed tactics, have been calling for a more confrontational response to the government than NHO has taken. A lightning rod for this view was a keynote address by Missoula, MT, hospice physician Ira Byock, MD, at NHO’s Conference on Clinical Hospice Care/Palliative Medicine in Miami in March.
Byock’s comments took form in a resolution submitted to NHO in late April by the Ohio Hospice Organization (OHO) for consideration by NHO’s membership at its May management conference in Washington, DC. OHO called for a national public relations campaign aimed at restoring the public’s faith in hospice, creation of voluntary certification standards for high-quality hospice care, and a financial and legal defense fund for hospices penalized by regulators.
NHO’s board of directors declined to submit the resolution to its membership but promised a thorough and open discussion of the underlying issues at the organization’s annual business meeting at the management conference. "In this case, the board felt it was unnecessary, because there would be ample opportunities to discuss the opportunities, and events had overtaken some of the concerns," Mahoney explains.
"It’s a funny situation," Byock adds. "We all perceive the same thing, which is that hospice is imperiled. The discipline of hospice desperately needs our associations to advocate not for our interest but for the interest of the people we seek to serve."
Although it would be dangerous to overinterpret Shalala’s comments in the Wall Street Journal as a signal of government direction, Mahoney says, "for our purposes, it’s a great quote. And for all those people criticizing NHO for not being adversarial enough, it suggests that our way of handling this issue has been quite successful being as straightforward and articulate as possible in where we disagreed with the government. HHS got killed’ in the press on this thing, not because our PR machine is better than the government’s, but because they were wrong on the issue."
The long stay patient controversy appears to be largely over, Mahoney suggests, because the concerns raised by ORT are now out in the open and are being addressed by NHO and hospice representatives. But he adds, "there’s still a lot of work yet to be done."
Some hospices still face audits
A few hospices still have ORT audits hanging over their heads, and it is important to resolve those, Mahoney adds. "If the government tries to recoup money from them, action on other levels may be warranted, as we discussed last year. But at this point, we don’t need to establish a defense fund. That should be our last step, not our first."
Although hospice long-stay patients seem to be out of the investigative firing line, home care is not and the application to hospice is not yet clear. A $3.5 million "wedge project" in 14 states should send a chill through the home care industry. It involves imposing pay backs on home health providers. The proportions owed will be determined by review of a handful of cases, and no appeal will be allowed.
The National Association of Home Care and Hospice Association of America in April launched its own campaign, "Setting the Record Straight: An Industry Response to Fraud and Abuse."
However, the media kit for this campaign mainly emphasizes home health care, where the battles over ORT are said by some home care participants, particularly in Southern California, to be more adversarial than what hospices have faced.
Need for an aggressive stand
"One other issue that we will have to deal with is that overall, there’s been some erosion of hospice’s good name through this whole process, or at least people are asking questions about hospice," Mahoney observes.
"Some physicians may be concerned about whether referring patients would put the hospice or themselves in jeopardy with the government. We need to take a very aggressive stand at the national, state, and local level to address those concerns," he says.
"Some hospices have admitted to me that when focused medical review came along, they discharged a lot of patients, some of whom they should have fought for. And they’re now reaping the results of that decision in the reluctance of physicians to refer," Mahoney explains.
"Hospices have to step up on a local basis, talk to physicians, and show their willingness to fight for those patients. That’s where our guidelines on prognosis can be helpful. We didn’t develop the guidelines to keep people out of hospice but to get people in, and they should be used that way."
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