OIG Report Finds Vulnerabilities at HHAs That Could Lead to Fraud

Home health agencies are required to submit to onsite surveys to ensure they are complying with Medicare standards. But a recent report from the U.S. Department of Health & Human Services Office of the Inspector General (HHS OIG) finds that in at least one aspect of the survey HHAs may be skirting their responsibilities.

As part of the study, OIG collected patient lists provided by 28 home health agencies and used by surveyors, and compared them to Medicare claims data to identify missing beneficiaries. The agency also conducted interviews with those survey agencies, accrediting organizations and the Centers for Medicare & Medicaid Services regarding processes for conducting those surveys. The study was conducted in Florida, Texas, California, Illinois and Michigan, where Medicare fraud is more prevalent.

What they found is that some of those patient lists were missing Medicare beneficiaries, allowing them to be excluded from surveyor reviews. They also found that surveyors could not verify that HHA-supplied patient lists were complete at the time of the survey.

“Home health surveyors rely on lists … to select patients for review, which creates a vulnerability because HHAs could conceal fraudulent activity or health and safety violations by omitting patients from those lists. Some HHA-supplied patient lists we reviewed were in fact missing Medicare beneficiaries, although we do not know the reasons for these omissions,†the OIG wrote in its report.

Home health is a hotbed of fraud, waste and abuse. Although schemes vary, the most common involve billing for services that either are not medically necessary or not provided. As recently as Feb. 28, the U.S. Department of Justice announced that the owner and operator of several Miami-area home health agencies was sentenced to 20 years in prison and ordered to repay $66.4 million for his role in a conspiracy to defraud Medicare.

“[Rafael] Arias and his co-conspirators paid illegal bribes and kickbacks to patient recruiters to refer patients to these agencies, and submitted false and fraudulent home health care claims to Medicare for beneficiaries who, in many cases, did not qualify or for whom the services were never provided. In addition, Arias provided checks to other individuals and entities to cash so that Arias and his co-conspirators could obtain fraud proceeds to benefit themselves and further the fraudulent scheme,†according to a DOJ news release.

OIG noted that of the 28 HHA-supplied patient rosters, nine were incomplete, missing one or more Medicare beneficiaries who – according to the claims data to which the lists were compared – were active. Two of the nine patient rosters were missing ten or more beneficiaries, including one that was missing more than 150 (nearly 90 percent) of the HHA’s active beneficiaries!

Excluding these beneficiaries from the roster means they also would have been excluded from consideration for record reviews with home visits. OIG notes that its analysis could not determine why the patients were missing from the lists, but suggested it could be anything from an inadvertent error to intentional. Because surveyors have no way of verifying the lists at the time of the survey, they must rely on information provided to them by the HHA, allowing for the possibility of not only fraudulent activity, but also health and safety violations – much like the fox watching the hen house.

To mitigate these risks, surveyors suggested they be allowed to:

• Monitor HHA staff as they gather and compile patient lists during unannounced surveys to discourage omitting patients
• Be allowed to have direct access to HHAs’ electronic health records so they can compile patient lists

The OIG added its own suggestions:

• Create new Outcome and Assessment Information Set (OASIS) based reports or adapt existing reports for surveyors
• Conduct retrospective reviews using claims data
• Direct surveyors to confirm that patient lists include a subset of active patients

CMS itself suggested that it might consider directing surveyors to interview a randomly selected nurse or aide who is working at a home health agency to obtain information about all patients they are treating. Those patients then could be checked against the HHA-supplied patient list to ensure they are included.

Home health agencies should be advised that their activities are on investigators’ radar for the possibility of fraud and abuse. An alert released by the OIG in 2016 warned that the federal government is stepping up enforcement in this area. The Health Care Offices of Anthony C. Vitale represents clients who are charged with healthcare fraud.  Contact us for additional information at 305-358-4500 or send us an email to info@vitalehealthlaw.com and let’s discuss how we might be able to assist you.