Operation Restore Trust: Coming to your backyard soon

The rare few will come away unscathed

(Editor’s note: This is part one of a two-part series in which Home Infusion Therapy Management takes a look at Operation Restore Trust (ORT). This month, HITM focuses on ORT’s actions thus far, while next month’s issue will explain the origins of ORT and its future.)

You’ve heard industry horror stories regarding the Health Care Financing Administration’s (HCFA) ORT. Yet the government trumpets ORT’s widespread success: 74 criminal convictions and 59 civil actions attributable to the program and a return of $23 for every $1 spent. (For information on how to protect yourself, see story, p. 116.)

ORT, the government’s aggressive plan to catch fraud and abuse in home health care, durable medical equipment, and nursing homes, initially hit agencies in five states: California, Florida, Illinois, New York, and Texas. HCFA recently announced that ORT will invade 12 additional states: Arizona, Colorado, Georgia, Louisiana, Massachusetts, Missouri, New Jersey, Ohio, Pennsylvania, Tennessee, Virginia, and Washington. However, the efforts — and results — have varied from state to state.

Ann B. Howard, the executive director of the American Federation of Home Health Agencies (AFHHA) in Silver Spring, MD, says member agencies have reported three distinct survey methods used by ORT investigators you should be aware of:

1. The California model.

This model seemingly hit agencies hardest and spurred the initial outrage.

"The model they used in California was to review home health agencies for compliance with conditions of participation," says Howard. "Agencies two months previously had been given a clean bill of health by state surveyors, but when the state surveyors had HCFA sitting next to them, they decertified the agency."

"We’ve had a different kind of ORT survey in California," agrees Nancy Paulson, MSN, BSN, PHN, president of Home Care Consulting Services in Northridge, CA. "Our regional office has used the conditions of participation as a basis for suggesting that an agency was fraudulent and abusive. I don’t know that they’re doing that in other parts of the country."

30 agencies unacceptable

Nearly 30 home health agencies were found to not be in compliance with the program and were shut down. Some cried discrimination.

"Of those home health agencies that were shut down in California, there was a very high preponderance of minority-owned, women-owned, and immigrant-owned firms," says Howard. And the AFHHA isn’t the only one who saw such a trend.

"Twenty-two were put out of business, and all but one of those that I’m aware of were minority- and/or immigrant-owned businesses," notes Paulson.

HCFA denies the claim.

"It’s purely coincidental," Linda Ruiz, the director of the program integrity group for HCFA, tells HITM. "Providers were selected for visits based on utilization patterns and not by any other reason. Is there a coincidence that people with unusual utilization patterns turned out to have a certain kind of owner? I don’t know what the answer is, but that isn’t the reason we looked."

The scariest part of California’s surveys, says Paulson, is that the HCFA Regional Office refused to listen to the multiple complaints about the conduct of the surveyors and the inaccuracies of their interpretations of the conditions of participation.

"The surveyors didn’t have to see a trend," she says. "One occurrence and you’re out of compliance with the standard. If one nurse didn’t do a home health aide supervisory visit in two weeks — they did it in 16 days instead — they were out of compliance with the standard."

2. The Texas/Tennessee model.

In California, surveys looked at all aspects of an agency’s operations as they applied to the conditions of participation, Paulson says. In the Texas-Tennessee model, the approach was quite different.

"Surveyors would enter a home health agency [unannounced] and pull files on individual beneficiaries," notes Howard, who says the usual number of files pulled was 15, regardless of the number of Medicare patients being cared for by the agency.

HCFA notes that such visits are well within its jurisdiction of statutory authority for surveying and certifying agencies.

"What you’re saying is we come in unannounced, and that’s precisely what we do," says Ruiz. "We have the authority to do it, and in fact, there is a recent law that created a civil monetary penalty for someone releasing information about when we’re going to arrive."

While Ruiz says she sympathizes with the inconvenience of a surprise visit from a surveyor demanding patient files, she says other methods are simply unproductive.

"What we found when we used to give people notice is they picked and chose ahead of time what they would give us," she says. "Sometimes they created information. We’re trying to avoid giving them the opportunity to cull material that might be negative or create material that might be positive."

AFHHA reports that surveyors copied files and left the agency, only to visit patients whose files were copied. The agency would not hear from HCFA until weeks or months later in the form of a letter.

Most agencies were found to have been reimbursed for visits that should have been denied. The letter would then inform the agency how many visits of those reviewed should have been denied. That percentage of denied visits vs. visits reviewed was then used to determine how many of the agency’s total visits for the year likely should have been denied, thus coming up with a total fine. The letter would request that the agency sign the letter, agreeing to pay the fine and waiving its rights to appeal.

3. The Illinois model.

A reported 95% of Illinois agencies surveyed were operating within the law, a far cry from ORT findings in other states. In addition to the routine annual survey, surveyors also conducted hundreds of home visits with just a handful being found not to be homebound.

"In Illinois, state and HCFA officials said it was an educational project and found the providers were doing a pretty good job," says Howard. However, the findings were a bit strange when compared to results in other states. "I don’t think people in Illinois are any more virtuous than people in other states."

HCFA says that is exactly the case, at least when it comes to fraud and abuse. It claims that the same protocols and procedures were used for each state, and varying results should be expected.

"You are bound to see differences from region to region and state to state," says Ruiz. "It’s a little bit of an unusual finding, but it’s not surprising, and I really don’t think there’s a problem. I certainly would not think it would be based on the way we looked."

Howard says that in the California and Texas-Tennessee models, there are blatant problems. First, there is a lack of general information regarding ORT.

"What on earth gets you one of these investigations?" asks Howard. "What are your rights? We have a real problem that we don’t know what the protocols, policies, and procedures are."

Selection process only partially revealed

HCFA says that providing information on how agencies are selected would defeat the purpose of the surprise nature of the surveys. However, Ruiz did tell HITM that numerous factors come into play.

"I don’t want to give too many specifics because we’re not looking to give people ways to avoid being looked at," she says. "Generally, we’re looking at a wide range of factors, and the primary one would be a number of different patterns of utilization – not just overall dollars or utilization – and making some decisions about things that look unusual."

Facilities may be selected entirely at random, particularly those that have not undergone a survey in quite some time. And there is also information "that could come from a number of different sources . . . that suggests there may be some problems." There are a number of different sources HCFA gets such information from — sources including the hotline number it established specifically for that purpose.

Howard’s second point of concern is the seeming lack of recourse agencies have when being shut down or fined.

"I’m not saying that an agency that is not in compliance with 10 conditions of participation should not be put out of business," says Howard. "Maybe they should, maybe they shouldn’t. But there needs to be a collaborative process whereby agencies can explain what’s going on in each particular case. We don’t believe there should be a decertification of any provider or [that ORT should] take back money from the agency before they’ve had the chance to exercise their appeal rights."

To try to acquire such information, AFHHA has filed two Freedom of Information Act requests and submitted a third brief list of 25 to 30 questions requiring just yes or no answers. No answers have been provided to date.

But Ruiz says there should be no question as to what an agency’s appeals process is.

"They should know that," she says. "The appeal rights are set out in our 42 CFR in their appeal rights for payment decisions. They get payment decisions all the time and take advantage of those tools, and this is not any different."