Fraud alert leaves HHAs, DMEs holding the bag

The beleaguered home health and durable medical equipment industries have taken yet another hit with the release of the OIG’s latest special fraud alert. Some experts claim that the alert, ostensibly meant to warn physicians away from the practice of rubber-stamping certifications of medical necessity, actually is designed to chill physicians’ relationships with HHAs and DME suppliers.

"This is phrased for physicians, but it’s really aimed at DME suppliers and home health agencies," says Marty Gaynes, an attorney at Schmeltzer Aptaker Sheppard in Washington, DC.

In the fraud alert, HHS Inspector General June Gibbs warns that "physician laxity in reviewing and completing certifications of medical necessity is a problem that can contribute to fraudulent and abusive practices by unscrupulous suppliers and home health providers."

Receiving benefits for giving false certifications can be prosecuted as a kickback, while even doctors who don’t receive any benefits from the service — who provide it, say, as a favor for an elderly patient — are still liable if they knew or should have known that they were signing false or misleading certifications, says OIG. However, the agency does acknowledge that certification caused by "mistake, simple negligence, or inadvertence will not result in personal liability."

Reading between the lines reveals ominous signs for HHAs and DME firms, Gaynes says. In particular, the alert notes that providers are liable not just for actions they made knowingly, but also for acting recklessly. For many providers, that reckless standard of proof means "that if the government wants to make a case, it won’t be hard to do it," says Gaynes. For example, if a nursing home orders huge amounts of medical equipment, a DME supplier could be liable because it didn’t check that a physician ordered the items.

While the alert speaks solely in terms doctors being tricked or bribed by dishonest HHAs and DME companies, it doesn’t address such situations as a physician’s office that has an employee sign plans of care because the doctor doesn’t want to be bothered, says Bill Dombi, vice-president for law at the National Association for Home Care in Washington, DC. That leaves the HHA holding the bag when it submits the claim. Nor does OIG remind physicians that they have a duty to prescribe appropriate care, even though some doctors are now afraid to refer patients for home health services, Dombi says. "I look at it as an effort to chill relations between doctors and HHAs and DMEs," he adds.

The only recourse for home health and DME companies is greater care and education, experts agree. DME suppliers need to check, for example, that supplies ordered by nursing homes actually match those ordered by doctors, recommends Gaynes. Home health agencies should also try to educate physicians on what qualifies for homebound status, for example, says Denise Bonn at Schmeltzer Aptaker Sheppard. But they also must be careful that educating doctors doesn’t lead to accusations that they’re soliciting patients, Bonn adds.

One way that home health agencies can take advantage of the fraud alert is to show it to doctors and explain why the agencies need their help in staying in compliance, Dombi says.