OIG issues draft guidance for hospice compliance program

By MATTHEW HAY

HHBR Washington Correspondent

WASHINGTON – The Department of Health and Human Services’ (HHS) Office of Inspector General (OIG) issued draft guidance last week "to help hospice providers design effective voluntary compliance programs to prevent fraud, waste, and abuse in government health programs, including Medicare and Medicaid." While all OIG compliance programs are optional, they nevertheless put healthcare providers on notice about potential violations, and the list of guidelines handed to hospice providers is a long one (see box, p. 6).

"The most important aspect of our prevention efforts is the development of voluntary compliance guidance that will help the healthcare industry understand the government’s expectations for a well-run program," said Inspector General June Gibbs Brown. "Compliance efforts should focus on establishing a culture within a hospice that promotes the prevention, detection, and resolution of instances of conduct that don’t conform with the law, regulatory requirements, or a provider’s internal standards and policies," Brown added. "Over time, an effective compliance program should become part of the fabric of a hospice’s routine operations."

The draft guidance identifies specific compliance risk areas for hospice providers, such as admitting patients to hospice care who are not terminally ill, under-utilization of services, improper arrangements with nursing homes, and high pressure marketing of hospice care to ineligible beneficiaries.

Similar to other guidance already issued by the OIG for clinical laboratories, hospitals, home health agencies, third-party medical billing companies, and durable medical equipment (DME) suppliers, the draft hospice guidance is based on the following seven elements: implementation of written policies, procedures, and standards of conduct; designation of a compliance officer; development of training and education programs; creation of a hotline or other measures for receiving complaints and procedures for protecting callers from retaliation; performance of internal audits to monitor compliance; enforcement of standards through well-publicized disciplinary directives; and prompt corrective action of detected offenses.

The draft hospice guidance also includes information on how to assess the effectiveness of a compliance program. The government views the existence of a compliance program as a mitigating factor in fraud and abuse cases only if the compliance program is effective.

"Documentation is key to demonstrating the effectiveness of a provider’s compliance program," warned the OIG. That includes documentation for audit results, hotline calls and their resolution, due diligence efforts of business transactions, employee training, disciplinary actions, and distribution of policies and procedures. "The documented practice of refunding overpayments and self-disclosing incidents of non-compliance with federal healthcare program requirements can also provide evidence of an effective compliance program," added the OIG. Here are some of the "special areas of OIG concern" included in the draft compliance program for hospice:

• Uninformed consent to elect the Medicare hospice benefit;

• Discriminatory admission;

• Admitting patients to hospice who are not terminally ill;

• Arrangement with another healthcare provider who a hospice knows is submitting claims for services already covered by the Medicare hospice benefit;

• Under-utilization;

• Falsified medical records or plans of care;

• Untimely and/or forged physician certifications on plans of care;

• Inadequate or incomplete services rendered by the Interdisciplinary Group;

• Insufficient oversight of patients receiving more than six consecutive months of hospice care;

• Hospice incentives to actual or potential referral sources (e.g., physicians, nursing homes, hospitals, patients, etc.) that may violate the anti-kickback statute or other similar federal or state statutes or regulations, including improper arrangements with nursing homes;

• Overlap in the services that a nursing home provides, which results in insufficient care provided by a hospice to a nursing home resident;

• Improper relinquishment of core services and professional management responsibilities to nursing homes, volunteers, and privately-paid professionals;

• Providing hospice services in a nursing home before a written agreement has been finalized, if required;

• Billing for a higher level of services than was necessary;

• Knowingly billing for inadequate or substandard care;

• Inadequate justification in the medical record when a patient revokes the Medicare hospice benefit;

• Billing for hospice care provided by unqualified or unlicensed clinical personnel;

• False dating of amendments to medical records;

• High pressure marketing of hospice care to ineligible beneficiaries;

• Improper patient solicitation activities, such as "patient charting;"

• Inadequate management and oversight of subcontracted services, which results in improper billing; and

• Sales commissions based upon length of stay.