Free services may equal trouble
Free services may equal trouble
By Elizabeth E. Hogue, Esq.
Elizabeth Hogue, Chartered
Burtonsville, MD
Home care providers are understandably concerned about recent changes in Medicare reimbursement that have radically altered the home care landscape. Based upon their overriding commitment to patients, staff may be tempted to take up the slack by providing free or voluntary services to their patients. They may return to patients’ homes in the evenings and on weekends, for example, to provide additional services for which they will not be compensated. Case managers and/or patients and their families may ask for free services in addition to those for which the provider bills the payer source.
Staff who engage in these activities and agencies that allow staff to do so run the risk of the following types of liability:
- It is extremely difficult, if not impossible, for patients to draw distinctions between when staff are acting on behalf of the agency and when they are acting strictly of their own accord. Consequently, if any risks are incurred, even when staff aren’t acting on behalf of agencies, patients and their families are likely to turn to agencies and their insurers and hold them responsible for damage that may have been caused by the actions of staff.
Although agencies can certainly argue that they’re not responsible because staff were acting independently, it’s always time-consuming and expensive to be drawn into a lawsuit, even if the agency is ultimately found not liable.
- To the extent that free or voluntary services are perceived as an inducement to patients to initiate, continue, or reinstate services with a particular agency, home care providers may run the risk of violating Medicare/Medicaid fraud and abuse prohibitions on kickbacks and rebates.
The Office of the Inspector General (OIG) of the Department of Health and Human Services (HHS), a primary source of enforcement activity, has clearly indicated that the provision of free services to beneficiaries may constitute a violation of these prohibitions.
This position may strike some home care professionals as confusing and perhaps contradictory. Since the point of fraud and abuse enforcement is to prevent unnecessary costs, shouldn’t the government welcome the provision of free services to beneficiaries? After all, they are free and how much more money can you save than that?
Savings aside, the government’s point of view is that when services that are free result in additional utilization of services, that constitutes a fraud problem. The government is faced with the question of whether those free services induced beneficiaries to utilize the services paid for by the Medicare program — services which they otherwise would might not have utilized. It’s certainly a tricky question to answer. When this issue is considered in light of the current environment of hypersensitivity to fraud and abuse issues, along with some of the other concerns raised in this article, the best course of action for the providers is undoubtedly to avoid the provision of free services altogether.
- There are professional boundaries that should be established and maintained between nurses, social workers, and therapists and their patients. When practitioners violate these limitations, it calls into question their professionalism. Whenever the standards of professional conduct are violated, practitioners should be concerned about the disciplinary action by state licensure boards that may take the position that the provision of free or voluntary service to home care patients amounts to unprofessional conduct.
In response to these concerns, agencies may wish to develop and implement a policy that prohibits staff from providing free or voluntary services to patients. Although the intentions are certainly the best, the risks are potentially substantial. If agencies elect to adopt such a policy, the legitimate needs of Medicare home care patients should still be met to the fullest degree possible. The good intentions and fine motivations of practitioners must also be acknowledged. But the bottom line is that for all of the above reasons, the provision of free services is problematic in today’s health care environment.
[To receive a copy of Legal Liability, a publication that provides further information regarding these issues, send a check for $25 payable to Elizabeth E. Hogue to 15118 Liberty Grove, Burtonsville, MD 20866.]
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