LegalEase: Modifications to fraud and abuse compliance plans

By Elizabeth E. Hogue, Esq.
Burtonsville, MD

As many providers know, the Office of the Inspector General (OIG) of the U.S. Depart-ment of Health and Human Services (HHS) is the primary enforcer of fraud and abuse prohibitions. As part of its 2002 work plan, the OIG intends to review agencies’ compliance efforts under the prospective payment system (PPS). Depending upon the results of this review, additional enforcement action may be initiated.

Agencies that do not yet have fraud and abuse compliance plans should proceed to implement a plan as soon as possible. Agencies that previously implemented plans should review them to make certain that they reflect potential areas of fraudulent and abusive conduct under the PPS reimbursement system.

Specifically, agency compliance plans should now target these additional areas to reflect PPS:

  • Classification of patients in the appropriate home health resource group.
  • Modifying items on Outcomes and Assessment Information Set to obtain higher reimbursement rates for patients.
  • Inaccurate coding.
  • Discharging patients before plans-of-care goals have been met in order to increase agencies’ profits.
  • Cutting services without physicians’ orders.
  • Performing more than 10 therapy visits of medical necessity or appropriateness in order to obtain a higher reimbursement rate.
  • Providing more than four visits to patients in order to obtain a rate of reimbursement that is higher than a low utilization payment adjustment.
  • Giving beneficiaries misinformation about what Medicare covers in order to reduce utilization and/or as a basis for refusing medically necessary services.

Although data regarding PPS still should be characterized as anecdotal at this time, it appears that agencies are experiencing considerable financial success under this system of reimbursement.

Profitability certainly is an appropriate goal under the PPS system. But agencies also must remember that fraud and abuse enforcement has not been fully implemented yet under the PPS system. Without properly maintained compliance plans that reflect PPS, agencies still are vulnerable to financial loss based on fraud and abuse enforcement activities. In short, agencies should be using some of the profits they realize from the PPS program to develop or shore up compliance activities. Compliance plans that reflect PPS reimbursement no longer are a luxury that agencies can ignore based upon inadequate financial resources. They are a necessity that agencies ignore at their risk.

[A complete list of Elizabeth Hogue’s publications is available by contacting: Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Telephone: (301) 421-0143. Fax: (301) 421-1699. E-mail:]


In the Hospital Home Health, August 2002, cover story, "Higher risk of medication errors for seniors: Home health bigger challenge," the lead investigator of the medication research project described in the article was Wayne Ray, PhD, of Vanderbilt University in Nashville, TN. Dennee Frey, PharmD, was a co-investigator and project director of the Los Angeles site. The project was funded by the John A. Hartford Foundation in New York City.