Hospices and home health agencies (HHA) face specific regulatory and legal issues that require a deep understanding of the industry. The attorneys at Norman Spencer & Associates have that understanding, along with extensive experience in the health care arena. We provide a wide scope of legal services to clients operating hospice and home health agencies.

Our legal team’s acute comprehension of the law, coupled with years of work in the field, provide our clients with the assistance they need to navigate through the complexities of regulatory compliance.

Assistance with Medicaid and Medicare certification, compliance and enrollment are on our list of services, as is compliance with HIPAA, the Office of Inspector General (OIG) and federal and state regulations. We can likewise help hospices and home health agencies (HHA) with Medicare and Medicaid audits and appeals, such as those from the Office of Medicaid Inspector General
(OMIG), the Recovery Audit Contractor (RAC), and the Zone Program Integrity Contractor (ZPIC).

Private payor audits are another area we cover, along with stark and anti-kickback. We can help with licensure issues, compliance programs and policies, and government investigations. The legal team of Norman Spencer & Associates is here to assist with any compliance programs and policies with which your organization needs guidance and support.

Compared to other health care providers, home health agencies have a unique set of legal challenges. Some of those are associated with the Compliance Program for Home Health Agencies, which was issued by the OIG and contains more than 30 risk areas. Abuse and fraud are two issues covered in some of the risk areas, making it essential that
HHA compliance policies and procedures address them.

Billing issues are a major risk area, such as billing for services that were not medically necessary, services not provided or services provided by unlicensed or unqualified staff. Duplicate billing is another risk area, as are stark and kickback violations. Violations in these areas include incentives to physicians, hospitals and other referral sources.

Each HHA is expected to develop its own policies, and those policies must be focused on enforcing applicable federal and state laws governing claim submissions to Medicaid, Medicare and Medicare cost reports. Several major risk areas exist in this arena, all of which can be addressed by attorneys drafting the compliance program.

Compliance programs need to demand that the HHA:

• Only submit claims for services deemed medically necessary and ordered by a physician or other licensed practitioner.
• Establish methods of verifying the homebound status of Medicare beneficiaries, while properly documenting the factors that qualify a patient as homebound.
• Ensure all claims for HHA services are ordered and authorized by a licensed physician, and that claims satisfy the essential need of a qualifying service.
• Have written procedures and policies designed to result in compliance with applicable regulations and laws.
• Create written policies that verify the services provided to assisted living facility residents are appropriate for Medicare and Medicaid reimbursement.
• Have written policies designed to prevent abuse, waste and fraud.

Some of the most critical legal concerns in the HHA industry are the anti-kickback and stark law prohibition against self-referral. Severe consequences can emerge for HHA operators that fail to develop adequate policies that mandate compliance with both statutes and corresponding state laws.

Addressing these concerns may need to go deeper than simply drafting a compliance policy. The Office of Inspector General regularly issues advisory opinions, and rules consistently change. This makes it integral to continuously asses HHA compliance programs to ensure they remain current with the complex and ever-changing slate of state and federal regulations.

Abuse and fraud investigations into home health agencies can occur at the civil or criminal level, and our attorneys represent providers in both. The bulk of issues that trigger these investigations are associated with allegations of abuse and fraud as it relates to billing for services. This often includes billing for services that were not provided, medically unnecessary, or billed incorrectly.

The Office of Medicaid Inspector General continuously targets home health agencies throughout the state of New York for potential abuse and fraud. OMIG audits are prevalent for HHAs, and our legal team has represented a number of clients facing these audits.

OMIG has the authorization to seek administrative and civil enforcement actions against any organization, individual or entity engaging in unacceptable practices within the medical assistance program. This includes abuse, fraud, improper or illegal acts.

In addition to conducting its own audits, OMIG refers suspected cases of fraud for potential criminal prosecution. Protecting your HHA requires paying attention to some of the main issues upon which OMIG audits focus. They are:

• Insufficient or missing documentation regarding visits and hours billed. Any portion of a paid claim that was not documented is disallowed. Missing documentation can arise from failing to include a chart, professional staff failing document the visit, or aides failing to document the hours of service billed.
• Missing or inadequate documentation. This can include a missing order of plan of care, or an inadequate comprehensive assessment or home assessment abstract.
• Billing for services that exceed those ordered. If a home health agency bills for more visits or hours than authorized by medical hours or plan of care, the paid claims for the visits and hours that exceed the order will not be paid.
• Failure to obtain proper signatures within given time frame. Orders and plan of care documentation must be signed by authorized practitioners, and those signatures must be rendered within a required time frame. Medical orders, a change in the plan of care and recertification documentation must signed within 30 days of the onset of care.
• Failure to provide supervision visit of home health aide within the required time frame.
• Failure to perform the required criminal history check on health care workers.
• Failure of home health aides or personal care aides to meet minimum training standards.

Additional billing issues can include:

• Billing Medicaid prior to services being authorized
• Billed for services rendered by another entity or provider
• Billing incorrect codes
• Failure to bill third party or Medicare first