Anti-supplementation is the concept embodied in federal Medicare and Medicaid laws that a provider who accepts a resident whose care is paid for by Medicare or Medicaid may not charge any amount above and beyond what Medicare or Medicaid pays for covered services. This includes not charging more than any permitted copay or deductible for a covered service. Note that this does not preclude a provider from charging additional amounts for services not covered by Medicaid or Medicare which a resident or their responsible party has requested.
Violation of the anti-supplementation laws can result in false claims and related criminal laws and violations of OBRA residents’ rights requirements. These prohibitions also extend to payments for covered services above and beyond what the program will pay by any third person on behalf of a resident (such as a family member). And, supplementation payments may be in the form of cash or free or discounted services (such as free or discounted services a hospital may offer to a SNF to induce acceptance of Medicaid or Medicare residents). Note that a properly-developed and implemented “reserved bed arrangement” does not constitute prohibited supplementation (see discussion of requirements and limitations regarding reserved bed arrangements under separate discussion of that risk area in this compliance guidance).
Following is a sample auditing and monitoring approach facilities may wish to use, tailored to their own operations, to track and ensure compliance with anti-supplementation laws and requirements. As in other parts of this compliance guidance, we approach this monitoring task in three discrete sections, posed as questions to guide the compliance monitoring staff or team:
Specifically, what are we being asked to measure or monitor?
- Does the facility charge any amounts to any resident for a covered service paid for by Medicare or Medicaid, whether that amount is cash or a free or discounted service or item provided by another health care provider?
- Do we require any guarantees of payment (in any form) other than required copays or deductibles from any resident or any third party on behalf of the resident as a condition of admission or continued stay at the facility?
- Do our admissions and billing staff understand what supplementation means and the prohibition on supplementation?
Specifically, where should we look to answer questions 1 – 3, above?
- Interview applicable billing and admissions staff on a periodic basis [define schedule] to ensure they understand what supplementation is and the prohibitions on supplementation. This will be handled by [define staff].
- Review all resident and Medicaid/Medicare bills, claims and/or invoices to ensure the facility only charges the amount paid by the applicable program for any covered service, along with any permitted deductible or copay. This will include a sample of [define number of claims/bills] to be reviewed [define schedule] and will be handled by [define staff].
- Review a sample of [define size] resident or third party invoices to ensure that any services for which separate charges, above and beyond what Medicaid or Medicare pay, are for non-covered items (not paid for by Medicare or Medicaid) which the resident has specifically requested with full knowledge that they are not required to request such services but are required to pay for them if requested. This audit will be performed [define frequency] by [define responsible staff].
What do we do with the results of our Anti-Supplementation efforts?
- Results should be provided to the facility’s compliance officer and compliance committee for evaluation and response.
- Policies and procedures governing therapy services should be modified, as appropriate, based on these findings and appropriate training or re-training provided to relevant staff.
- Other corrective actions should be implemented as appropriate and explained to clinical and/or billing staff, with follow up to ensure compliance with same.
- This information should be provided to the Quality Assurance Committee and to the facility/company Board of Directors or owners, including the results of the audit, any problems identified and any corrective measures implemented, along with a plan for ongoing review and monitoring of corrective actions.