A. OIG Guidance:
1. 1998 Special Fraud Alert:
In March of 1998 the OIG published a Special Fraud Alert identifying the relationship between hospices and nursing homes as a segment of the healthcare industry particularly vulnerable to fraud and abuse, and an area of potential compliance concern. (This special fraud alert can be found at http://www.oig.hhs.gov/fraud/docs/alertsandbulletins/hospice.pdf.) Risk areas identified in the Special Fraud Alert included:
- A hospice offering free goods or goods at below fair market value to induce a nursing home to refer patients to the hospice. \
- A hospice paying room and board payments to the nursing home in amounts in excess of what the nursing home would have received directly from Medicaid had the patient not been enrolled in hospice.
- A hospice paying amounts to the nursing home for additional services that Medicaid considers to be included in its room and board payment to the hospice.
- A hospice paying above fair market value for additional non-core services which Medicaid does not consider to be included in its room and board payment to the nursing home.
- A hospice referring its patients to a nursing home to induce the nursing home to refer its patients to the hospice.
- A hospice providing free or below fair market value care to nursing home patients, for whom the nursing home is receiving Medicare payment under the skilled nursing facility benefit, with the expectation that after the patient exhausts the skilled nursing facility benefit, the patient will receive hospice services from that hospice.
- A hospice providing staff at its expense to the nursing home to perform duties that otherwise would be performed by the nursing home.
2. 2008 Supplemental Compliance Guidance for Nursing Facilities:
These areas of focus and concern were carried forward, many word-for-word, into the 2008 Supplemental Compliance Guidance for Nursing Facilities. In the Compliance Guidance, the OIG identifies the following hospice services as a potential compliance risk area:
- Free nursing services offered by the hospice for non-hospice patients.
- Room and board payments in excess of those paid to the facility at the Medicaid rate.
- Inflated payments to the facility for performing hospice services to the hospice’s patients.
- A hospice offering free goods, or goods below market value, to a nursing facility to induce the facility to refer patients to the hospice.
- A hospice paying room and board payments to the nursing facility in excess of what the nursing facility would have received directly from Medicaid had the patient not been enrolled in hospice. Any additional payments must represent the fair-market value of additional services actually provided to that patient that are not included in the Medicaid daily rate.
- A hospice paying amounts to the nursing facility for additional services that Medicaid considers to be included in its room and board payment to the hospice.
- A hospice paying above fair-market value for additional services that Medicaid does not consider to be included in its room and board payment to the nursing facility.
- A hospice referring its patients to a nursing facility to induce the nursing facility to refer its patients to the hospice.
- A hospice providing free or below fair market value care to nursing facility patients, for whom the nursing facility is receiving Medicare payment und the SNF benefit, with the expectation that after the patient exhausts the SNF benefit, the patient will receive hospice services from that hospice.
- A hospice providing staff at its expense to the nursing facility.
Each of these practices is a potential false claim under the federal False Claims Act, and could also potentially violate provisions of the Anti-Kickback Statute (see discussion on false claims and prohibited kickbacks in other sections of this compliance guidance).
3. OIG Work Plans:
Although the 2009 OIG Work Plan did include an area of targeted review concerning the amount of services provided by hospices to patients residing in nursing facilities (previous OIG reviews had found that hospice beneficiaries in nursing homes received fewer nursing and aid services than those patients being served in their homes), there is no targeted area of focus on hospice services being delivered in nursing facilities in the 2010 Work Plan.
4. 1999 Compliance Guidance For Hospices and Revised Conditions of Participation effective 12/02/2008:
Nursing facilities should also be aware of and keep in mind that in October of 1999, the OIG issued a separate Compliance Guidance for Hospices. In addition, long-awaited revisions to the Hospice Medicare Condition of Participation primarily took effect in December of 2008 and these placed considerably more regulation on the provision of hospice services, including to patients residing in nursing facilities. As it did with its Compliance Guidance for Nursing Facilities, the OIG identified particular compliance risk areas in its Compliance Guidance for Hospices that relate to the hospice relationship with nursing facilities. Many of these areas overlap those identified in the Compliance Guidance for Nursing Homes. Others, however, do not; but in combination with the new COP provisions, should be causing hospice providers to be more deliberate and consistent (and perhaps more demanding) in their relationships with nursing facilities. These specific areas of OIG concern for hospices include:
- Providing incentives to actual or potential referral sources (e.g. nursing homes) such as providing free or below market value administrative or other services to the nursing facility.
- Paying room and board above what the nursing home would have otherwise received from Medicaid.
- Overlap in the services that a nursing home provides, which can result in insufficient care provided by the hospice to a nursing home resident. (The hospice is only permitted to utilize nursing facility staff to implement the plan of care to the extent that the hospice would routinely utilize the services of the hospice patient’s family, and services provided by the hospice in the facility should be similar to those provided in a home setting.)
- Improper relinquishment of core services and professional management responsibilities to the nursing home.
- Providing hospice services in a nursing facility before a written agreement has been finalized.
- Improper patient solicitation activities, such as “patient charting” (arrangement with the nursing facility for hospice personnel to review patient records without the patient’s permission solely for the purpose of determining whether the patient’s are eligible for hospice care and to solicit hospice referrals.
B. Monitoring Compliance:
To monitor compliance in the area of relationships with hospice providers and patients, and to avoid these or other hospice compliance issues, the OIG recommends the following specific measures by facilities:
- Facilities should develop policies and procedures that prohibit the following practices from occurring:
- Facility requesting, requiring, or accepting free or below fair market value goods or services as an inducement to refer patients to a particular hospice.
- Facility requesting, requiring, or accepting room and board payments in amounts in excess of what the facility would have received directly from Medicaid had the patient not been enrolled in hospice.
- Facility requesting, requiring, or accepting above fair market value for “additional” non-core services that Medicaid does not consider to be included in its room and board payments to nursing homes.
- Facility requesting, requiring, or accepting referrals from a hospice as an inducement to refer nursing home residents to the hospice.
- Facility requesting, requiring, accepting, or allowing the hospice to provide free or below fair market value care to nursing home residents, for whom the nursing home is receiving payment under the Medicare SNF benefit, with the expectation that after the patient exhausts the SNF benefit, the patient will receive hospice services from that hospice.
- Facility requesting, requiring, accepting, or permitting the hospice to provide staff at the hospice’s expense to the nursing home to perform duties that otherwise would be performed by the nursing home.
- Facilities should structure their relationships with hospice providers to fit within a recognized safe harbor under the Anti-Kickback Statute, such as the personal services and management contracts safe harbor.
C. Auditing and Monitoring:
Following is a sample auditing and monitoring approach facilities may wish to use, tailored to their own operations, to track and ensure compliance with hospice relationship and hospice patient services 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?
- Are nursing home residents who may meet hospice eligibility requirements being provided with information allowing them a choice between local hospice providers?
- Can the nursing facility support its decision (if one has been made) to limit the number of hospice providers permitted in the facility?
- Are there written agreements in place with each hospice provider, and do these written agreements fall within the personal services and management services safe harbor?
- Is there any financial or legal relationship between the medical director or the hospice and the nursing facility or its medical director?
- Does the nursing facility have an appropriate process in place for making and documenting reasonable, consistent, and objective determinations of fair market value of the services they are providing to or receiving from the hospice?
- Are room and board payments being made to the facility by the hospice in excess of what the facility would have received directly from Medicaid if the patient had not elected hospice?
- Is the nursing facility allowing hospice employees to provide free services to non-hospice patients or their family members?
- Is the nursing facility making referrals to the hospice with the expectation that it will result in reciprocal referrals from the hospice?
- Is the facility permitting the hospice access to resident records that are not either 1) current patients of the hospice, or 2) residents who have specifically requested and authorized review by the hospice for hospice eligibility?
- Is the nursing facility permitting a hospice to solicit nursing facility residents who have either not been referred to hospice by an independent physician or who are currently under the care of another hospice provider?
- Is the nursing facility accepting additional payments from the hospice for goods or services that Medicaid determines are included in the amount received for room and board?
- Is the hospice providing substantially all of the core services for each hospice patient through the hospice’s own staff?
- Are non-core services that are being provided by the nursing facility and not by the hospice being provided under an arrangement that provides for payment of fair market value for the services?
- Do we have in place facility policies and procedures reflecting the guidelines set forth in items 1 – 13, above?
Specifically, where should we look to answer questions 1 – 14, above?
- Periodically examine the facility’s policies and procedures governing relationships and written arrangements with hospice providers and the provision of care and services to hospice patients to ensure they are consistent with these principles. This will be done annually [or more often as appropriate] by [identify responsible staff].
- Conduct a legal assessment of all contractual relationships with hospice providers as they are established, including an assessment of any relationship(s) between the hospice/medical director and the nursing facility/medical director, and any corresponding documentation of fair market value determinations. Review annually.
- Periodically review the number of available local hospice providers and compare this to the number of providers under arrangement with the nursing facility. Determine and document whether reasonable rationale exists for limiting the number of providers permitted to provide hospice services within the facility. A review of the number of resident requests for non-contracted hospice providers, if any, should be included in this review.
- Monitor regular coordinated care planning meetings to ensure core hospice services are being provided by the hospice and are reflected in the coordinated plan of care and patient record as such, and that services being provided by the nursing facility are consistent with those included in the room and board charge, or pursuant to a written agreement for additional non-core services that exceed those included in room and board. This will occur monthly [or other appropriate frequency] and be coordinated by [identify staff person(s).
- Interview X number of facility staff, hospice patients and their family members to determine if they understand the distinction between services that must be provided by the hospice and those that can be provided by the nursing facility, and whether they believe that services are being provided as needed and ordered.
- Monitor a sample of the visits made to the facility by hospice personnel and document activities beyond the scope of providing services to designated hospice patients.
- Audit a sample of billing records [define sample size] on the following schedule [monthly, quarterly or other] to ensure bills to hospice providers are supported by appropriate documentation, include only charges for room and board or additional non- core services that are consistent with the terms of the contract in place with the hospice provider.
What do we do with the results of our Hospice monitoring efforts?
- Results should be provided to the facility’s compliance officer and compliance committee for evaluation and response.
- Policies and procedures should be modified, as appropriate, based on these findings and appropriate training or re-training provided to appropriate staff.
- Other corrective actions should be implemented as appropriate and explained to affected 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.