Deeper Than the Headlines: HCCA Highlights

Robert DeConti, HHS OIG’s Assistant Inspector General for Legal Affairs, was one of the keynote speakers at the 2nd Annual HCCA Healthcare Enforcement Compliance Institute in Washington D.C. Mr. DeConti spoke on Monday, October 24, 2016, and summarized selected fraud and abuse trends by government healthcare program type.

Here are some of the key highlights:

Skilled Nursing Facilities

Skilled Nursing Facilities, or SNFs, were the subject of an OIG report published in September 2015. The long and short of that report concluded that Medicare’s payment system for SNFs needs to be reevaluated.

In addition to this report, Mr. DeConti drew attention to various risk areas in SNFs including: 

• Upcoding through manipulation of RUGS classification
• Switch schemes between programs and status (inpt/outpt)
• Medically unnecessary therapy (PT, OT, and SLP)
• Trending towards for‐profit facilities
• High turnover rate and concerns regarding caregivers
• Theft of needed pain and other medications from patients

Mr. DeConti also drew special attention to the $125 million Rehabcare settlement earlier this year as an example of abuse of therapy in SNFs.

Hospice

Hospice services were also highlighted and two OIG reports were mentioned. The first report, on March 2016, was entitled, “Inappropriately Billed Medicare Over $250 Million for General Inpatient Care (OEI‐02‐10‐00491). The second report was just released in September of 2016, “Hospices Should Improve Their Election Statements and Certifications of Terminal Illness (OEI‐02‐10‐00492).

Fraud and abuse trends for Hospice included:

• Early or false diagnosis of terminal illness
• Continuous care in alleged crisis situations
• Unqualified providers and facilities
• Patient or family involvement in the fraud scheme
• Lucrative medical director contracts /kickbacks
• Marketers touting “new” hospice benefit where you don’t have to be terminally ill
• Door‐to‐door solicitation by sham religious entities
• Adult daycare misrepresented as hospice
• Increasing whistleblower cases

By way of providing an example, he emphasized the Serenity Hospice and Palliative Care settlement in October 2015, for $2.2 million. Allegations included Serenity’s submission of false claims to Medicare for hospice patients who were not eligible to be admitted. In addition to a CIA, the founder and former president of Serenity agreed to a five year exclusion from federal healthcare programs.

Laboratories

Two settlements were highlighted in the space of urine testing. The first was Millennium Health’s $256 million settlement (October 2015). Millennium billed for unnecessary urine drug tests and genetic tests, including for unnecessary confirmation tests on samples that produced normal results. Additionally, they were offering free testing cups in exchange for referrals.

The second settlement was Physicians Group Services, P.A. (PGS), for $7.4 million settlement (August 2016). This was a multi‐specialty physician practice group based in Jacksonville, Florida, that maintained a clinical laboratory as part of its practice. PGS billed for medically unnecessary quantitative urine drug testing services.

Mr. DeConti reminded attendees of OIG’s Advisory Opinion 15‐04. Key points in this opinion include:

Laboratory entering exclusive arrangements with physician practices

Under these arrangements, laboratory would provide free services to patients whose insurance companies would not pay for services from this laboratory

OIG found risk of AKS liability and potential for use of permissive exclusion authority. Lastly, genetic testing was diagnosed as an area of fraud and abuse in the Laboratory space. Examples of what OIG is seeing includes:

• Concerns of offerings at health fairs, church socials, and farmer’s markets
• Cheek swabs at the mall
• Social engineering
• Drug sensitivity testing
• Multiple unnecessary tests
• Physician‐owned laboratories

Physicians and Kickbacks

Special attention was also given to a relatively new OIG Video Series called “Eye on Oversight” 

In particular, Mr. DeConti highlighted the short, 3-minute video on, “Kickbacks to Physicians” (May 2016). It highlights a settlement with Dr. Jack Baker, a radiologist in the Houston area who also owned an imaging center. It was alleged that he paid other physicians sham medical director fees in return for referrals. As a result of this settlement, the OIG published a Fraud Alert last year about physician compensation arrangements and risks of violating the Anti-Kickback Statute. The Fraud Alert can be obtained here:

• https://oig.hhs.gov/compliance/alerts/guidance/Fraud_Alert_Physician_Compensation_06092015.pdf