Fraud and abuse in the form of free discharge planning

Providers and case managers/discharge planners are in the proverbial "hot seat" with regard to marketing and enforcement activities by the OIG. They must keep up-to-date on these issues.

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Hospitals are required to provide discharge planning services. Case managers who provide these types of services and providers that receive referrals from hospitals must be aware of a possible type of fraud and abuse in the form of free discharge planning services. Specifically, there is a federal statute that governs illegal remuneration in the Medicare, Medicaid and other federal and state health care programs. This statute is often called the anti-kickback statute or AKS. 

 The statute generally says that anyone who either offers to give or actually gives anything to anyone in order to induce referrals has engaged in criminal conduct. Possible penalties for violation of this statute include imprisonment, fines, suspension and exclusion from participation in the Medicare, Medicaid and other state and federal health care programs and civil money penalties. The stakes are, therefore, extremely high!

 The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services is the primary enforcer of fraud and abuse prohibitions. The OIG stated in a Special Fraud Alert, published in August of 1995, that the activities of coordinators and liaisons supplied by providers who want referrals cannot supplant the services of discharge planners. When coordinators and liaisons perform services that discharge planners are supposed to perform, enforcers may view these services as kickbacks to referral sources in the form of free discharge planning services.

 Discharge planners/case managers at hospitals and long-term care facilities may want to in enter into written agreements with post-acute providers; such as home care agencies, home medical equipment (HME) suppliers and hospices; to provide coordinators and liaisons. Although written agreements for the provision of coordinators/liaisons are not required, they may be acceptable if appropriately drafted. 

 Specifically, these agreements, whether written or verbal, must be structured in order to avoid possible kickbacks. Below are some of the potential pitfalls of such agreements that should be avoided:

•  Agreements should not require providers to keep a coordinator/liaison in the facility on a full-time basis unless the number of referrals clearly justifies the commitment of an employee for this amount of time. Otherwise, this requirement may reinforce the likelihood that this arrangement will be viewed by the OIG as an impermissible kickback or rebate. If the liaisons/coordinators do not provide discharge planning services, there is no need for them to be on the premises on a full-time basis. Rather, an agreement for legitimate coordinator/liaison activities would require them to be available to receive referrals on an as-needed basis only. If providers supply liaisons and coordinators under the proposed agreements on a full-time basis, but do not receive enough referrals to justify assignment of personnel on a full-time basis, it reinforces a conclusion that liaisons and coordinators are really supplying discharge planning services in exchange for referrals.

•  Agreements to provide coordinators/liaisons should not require them to "develop" and/or "implement an appropriate discharge plan" or to document these activities in patients' charts. Medicare Conditions of Participation (COP's) for hospitals make it quite clear that it is the job of discharge planners to develop and implement appropriate discharge plans.  

• Agreements regarding liaisons and coordinators should not include a requirement that they must be registered nurses (RN's). It is common practice in post-acute care industries to utilize coordinators and liaisons who are not licensed professionals who perform very effectively in these positions. A reasonable interpretation of this requirement is that liaisons and coordinators must be RN's because they will, in essence, be providing discharge planning services.

• Discharge planners/case managers should not propose written agreements for use of coordinators and liaisons that include indemnification provisions. If no free discharge planning services are being provided, there is no need for indemnification.

• Hospitals that elect to have written agreements with providers who supply coordinators and liaisons must also be careful to handle compliance with HIPAA privacy requirements appropriately. Specifically, providers who supply coordinators and liaisons should not be required to sign business associate agreements. The Privacy Rule generally defines a business associate as an entity that performs a service on behalf of a covered entity. The OIG is likely to conclude that the services performed by providers as business associates on behalf of hospitals are discharge planning services. The Privacy Rule and related materials also make it clear that providers who receive referrals from other providers are not business associates of referring providers. Such referrals, including information shared in order to make referrals, is part of treatment, payment and healthcare operations of covered entities that do not require consent of patients to disclose.

Providers and case managers/discharge planners are in the proverbial "hot seat" with regard to marketing and enforcement activities by the OIG. They must keep up-to-date on these issues.

©2021 Elizabeth E. Hogue, Esq. All rights reserved.

No portion of this material may be reproduced in any form without the advance written permission of the author

OIG Report: Data brief with concerns for potential upcoding

The Office of Inspector General released a data brief looking at hospital admissions from FY 2014-FY 2019.  Their findings recommended CMS to further evaluate a major concern of possible upcoding, specifically for CMS to evaluate a targeted review of MS-DRGs and stays that billed at the highest severity with a lower-than-expected length of stay.  Thankfully, CMS has declined an interest to further investigate or target specific hospitals at this time.  But that does not mean that they will not come knocking in the future. 

The OIG found a 20% increase in the number of stays for the highest severity level, nearly accounting for half of all Medicare inpatient spending.  At the same time, the average length of stay decreased for these high severity stays. 

Nearly one-third of these high severity stays, lasted a ‘particularly short amount of time’ and more than half only had one diagnosis qualifying them for payment at that level. 

To ensure your hospital is compliant, review of your PEPPER Report and discuss at your upcoming UR Committee potential risks.  Specifically, self-audit to ensure compliance for any records that are:

• Coded at the highest severity level with a short length of stay.

• Coded at the highest severity level with only one major complication.

Gatekeepers of the ED

Hospitals can alleviate the difficulty of rework by having experts at all entry points into the hospital, and by deploying a front-end revenue cycle team, which also can function as a strong gatekeeper.

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The decision to admit a patient from the emergency department (ED) to a hospital bed is one of the most expensive healthcare decisions. As payers continue to decrease payments for hospitalizations and as more diagnoses move to the outpatient setting, hospital systems need to have more efficient processes in place to decrease unnecessary admissions. 

During times of COVID, when hospitals are at capacity, we have seen patient admissions decrease. Although not a new concept, in 2014, Reducing Variation in Hospital Admissions, by Sabbatini, Nallamothu, and Kocher, reported the same trend: that emergency visits resulting in hospitalizations decreased when hospital capacity was up, regardless of diagnosis or geographic location. The largest variation was found in admissions for chest pain, soft tissue infection, asthma, chronic obstructive pulmonary disease (COPD), and urinary tract infections. Despite the spectrum of severity for these diagnoses, a true gatekeeping process for ED admissions does not always exist. Admissions can vary by who is doing the admitting, not necessarily the clinical pathway. To meet appropriate criteria for hospitalization, patients in the ED must have both emergent and necessary treatment that cannot be completed in an outpatient setting. They must then be evaluated for inpatient status by the hospitalist or attending physician to determine appropriate severity of illness, and level of care – and whether that care requires a stay of greater than two midnights for treatment.  

In evaluating hospitals across the country, we have seen some common trends that lead to this problem, and it all comes down to the push and pull of the ED physician,  the admitting, and the hospitalist. The ED continues to manage by door-to-doc time, and ED-to-admission (or out the door). The ED physician is often pressured to make decisions quickly, and sometimes, when all the evidence is not present or the discharge from the ED is too difficult or untimely, the patient is admitted under observation for the next team to figure out what to do. The patient then goes to the floor, the hospitalist team and care management team evaluate, and then they essentially create a lengthy process of determining what to do next (or ask why this patient was even admitted). Hospitals can alleviate this by having experts at all entry points into the hospital, and by deploying a front-end revenue cycle team, which also can function as a strong gatekeeper.  

Your gatekeeper teams should include the following:

• Hospitalists for all admissions;

• A utilization review specialist with some basic knowledge in clinical documentation integrity as frontline support;

• A physician advisor for back-up support; and 

• A social worker for complex ED cases and social needs.  

A utilization review specialist (URS) is trained and has use of programs that identify patients who are appropriate for admissions. The URS can also assist the physicians in the ED to identify the patients appropriate to discharge from the ED. Locating the URS in the ED near the hospitalist will increase communication during the evaluation and allow the physician to ask questions regarding admission status and appropriate documentation. Cross-training this URS with clinical documentation integrity  (CDI) can have added benefits, to assist with understanding the clinical truth of the case and what can be documented to ensure an accurate description of why the patient needs to be admitted.   

For patients who are medically or socially complex and require additional assistance, a social worker being available during peak hours of the ED (at a minimum) is a true advantage to ED throughput. The social worker can relieve the nurse and physician from the complex work of addressing potential child abuse, adult abuse, or the social determinants of health (SDoH), which can create barriers in the ED. Social workers can refer patients to community support systems and outside resources, so the ED does not become the “safety net” for patient care related to societal issues. Good catches can occur to admit patients to skilled nursing directly from the ED, arrange home health, or coordinate care back to a primary care physician or outpatient specialist, such as urgent ortho. Utilizing the electronic medical record (EMR), social workers can track and alert patients who are potential readmissions to the hospital, and alert the medical team to evaluate if readmission is necessary.   

Data-Driven Decisions 
A good use of your utilization review (UR) committee is to evaluate data associated with over-utilized resources. Patients who are unnecessarily admitted to the hospital are key factors that can be reported, discussed, and triaged for a new process. Data can highlight variation in admission practices by ED physicians and hospitalists for similar chief complaints. By getting both groups talking and involving the UR committee/case management department, alternative approaches can be tackled to address this scenario: we have this diagnosis, we know they do not belong in the hospital, but we don’t know where else they should go. A great example of this is low-acuity chest pain: patients who require a quick cardiology consult, and potentially a rapid stress test. If the hospital coordinates a fast track for these patients from the ED to the outpatient cardiology office for evaluation of stress tests, the hospitalization can be avoided altogether, saving time for the hospitalist, staff, and on-call cardiologist. 

Consider a Clinical Decision Unit 
If the patient must enter the hospital, but does not meet inpatient criteria, successful observation management will be key, and is best managed under a true clinical decision unit (observation unit). This tells the patient they are not truly inpatient, but staff can run the unit like an emergency department by tracking patients by the hour, not the day. UR and case management (CM) continue to serve as gatekeepers, and assist the team in evaluating appropriate documentation, severity, level of care, and potential barriers in the progression and transition of care.  

During times of COVID, hospitals were forced to really evaluate the necessity of care in the emergency room for hospital admission. However, as history shows us, the healthcare system is not the best at sustaining lessons learned. As beds become more available, those diligent practices are likely to relax. Keeping this time fresh in our minds, to really reflect and implement the good things that came out of medical care, will be valuable as we continue to move to a value-based framework for healthcare.

Maintaining a strong gatekeeping team for your hospital admissions, particularly in the emergency room, will produce a strong front-end revenue cycle management.

How can unit-based leadership improve performance metrics?

The Journal of Hospital Practice released an article on, “Impact of a hospital unit-based leadership triad on key performance metrics.”   The team of researchers follows a triad unit that was created at Saint Francis Hospital and Medical Center in Hartford, Connecticut.  The triad team consists of the already established dyad- a clinical nurse manager and a lead case manager.  They added a hospitalist medical director with the goal to see how this trio could improve various markers such as,

• Observed over expected length of stay.

• Patient experience

• Hand-washing compliance

• All-cause 30-day readmissions

• Percent of discharges by noon

• Percent of discharge to a skilled nursing facility

Interdisciplinary rounds (IDR) are a successful model for improving the care delivery process for patient management and throughput in the progression of care.  IDRs ensure that all members are on the same page and speaking the same message to the patient, each contributing their relative discipline.  However, rarely do we look at how a leadership-based model could impact with functionality of IDR.  In the article, staff participated in morning IDR on the unit and then in the afternoon another IDR was held with leadership present. 

The results were as they had hoped.  Length of stay decreased, CMI increased, discharge by noon increased, and the discharge to SNF decreased.  The other markers are believed to have been not significant due to already having high levels of compliance in hand hygiene and patient experience. Readmissions worsened but were not statistically significant.  SFMC should be commended on instilling a positive culture in their care delivery process.

So, how did they do it, because just putting the positions into the role does not make the difference.  We are not recommending every hospital follow this same model but there are key components that highlighted to SFMC’s success and should be considered in your own case management and progression of care model. 

• They added physician leadership into the team process and all members had aligned goals and incentive metrics.  Meaning each position is moving in the same direction with the same objectives.

• They empowered leadership to address any concerns and ideas brought to their attention related to patient care, safety, or unit workflow. Decisions were not top down but arose from the realities of the front-line worker experience. 

• Leadership and the units were encouraged to innovate locally in any way they felt would achieve operational improvement. Teams had freedom to work creatively to achieve objectives through trial-and-error models.

• The IDRs were focused with an am huddle on barriers to discharge that day and in the afternoon, they huddled for the prep work for the next day and to discuss additional patient insights related to the progression of care. Having leadership involved in the afternoon allowed for support to identify and triage any problems that arise.

 If your hospital is interested in discussing further how to incorporate IDR, the triad model, or how to build an ACU.  Feel free to contact us for a consultation. 

Understanding your Readmissions: How to Reduce Penalties?

Hospitals already suffering from the financial hemorrhage of the COVID-19 pandemic will be hit again by the readmission penalty. More than 2,500, or 83 percent of hospitals in the U.S., will receive reduced Medicare funding for the 2021 fiscal year because of their readmissions from 2016 to 2019.

The penalty per hospital is up to 3 percent, and is dependent on the percentage of readmissions that the facility exceeded, per Centers for Medicare & Medicaid Services (CMS) requirements. CMS continues to include the following six conditions for 30-day unplanned readmission measures: acute myocardial infarction (AMI), chronic obstructive pulmonary disease (COPD), heart failure, pneumonia, coronary artery bypass graft (CABG), and elective hip or knee arthroplasty (THA/TKA). The 30-day readmission period was chosen by lawmakers as a proposed timeframe that readmissions could be attributed to hospital care. The intent of this timeframe is for hospitals to have processes and resources in place to manage patients post-hospitalization.

The Hospital Readmission Reduction Program (HRRP) was created by CMS and put into effect on Oct. 1, 2012, as a progressive effort to encourage value-based measures in our healthcare systems. Readmissions affect 18.2 percent of Medicare beneficiaries, and cost Medicare between $15-17 billion per year. In 2015, Medicare created the Hospital Value-Based Purchasing Program (VBP), which includes the Medicare Spending Per Beneficiary (MSPB). MSPB evaluates the Medicare Part A and B spending for patients three days prior and 30 days after inpatient hospital admissions; thus, a hospital readmission of any cause impacts a hospital’s MSPB ratio. In fact, many commercial payers have followed suit, and have included some type of language in contracts regarding reduced payment or monitoring of hospital readmissions, with penalties as high as full denial of payment for the readmission. 

Reports suggest that about 25-40 percent of readmissions are preventable, highlighting the percentage of patients with chronic conditions that warrant appropriate rehospitalization. Nonetheless, the quest for creative thinking in our push for value asks health systems to think creatively in how to handle these patients. Hospitals need to evaluate how they can financially maintain as much of their payments as possible during a time when revenue is being pulled back from all areas (and during a pandemic, when elective procedures are at an all-time low). This will require an eye on process improvement, front-end quality, and revenue management to avoid back-end layoffs or broad-stoke cost-cutting measures. 

Focus on What You Can Control
Hospitals often track and trend exhaustive amounts of generic data without attributing the appropriate questions of “why am I tracking this?” and “how can I make these data points move?” All readmissions should be evaluated first, labeled as preventable or non-preventable. Then work groups should dive deeper into the preventable readmissions by breaking them down by the time they returned to hospital, discharge disposition, referral source, and the attributing categories for each readmission. Once each category is put together, look for the trends and determine actionable steps that can impact the readmissions. Put any questions that the data creates, pertaining to a front-end process, with case management, asking key questions at the time of discharge for initial hospitalizations and for the assessments during readmission.

Look at Your Readmissions of Fewer than Seven Days
Per CMS guidelines, hospitals are expected to have a mechanism to evaluate readmissions that occur within 30 days. Research tells us that readmissions occurring within seven days of the index admission were likely hospital-related and preventable. Such readmissions should be reviewed by case management and hospital leadership as an opportunity to improve physician decision-making, post-surgical infection rates, discharge planning from inpatient care to outpatient care, management of symptoms after discharge, and patient follow-through with appointments. How comfortable was the patient with the transitional plan put in place? Will this key conversation and assurance at time of discharge ensure greater success? Interventions should be targeted at patients within the first week of discharge, and the implementation of an outpatient case management plan should focus on populations at high risk for readmission. 

Do Your Research before Investing in Costly Programs
Harriette, G.C., et al, (February 2017) found in their comprehensive network meta-analysis published in the European Journal of Heart Failure that home nurse visits, disease management clinics, and care management programs made the greatest impact to reduce mortality and readmission rates for heart-failure patients. Research tells us that getting a patient in with their PCP within 5-7 days post-discharge will help avoid a return to the hospital. We also know that the highest percentage of avoidable readmissions come through admission requests by emergency room physicians. The meta-analysis from Harriette, G.C. et al also found that singular interventions such as education at discharge, telephone support, or telemonitoring did not make any difference in preventing readmissions. Rather, the recommendation is a comprehensive program that includes face-face connection with the patient – or, in today’s times, at least videoconferencing to see the patient and what their home situation looks like. We also know that social determinants of health (SDoH) have a large impact on readmissions and high utilization. The recommendation is to include SDOH questions in all case management assessments to determine risk factors and ways to counteract societal issues that patients face.

Use Strategy and Community Partners to Tackle Preventable Readmissions
Most electronic medical records (EMRs) and case management departments should already include or be familiar with the key components to identify, alert, and hand off patients at high risk of readmission to outpatient case manager counterparts, ideally while the patient is still hospitalized. A proficient inpatient case management program should work closely with the hospitalist and physician teams to create an assessment and transitional care plan that decreases the risk of readmission. A case management team that is trained to identify at-risk populations will help decrease the risk of readmission by addressing issues during the hospitalization. Creating a program in which the outpatient case managers communicate with the inpatient case managers during hospitalization to collaborate as a team with the patient will ensure a safe transition at discharge. Outpatient case managers do not necessarily have to be funded at the cost of the hospital; most Accountable Care Organizations (ACOs), home health providers, and public health partners now have case management programs in place that can assist hospitals in the handoff process. 

In addition to all other stressors, 83 percent of hospitals nationwide are losing additional revenue for their Medicare payments from October 2020 to September 2021 because of CMS’s readmission reduction program. Readmissions ripple into MSPB, Medicare shared savings, bundle payments, and commercial reimbursement. Understanding the financial impact and how your health system is creating outcome-driven results to mitigate these factors will not only ensure survival, but improve patient quality.