Fraud and Abuse Enforcement: What’s in Store?

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), the primary enforcer of fraud and abuse prohibitions, has issued its annual recommendations that, if implemented, will likely affect HHS programs positively in terms of cost savings, program effectiveness and efficiency, and public health and safety. The publication is entitled, “Solutions to Reduce Fraud, Waste, and Abuse in HHS Program: OIG’s Top Recommendations.” A complete copy of the Recommendations is available on the OIG’s website. Since it often seems that home care providers are unfairly the “poster children” for fraud and abuse, it is not surprising that some of the OIG recommendations will affect the home care industry.

First up! The OIG says that the Centers for Medicare and Medicaid Services (CMS) should implement the statutory mandate that requires surety bonds for home health agencies that enroll in the Medicare Program. The OIG says that CMS could have recovered at least $39 million in uncollected overpayments between 2007 and 2011 if home health agencies had surety bonds in the amount of $50,000, as required.

Surety bonds are an “old story” in home care. Some readers may remember what can only be described as a debacle when CMS originally attempted to implement requirements for surety bonds for home health agencies. Anecdotally, the dollar amount of the bonds was low, the availability was relatively scarce and the costs were high. It’s hard to understand what has changed since initial implementation was attempted and what problems surety bonds will solve, except perhaps to create another barrier to entry into the industry. It hardly seems worth the effort given the other barriers that CMS can now put up!

Now no surprise at this recommendation in light of recent OIG reports about quality of care in the hospice industry. The OIG says that CMS’ only remedy for hospices’ poor performance is to terminate them from the Medicare Program. The OIG thinks that the availability of other types of remedies may help CMS address issues or poor performing hospices. Again, this recommendation is difficult to understand. Isn’t termination from the Medicare and Medicaid Programs the most effective incentive to correct poor performance?

The OIG also says that CMS should require States to either enroll personal care services (PCS) attendants as providers or require PCS attendants to register with their State Medicaid agencies and assign each attendant a unique identifier. The basis for this recommendation, according to the OIG, is that “PCS are subject to persistent fraud and beneficiary harm.” Heads up on this one private duty agencies! If adopted, implementation of this recommendation will require an enormous investment of time and other resources.

The OIG goes on to say that CMS should develop policies and procedures to improve the timeliness of recovering Medicaid overpayments and recover uncollected amounts identified by OIG audits. According to the OIG, CMS has not recovered overpayments identified in OIG reports consistent with Federal requirements. As of May 2, 2018, CMS had recovered only $909.2 million of the $2.7 billion in identified Medicaid overpayments.

Providers should watch for developments regarding these recommendations in future efforts by CMS to combat fraud and abuse in the Medicare and Medicaid Programs.

©2019 Elizabeth E. Hogue, Esq. All rights reserved.

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