Over the last 12 months, there have been an inordinate amount of state and federal investigations conducted by ZPIC, OIG, DOJ along with many other governmental entities. The etiology of these reviews vary in origin, UB-04 edits, diagnoses patterns, ICD-9 Coding, yet a considerable percentage is spurred by whistleblowers.
Individuals who feel that the accused organization has intentionally defrauded the Federal Government of money.....most often, lots of money, i.e., millions of dollars. Individuals who worked for the accused organization for extended periods of time under the infrastructure he/she claims to be unethical. Individuals, who perhaps, experienced some form of a negative interaction with the organization possibly due to poor performance or inadequate behaviors.
These individuals, in many instances, receive a percentage of the monetary findings upon completion of the investigation. Some do not. Names are only revealed if the case is litigated. Otherwise, these individuals remain anonymous.
The investigation itself turns the accused organization upside down. All hands on deck to prepare the documents and finalize an appeal for the attorneys. Hours and hours of labor are focused on the investigation versus the normal daily tasks of patient care, company development and industry relevance. Fear and chaos ensue as employees worry about losing jobs and providing for their families. Anxiety and paranoia bleed out of staff as they replay the time frame under scrutiny and ponder whether or not “they did something wrong”. Silent finger pointing manifest in management’s brains, while direct care providers lose confidence in the accused organization’s integrity. This climate remains in effect for months, if not years, depending upon the skill set of the legal team representing the organization combined with the knowledge and confidence of the employees assigned to “handle this situation.”
The burning questions on everyone's mind are, “What if the whistleblower is wrong? What if there is no credence to the accusation?” Understanding that there are cases in which underhanded billing is uncovered, but what if it is just not present in the case? What is the fate of the accuser?
The recently publicized case of Life Care put the industry back on its heels. Is it ok to have targets in the Rehabilitation Departments? Can regional therapists provide care recommendations without seeing the patients? Can we even discuss the % RU without being considered fraudulent? Everyone took a step back and questioned their approach, vernacular and veracity.
CMS created a complex PPS reimbursement system that focuses on calculating and monitoring therapy minutes to ensure that SNFs are properly reimbursed for services provided. The system is so intricate that Rehabilitation Managers are consumed by minute management with attention drawn away from clinical management. Due to the densities of the system, all too frequently the Rehabilitation Manager is the only one who understands the system. This scenario focuses Rehabilitation Departments on minutes, categories, EOTs, COTs and schedules versus patient care. Are frustrated therapist’s, that do not understand the complexities of the system, fueling the fire?
The results of a more recent settlement from an OIG investigation involving the Tennessee based Grace Healthcare houses comments from the Eastern District US Attorney stating the following:
“The continued viability of our federal healthcare benefit programs depends, in large part, on the honesty and integrity of the program participants,” said U.S. Attorney for the Eastern District of Tennessee Bill Killian. “Health care providers must make decisions regarding the level of services to be provided based solely on individual patient need rather than a desire to increase the bottom line. As this settlement demonstrates, when aggressive business practices cross the line into waste and abuse, we are committed to working with our federal and state partners to protect public funds.”
Additional details are located on the US Department of Justice website:
Given all of these situations, it is important for all Long Term Care professionals to ponder these five important tips to defend against allegations of improper claim submission:
- Review the Medical Records prior to submission to the governmental entity and observe if there is in fact a pattern of misconduct or false claims (i.e., minutes on therapy logs match the MDS). Do not send the medical records without reviewing every claim. It is imperative to know what the auditors will unearth. Scrutinize the charts with a cynical eye.
- Identify the patient's functional level prior to hospitalization, on admission and upon discharge from the SNF setting.
- Note whether or not the patient improved functionally and clinically. If the patient's status declined or stayed the same, see if the record depicts a medical justification.
- Assess functional status versus the documentation. In some instances, the documentation may be lacking content but the gist of the medical status is transparent. If this is the case, write a summary describing the care and status.
- Create a summary sheet of all patients reviewed including: ICD-9 coding, hospital admission diagnoses, clinically anticipated stay at the facility, certification form completion, MDS ARDs, along with the rationale for skilled coverage.
The journey through this type of investigation is incredibly stressful. Everyone understands the intent of the Whistleblower law...but sometimes it can be damaging. Providers and clinicians are reacting to the abundance of publicized investigations, with a potential negative impact on patient care. Therapy professionals are questioning therapeutic interventions provided as a covered service and have adopted a conservative approach so as not to create a potential overpayment situation for the SNF. The number one goal in post-acute care, as mandated by OBRA '87, is to bring the patient to his/her highest practicable state of wellbeing. Can facilities maintain the philosophy of “provide great care” or has the clinical team been hindered as provider’s reaction to “do the right thing” results in potentially over-interpreting the regulations?
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