Home Health Agencies

Home health care agencies are one of the most regulated types of health care businesses. They experience scrutinization of claims by CMS and patient complaints to the state. Therefore, home health agencies should have systems and tools to help them remain compliant with the many regulations impact the delivery of home health care.

Chapman Law Group has a team of attorneys who assist home health agencies with all aspects of owning and managing an HHA, including, HHA formation and acquisition, compliance, licensing and certification, business and employment issues, audits, and defense of fraud and abuse allegations. Our attorneys regularly represent health care businesses before the state licensing boards, administrative courts, CMS, credentialing committees, accreditation agencies, and law enforcement agencies.

Home Health Business Matters

Our transactional attorneys have a great deal of experience assisting varies types of health care practices, including homes health care agencies, with transactional issues.  Many of our transactional attorneys have master of laws degrees in health care law and are exceptionally educated and experienced in the many regulations that impact home health care. Our attorneys assist both existing home health agencies and startup agencies with compliance, licensing, administrative actions, CMS issues, reimbursement issues, audits, business and employment disputes, contracts, etc.

We assist new home health agencies with:

  • Business formation
  • Medicare and Medicaid certification
  • Medicare conditions of participation
  • Outcome and Assessment Information Set (OASIS) setup and compliance plan
  • Initial survey
  • Accreditation (The Joint Commission, the Community Health Accreditation Program, and the Accreditation Commission for Health Care, Inc.)
  • AHCA licensing (Florida)
  • Medical Director, Director of Nursing, and administrator contracts
  • Draft policies and procedures, compliance manuals, and emergency management plans
  • Review business plans and contracts for compliance with federal and state fraud and abuse laws

We assist existing home health agencies with:

  • Purchase and sales agreements
  • Recertification
  • Change of ownership (CHOW) or location issues
  • Adding additional services
  • Reimbursement issues
  • Overpayment action
  • Audits (Medicare, Medicaid, and third party)
  • Onsite compliance surveys and deficiency reports
  • Health care fraud defense (false claims, kickbacks, Stark, etc.)
  • OASIS issues
  • Draft policies and procedures, compliance manuals, and emergency management plans
  • Review for compliance with anti-kickback statute, Stark, and CMS billing rules
  • Business and contract disputes
  • Medical Director, Director of Nursing, and administrator contracts
  • Employment disputes
  • OIG investigations and exclusions

Licensing and Disciplinary Actions

Generally, disciplinary action begins after a patient complaint is received by the state, or the state discovers deficiencies during a survey/inspection. This often results in administrative action against the home health agencies. Our home health attorneys regularly assist home health agencies with administrative actions, including:

  • Notice of intent to deny license
  • Denial of change of ownership or location
  • Patient abuse allegations
  • Overpayment demands (Medicare and Medicaid)
  • Revocation of license
  • Violations found during survey
  • Background screening violations
  • All other actions seeking sanctions and disciplinary action against a licensee

We also represent licensed home health professionals facing disciplinary action for:

  • Patient abuse
  • Theft
  • Drug diversion
  • Criminal convictions
  • DUI/OWI
  • All other disciplinary actions

Disciplinary and licensing actions are very serious. For licensed professionals, disciplinary action can lead to loss of licensure. For agencies, it could lead to revocation of a license and hefty fines. Our licensing attorneys are exceptionally experienced in defending nurses and agencies who face disciplinary action by the state (AHCA, DOH, LARA, ODH, etc.). We assist home health nurses and agencies during all stages of the disciplinary process, including investigations, inspections, complaints, Notice of Intent, administrative hearing, appeals, and modifications.

Fraud and Abuse

The OIG has made it clear that they are heavily monitoring home health agencies for fraud, waste, and abuse. In recent years, they have increased investigations, audits, evaluations, and enforcement actions against home health agencies.  In the four years between 2011 and 2015, the OIG reports more than 350 criminal and civil actions against home health agencies for $975 million.  Therefore, both home health agencies and physicians certifying patients for home care must ensure compliance with fraud and abuse laws at all times. Fortunately, the OIG has released their list of red flags for fraud.

OIG Home Health Agency Red Flags

  1. High percentage of episodes for which the beneficiary had no recent visits with the supervising physician
  2. High percentage of episodes that were not preceded by a hospital or nursing home stay
  3. High percentage of episodes with a primary diagnosis of diabetes or hypertension
  4. High percentage of beneficiaries with claims from multiple HHAs
  5. High percentage of beneficiaries with multiple home health readmissions in a short period of time

The OIG reports that common home health care fraud schemes involve:

  • billing for services not rendered;
  • misrepresentation of services;
  • medically unnecessary services;
  • falsification of medical records and physician authorizations;
  • false certification of patients as homebound or requiring home health services.

In addition to false claims, violation of the federal or state anti-kickback and Stark laws can lead to criminal and civil action for health care fraud. These laws are complex, however; there ae exceptions to the laws that allow home health agencies to lawfully market and obtain referrals. Our lawyers frequently assist home health agencies with the review of business plans and contracts to ensure compliance with all fraud and abuse laws.

Audits and Overpayments

As mentioned above, home health agencies are increasingly undergoing audits and their claims are being heavily scrutinized. We assist home health agencies with all stages of the Medicare and Medicaid audit process. Our team of attorneys includes a former health care fraud prosecutor who is exceptionally knowledgeable and experienced in fraud detection strategies, audit procedures, appeals process, and administrative, civil, and criminal proceedings.

Audits are conducted for two reasons: 1) to spot check claims samples, including high-risk claims, and 2) investigate claims where there is a suspicion of fraud. We help agencies respond to records requests in a manner that demonstrates that claims meet all required conditions of payment. If recoupment is sought, we assist agencies with overpayment demand appeals and/or negotiate a more favorable settlement/repayment schedule. The Medicare appeals process is complicated; with five different stages, multiple parties, multiple filing deadlines, and evidentiary deadlines. Therefore, we strongly recommend that agencies retain attorneys to respond to auditor’s requests and appeal overpayment demands. Overpayment action can lead to recoupment of the overpayment (ten of hundreds of dollars), plus fines, penalties, interest, payment delay on future claims, and even of loss of licensure.


Sources

2016 OIG HHA Fraud report – https://oig.hhs.gov/oei/reports/oei-05-16-00031.pdf