What About Private Duty/Homecare Services and Fraud?

Written by Elizabeth E. Hogue, Esq. and presented here with the authors permission. There seems to be a myth among providers of private duty or homecare services that the federal anti-kickback statute applies to Medicare certified providers only. On the contrary, the anti-kickback statute applies to providers who receive funds from any state or federal healthcare program;…

What About Private Duty/Homecare Services and Fraud?

Written by Elizabeth E. Hogue, Esq. and presented here with the authors permission.

There seems to be a myth among providers of private duty or homecare services that the federal anti-kickback statute applies to Medicare certified providers only. On the contrary, the anti-kickback statute applies to providers who receive funds from any state or federal healthcare program; including the Medicaid Program, VA, TRICARE, etc. Private duty providers: This means many of you!

Four companies in Pennsylvania, for example, contracted with the Medicaid Program to provide services to qualified recipients, including personal assistance services (PAS), coordination of services and non-medical transportation, among others. Between January, 2011, and April, 2017, the companies received more than $87M in payments from the Medicaid Program. PAS payments accounted for more than $80M of this amount.  Sixteen defendants in this case admitted to participation in a wide-ranging conspiracy to defraud the Medicaid Program to obtain millions of dollars in illegal payments through submission of claims for services that were never provided or for which there was insufficient or fabricated documentation to support claims submitted.

The defendants engaged in a number of fraudulent activities, including fabrication of time sheets to reflect the provision of care that was never provided to recipients. Participants in the conspiracy also paid kickbacks to recipients in exchange for their participation in fraudulent activities, including to the son-in-law of an owner. Claims were also submitted for services allegedly provided by “ghost” employees of the companies. Some of the defendants also admitted that they submitted claims for so-called “unused” hours, i.e., excess hours of care that recipients had not needed.

Finally, defendants admitted during the course of audits of the companies that they directed the fabrication of various documents for submission to state authorities in an effort to conceal fraudulent conduct. Fabricated documents included time sheets required by the PAS program, criminal history checks, child abuse clearance forms and required consumer affidavits.

Defendants were required to pay approximately $54 million in restitution.

Fraud and abuse enforcers have repeatedly urged and, in some cases required, private duty providers to develop internal compliance programs. How do compliance programs help providers avoid enforcement action?

First, as a practical matter, when providers establish and maintain Compliance Programs, they discourage regulators from pursuing allegations of fraud and abuse violations. Technically speaking, the Federal Sentencing Guidelines make it clear that establishment and implementation of Compliance Programs is considered to be a mitigating factor. That is, if accusations of criminal conduct are made, the consequences may be substantially less severe as a result of a properly implemented Compliance Plans.

Providers with Compliance Plans are more likely to avoid fraud and abuse. This is because Plans routinely establish an obligation on the part of employees to prevent fraud and abuse. Compliance Plans also make it clear that employees have an obligation to bring any potential fraud and abuse issues to the attention of their employers first.

Compliance Plans may also help to prevent qui tam, or so-called “whistleblower” lawsuits by private individuals who believe that they have identified instances of fraud and abuse. There are significant incentives to bring these legal actions since “whistleblowers” receive a share of monies recovered as a result of their efforts. Some whistleblowers have received millions of dollars.

Finally, the Deficit Reduction Act (DRA) requires providers who receive more than $5 million from Medicaid Programs per year to implement policies and procedures, provide education to employees, and put information in their employee handbooks about fraud and abuse compliance. These requirements can be met through implementation of a Fraud and Abuse Compliance Program.

In view of the above, providers of private duty services should implement and maintain effective compliance plans.

©2022 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.

New Webinar! Paid Time Off: Creating and Structuring a Benefit Program to Recruit, Retain, and Reward

  • Date: Thursday, July 14th, 2022
  • Time: 3:00 PM – 4:00 PM ET
  • Register now

Many of us take paid time off for granted, but most home care field staff do not receive this benefit so they don’t get paid if they’re not working. Offering this highly desirable benefit is one way to reward employees, distinguish your company from your competitors, and enable you to attract better employees who are loyal and highly motivated. Some states have already adopted paid sick leave programs and that trend is expected to spread, so this could be the perfect time for your agency to get ahead of the government, as well as your competition. Join Private Duty Home Care at NAHC for this lively and informative discussion with a top employment industry expert.

Learning Objectives:

  • Sick time, vacation time, or PTO – how to structure time off to best benefit your organization and your staff
  • Mental health/personal days – why they’re important and what you can do to implement them easily
  • How rewarding staff that works can lead to long-term staff retention and loyalty

Faculty: Greg Henderson, Human Resources Outsourcing Manager at Whirks

Greg Henderson brings over 20 years of military experience and operational knowledge into working first-hand with his clients as the HRO Manager at Whirks. He is engaged in helping small business owners establish awe-inspiring organizations by enhancing their HR solutions to provide purpose, direction, and motivation through an innovative and personable approach. Greg was recently invited to be a member of the exclusive Forbes Human Resources Council and is a regular editorial contributor for Forbes. Host of a weekly LinkedIn video series called From Boots to Loafers, Greg draws on his past military leadership as a focal point for today’s leaders. Greg has a passion to help small business owners achieve their goals which continue to fuel Whirks’ mission for its clients and itself, to get one step better every day. Greg is married to Amanda and they have five children. When he is not in the office, Greg enjoys spending time with his family, traveling, and going on daily adventures.

Pricing:

Private Duty Featured Program of the Month: Creating a Best in Class Caregiver Culture

During this webinar, you will learn how Family & Nursing Care, a 54-year-old, $40M+ revenue home care company with over 1,300 caregivers, has earned its stellar reputation and what they’ve done to position themselves as the go-to home care agency.

They will discuss the following topics:

  • Recruitment
    • Why they’ve never experienced a caregiver shortage
    • Why caregivers want to work at Family & Nursing Care
    • Reducing cost to hire a caregiver
      • Advertising
      • Labor time to post the jobs, screening applications, phone screening, setting up interviews, interviewing, online testing, reference checking, background checks, data entry into software package and payroll, drug screening, orientation
  • Hiring processes
    • How they’ve evolved with the times, honing in most recently with COVID-19
    • Which changes they’ll continue when the pandemic ends
  • Retention/Reducing CG Turnover
  • KPIs for recruitment, hiring, and retention

Faculty

  • Neal Kursban, Family & Nursing Care

Registration:

NAHC Member: Free
Non-member: $45

Private Duty Home Care Deserves Provider Relief

The CARES Act Provider Relief Fund has been a lifesaver to thousands of health care providers across the country. Through the fund distributions, the Department of Health and Human Services (HHS) has been able to stabilize access to care during the Public Health Emergency and help preserve the health care infrastructure for the post-pandemic future. We very much appreciate Congressional action creating the fund and the swift actions taken by HHS to prioritize the distribution of the funds.

The National Association for Home Care & Hospice strongly believes direct relief funds should be provided to personal care home care providers, and we are advocating directly to congressional leadership on this issue.

NAHC firmly believes Congress must take immediate steps to provide funds to an essential part of our health care system that, to date, has not received this crucial support. Home care companies that serve millions of Americans with vital personal health care supports, such as assistance with the administration of prescribed medications, exercise programs that maintain and improve functional capabilities, hygiene, feeding, and numerous Activities of Daily Living (ADLs) are a core part of community-based health care. These services, and the dedicated caregivers that provide them, have been uniformly recognized as essential health care providers by state and federal policymakers. However, the companies that provide this care have not received any Provider Relief Fund support since the creation of the Fund, except where those companies bill Medicare and/or Medicaid.

The companies that have been left out so far do participate in many government health programs, such as the Veterans Administration and the Administration on Aging, along with providing services funded by long term care insurance and private payment from their patients. It is estimated that they serve several million senior citizens and persons with disabilities each year, avoiding the need for high-cost institutional care. We need these companies to be operating today and tomorrow to meet the needs of our growing aged population.

Support from the Provider Relief Fund would be consistent with other distributions that have occurred so far. These include distributions to home care agencies that provide this same care through Medicaid, assisted living facilities, and behavioral health providers. Similarly, HHS has provided funding supports beyond Medicare and Medicaid providers to dentists and behavioral health providers, among others. As such, the standards and structures are in place to allow these
companies to apply for funding.

As potential legislation is drafted to provide further COVID-19 PHE relief, we request that specific PRF funding be allocated for home care providers that have not previously qualified due to their not being Medicare and/or Medicaid providers. These providers have faced the same COVID-related challenges as their Medicare and Medicaid colleagues, including workforce shortages, added expenses for personal protective equipment and cleaning supplies, and lost revenue due to added caregiver time properly performing COVID precautions and increased overtime expense.

Private duty home care providers are an essential part of allowing people to remain independent, living in their own homes, and slowing the spread of the novel coronavirus, COVID-19 and its variants.

Private duty care providers have been on the front lines of the fight against COVID-19, without the recognition and support they deserve. It is long past time to remedy that.

Private Duty Home Care Deserves Provider Relief

The CARES Act Provider Relief Fund has been a lifesaver to thousands of health care providers across the country. Through the fund distributions, the Department of Health and Human Services (HHS) has been able to stabilize access to care during the Public Health Emergency and help preserve the health care infrastructure for the post-pandemic future.…

Did You Miss These 3 Private Duty Webinars?

These webinars are private duty education originally scheduled to be presented at the Private Duty Home Care at NAHC Leadership Summit in February 2022. That meeting was canceled due to the ongoing public health emergency, but the content is vital so NAHC will be presenting it to you as webinars, all of which are free to NAHC members.

1. Taking Quality Seriously in Private Duty: No Customer Left Behind

REGISTER

Free to all NAHC members!

Sponsored by Generations Homecare System

This webinar aired on February 8, 2022, as the first in the series of education from the Private Duty Leadership Summit, which was canceled due to the ongoing public health emergency. If you missed it before, you can still watch it. And it’s totally free to all NAHC members!

Quality Assurance and Performance Improvement (QAPI) is often treated as a chore we must “check off the list” to remain in compliance with regulations, but it’s much more than that. Every successful organization in the world uses some version of QAPI as a measuring tool to continue to adapt in an ever-changing environment.

Just because you don’t bill medical insurance doesn’t mean that QAPI is less important than it is for home health and hospice. Private Duty agencies have a different, and in some ways deeper, obligation to their clientele than medical providers. You’re in their homes for extended periods of time, and become involved in many areas of their lives, including their general well-being.

In this session you will learn how analyzing QA information and applying improved performance measures to the whole spectrum of service will not only enhance the quality of care you provide, but foster loyalty amongst your clients and employees.

Faculty:

  • Candyce Slusher, Owner, Slusher Consulting

Price:

  • Free to Members
    $99 for Nonmembers

***

2. Structuring and Staffing Sales and Marketing for Max ROI

REGISTER

Free to NAHC members!

Attendees will learn best practices, tools, and techniques for structuring, staffing, incentivizing, and guiding a high-performing sales and marketing team that gets results. Recommendations are drawn from Fortune 500 best practices and are scalable for providers of all sizes.

Faculty: Stephanie Johnston, President and Chief Executive Officer, Transcend Strategy Group

Pricing:
Free NAHC Members
$99 for Nonmembers

***

3. How to Build Professional Respect in Home Care Through Operations

REGISTER

Free to NAHC members!

Sponsored by CellTrak

Providing personal care services can seem like a roller coaster of emotional decisions, constant reacting, and the fight for consideration and respect in the care industry. It doesn’t have to be that way.

In this session we will break down the five keys for creating simple, repeatable systems built on the professional solutions your agency provides. You will learn how to become known as a home care authority based on the consistency of service, reliable communication, and the standard of quality and professionalism that your leadership and team delivers

Faculty:

  • Jessica Nobles, Home Care Ops, Co-founder
  • Clinton Nobles, Home Care Ops, Co-founder

Pricing:

  • Free NAHC Members
  • $99 for Nonmembers

Webinar: How to Build Professional Respect in Home Care Through Operations

Thursday, February 24, 2022 2:00 pm Eastern Register Free to NAHC members! Sponsored by CellTrak This webinar is private duty education that was originally scheduled to be presented at the Private Duty Home Care at NAHC Leadership Summit in February 2022. That meeting was canceled due to the ongoing public health emergency, but the content is…

Webinar: Structuring and Staffing Sales and Marketing for Max ROI

Tuesday, February 22, 2022 2:00 PM ET REGISTER NOW Free to NAHC members! This webinar is private duty education that was originally scheduled to be presented at the Private Duty Home Care at NAHC Leadership Summit in February 2022. That meeting was canceled due to the ongoing public health emergency, but the content is vital…

Did You Miss It? Taking Quality Seriously in Private Duty: No Customer Left Behind

REGISTER Free to all NAHC members! This webinar aired on February 8, 2022, as the first in the series of education from the Private Duty Leadership Summit, which was canceled due to the ongoing public health emergency. If you missed it before, you can still watch it. And it’s totally free to all NAHC members!…