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"Candy.jpg"Letting a home health agency decide whether patients need home health care
is like asking your kid, “Do you think you need some candy?”
You can pretty much tell what the answer is going to be before you get
the question out of your mouth.

Fraud in the home health arena has been plagued by exactly that sort of
conflict of interest. Home health agencies make money from their patients,
so it’s just not a good idea to let them decide whether or not the
potential patient needs home health care. Someone who knows the patient
and his or her medical needs — and who has no financial stake in
whether they get home health care — should make that decision.

To try to cut down on fraud in the home health industry, Medicare made
a common-sense rule: a patient cannot start receiving home health care
until a doctor certifies that the patient actually needs it. But the Department
of Health and Human Services (DHS) says that not every home health agency
(HHA) is complying.

Despite the Rule, DHS Says the Fraud Is Still Draining Government Coffers

DHS conducted a study on whether home health services were complying with
Medicare’s rules. The DHS report,
Limited Compliance with Medicare’s Home Health Face-to-Face Documentation
, was published in April 2014, and it was loaded with bad news:

“For 32 percent of home health claims that required face-to-face
encounters, the documentation did not meet Medicare requirements, resulting
in $2 billion in payments that should not have been made.”

According to the Office of Inspector General for DHS, Medicare is overpaying
home health companies by $2 billion – a whopping 32% of all claims
that require that a doctor or medical professional meet with the patient
in person.

The Clear Problem: Home Health Agencies Should Not Decide Whether Patients
Need Their Services

Before Medicare tightened up its rules, some home health agencies were
certifying that patients needed home health care without bothering with
the niceties – like, say, having a doctor see and examine the patient.
Some HHA’s had managed to find doctors who would certify that patients
needed home health care even though the doctors had never treated or even
seen the patients. While some of these doctors at least looked at medical
records, not all of them even did that much; sometimes the home health
agencies filled out the certification forms and stuck them under a doctor’s
nose for him to sign off on whatever the home health agency had written.

The conflict of interest is pretty obvious. When a home health agency is
deciding whether it needs to provide (and be paid for) services to patients,
it is pretty likely to rule in its own favor. Medicare’s fear is
that it will then be paying for services that are
not medically necessary.

Medicare’s Solution: More Stringent Rules

Over the years, Medicare has strengthened its rules about what has to happen
before a patient can receive home health care. Today, a medical practitioner
must actually see a patient face-to-face before a doctor can certify that
the patient needs home health care. The certifying doctor does not have
to be the one who had the face-to-face encounter; a non-physician practitioner
or the patient’s acute or post-acute care physician can have the
encounter, so long as they then inform the certifying physician:

The face-to-face encounter must be performed by the certifying physician
himself or herself, by a nurse practitioner, a clinical nurse specialist
(as those terms are defined in section 1861(aa)(5) of the Act) who is
working in collaboration with the physician in accordance with State law,
a certified nurse midwife (as defined in section 1861(gg)of the Act) as
authorized by State law, a physician assistant (as defined in section
1861(aa)(5) of the Act) under the supervision of the physician, or, for
patients admitted to home health immediately after an acute or post-acute
stay, the physician who cared for the patient in an acute or post-acute
facility and who has privileges at the facility.

42 CFR § 424.22(a)(1)(v).

This “face-to-face patient encounter” has to occur “no
more than 90 days prior to the home health start of care date or within
30 days of the start of the home health care.”


Furthermore, “[r]ecertification is required at least every 60 days,
preferably at the time the plan is reviewed, and must be signed and dated
by the physician who reviews the plan of care.” That meeting does
not have to be face-to-face, however.


Lee’s peers have named her a Georgia SuperLawyer every year for two decades.