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If you sleep through therapy, did it really happen?

The Justice Department answers a resounding “no”, and warns
skilled nursing facilities not to bother to bill Medicare for services
that are not skilled – such as when the patient is not even awake.
In 2016, whistleblowers helped the Justice Department recover more than
$100 million from Kindred RehabCare, Wingate Healthcare, THI and other
SNFs accused of several kinds of fraud, including billing Medicare for
services that were not “skilled”. The whistleblowers –
a physical therapist and former rehab manager and an occupational therapist
— received nearly $24 million for their help in stopping the fraud that
was bleeding taxpayers.

I represent whistleblowers who want to stop SNF fraud. Many times therapists
or coders can see that services are being billed the wrong way, but they
may not understand just how the fraud is working. I am writing a series
of blogs to help SNF employees understand more about how
skilled nursing facility fraud works, in the hopes we can stop more of it.

Medicare Only Pays for “Skilled” Services

Medicare will only pay for “skilled” healthcare services –
in other words, ones that require medical skill to perform. While that
may seem obvious, the Department of Justice
accused Kindred RehabCare of claiming its therapists had provided “skilled” services
to patients who were actually “asleep or otherwise unable to undergo
or benefit from skilled therapy (e.g., when a patient had been transitioned
to palliative end-of-life care).”

To meet Medicare’s definition of a “skilled” medical
service, the service has to be ordered by a physician and must:

  • Require the skills of qualified technical or professional health personnel,
    such as registered nurses, licensed practical nurses, physical therapists,
    occupational therapists, and speech-language pathologists or audiologists; and
  • Must be provided directly by or under the general supervision of these
    skilled nursing or skilled rehabilitation personnel to assure the safety
    of the beneficiary and to achieve the medically desired result.

Skilled Nursing Facility (SNF) Billing Reference, HHS CMS, ICN 006846 (Nov. 2015).

SNFs bill based on the time spent helping a patient, and Medicare has given
SNFs specific guidelines about what does and does not count as “skilled” time:

Do not include unbillable time, such as time for:

  • changing;
  • waiting for treatment to begin;
  • waiting for equipment;
  • resting;
  • toileting; or
  • performing unskilled or independent exercises or activities.

Local Coverage Determination for Outpatient Physical and Occupational Therapy
Services, National Government Services, Inc. (L26884) (rev. 2/1/2011),

How “Skilled Services” Fraud Works Under Parts A and B

For Medicare Part A, only “skilled” minutes count for the MDS,
and hence the RUG rate:

Only skilled therapy time (i.e., requires the skills, knowledge and judgment
of a qualified therapist and all the requirements for skilled therapy
are met) shall be recorded on the MDS. In some instances, the time during
which a resident received a treatment modality includes partly skilled
and partly unskilled time; only time that is skilled may be recorded on
the MDS. Therapist time during a portion of a treatment that is non-skilled;
during a non-therapeutic rest period; or during a treatment that does
not meet the therapy mode definitions may not be included.

Long-Term Care Facility Resident Assessment Instrument 3.0 User’s
Manual, DHS CMS, version 1.13 at page O-19 and O-27 (Oct. 2015). If the
SNF counts time that the provider is not actually using a skill, then
the SNF is counting too many minutes and the RUG rate may get bumped up.

For Medicare Part B, the rule means that a SNF may only count “skilled”
minutes toward units.

Do you have questions about how you can stop SNF fraud? Contact me at
[email protected].


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