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Amidst the Office of Inspector General’s (OIG) compliance program guidelines is a warning. The OIG has put hospices and nursing homes on notice that it intends to crack down on questionable referral arrangements, and offered guidance on how the two can work ethically together.
Specifically, the compliance program cites the following hospice-nursing home risk areas:
• Overlap in services that a nursing home provides, which result in insufficient care provided by a hospice to a nursing home resident.
• Hospice incentives to actual or potential referral sources that may violate the anti-kickback statute or other similar government regulation.
• Improper relinquishment of core services and professional management responsibilities to nursing homes, volunteers, and privately paid professionals.
• Providing hospice services in a nursing home before a written agreement has been finalized.
• Hospices that overlap services provided by nursing homes. According to the OIG, this often leads to hospices providing insufficient care to nursing home residents.
"Recent OIG reports found that residents of certain nursing homes receive fewer services from their hospice than patients who receive hospice services in their own homes," the compliance program guidelines stated. The guidelines were published in the July 21 Federal Register (64 FR 39,155-39,168 ).
The OIG continues: "Upon review, it was found that many nursing home hospice patients were receiving only basic nursing and aide visits that were provided by nursing home staff as part of room and board when hospice staff were not present."
The answer OIG says is for hospices and nursing homes to coordinate care, and for hospices to retain professional responsibility for services furnished by nursing home staff. This would include the dispensing of medication and personal care.
In a comment letter to Inspector General June Gibbs Brown, the National Hospice Organization (NHO) in Arlington, VA, argues that nursing facility employees are akin to family caregivers in the home and should be allowed to perform certain tasks as long as the hospice retains professional management of the patient.
"The overlap in the services provided by the SNF [skilled nursing facility] and hospice do not necessarily result in insufficient care, even if the hospice providing less direct care to a patient residing in an SNF than to a home patient," wrote Karen Davie, NHO’s president.
• Incentives to referral sources. Among the many risk areas the OIG identified in its explanation of why hospices need to implement a compliance program, Brown included hospice incentives to actual or potential referral sources, such as physicians, nursing homes, and hospitals, that may violate the anti-kickback statute or government regulations.
According to the OIG, investigators have observed instances of potential kickbacks between hospices and nursing homes where unlawful influence can affect patient referral.
OIG is concerned that hospices are paying nursing homes more for room and board than the nursing homes would receive if patients were not enrolled in hospice. In Medicaid programs, for example, the normal procedure should be that Medicare pays the hospice at least 95% of the daily nursing home rate and the hospice is responsible for paying the nursing home for patient room and board.
"Any additional payment must represent the fair market value of additional services actually provided to the patient that are not included in the Medicaid daily rate," instructs the OIG.
The compliance program guidelines also included concern over arrangements with nursing homes because a nursing home can choose which hospices they want to partner with, leaving the arrangement vulnerable to fraud and abuse.
• Improper relinquishment of core services and professional management. OIG reminds hospice providers that core services — nursing, medical, social services, and counseling — must be provided directly to the patient by the hospice’s employees. And while other non-core services may be provided under contractual arrangements, the hospice must still retain professional management of those services.
• Providing hospice services in a nursing home before a written agreement is finalized. According to the OIG, a patient residing in a skilled nursing facility or nursing home may elect the Medicare hospice benefit if:
— The residential care is paid by either the beneficiary/ private insurance or Medicaid if the patient is dual-eligible.
— The hospice and nursing facility have a written agreement that clearly states the hospice takes full responsibility for the professional management on the patient’s hospice care and the facility agrees to provide room and board.
The OIG compliance program guidelines also offer specific examples that might cause investigators to believe there is cause for fraud and abuse concern. These include:
— offering gifts or provide free services to patients or their relatives; physicians; or nursing facilities;
— offering nursing homes below market goods;
— paying above market value for room and board in a nursing facility;
— offering free care to patients in a nursing home;
— providing and paying staff to perform services in nursing homes that otherwise should be performed by nursing home staff.
In general, Davie objected the singling out of hospice-nursing home arrangements. Her letter stated that the OIG guidance "criminalizes hospices who admit SNF patients," and asked that the OIG remove language that refers to those arrangements as being vulnerable to fraud and abuse. n