The attorneys of Joseph Potashnik & Associates provide a wide range of legal services to clients operating hospice and home health agencies (HHA). Hospices and HHA face unique legal and regulatory problems that require a very thorough understanding and experience. Our attorneys understand the law and have experience which allows us to help our clients navigate the complex universe of regulatory compliance.

Amongst the matters in which we represent hospice and HHAs operators are

• Medicaid and Medicare enrollment, certification, and compliance
• HIPAA compliance
• Stark and Anti-Kickback
• Federal and state requirements
• OIG compliance requirements
• Medicare and Medicaid audits and appeals (RAC, ZPIC, OMIG)
• Private payor audits
• Licensure Issues
• Transactional and contractual support
• Compliance programs and policies
• Government Investigations

Compliance Lawyers For Home Health Agencies

HHA face unique legal issue compared to other healthcare providers. The Office of Inspector General issued the Compliance Program for Home Health Agencies which contains more than thirty risk areas. Some of these areas relate to fraud and abuse. These areas must be addressed in HHA compliance policies and procedures.

Some of the major risk areas HHA face are:

• Billing for services which were not provided
• Billing for services which were not medically necessary
• Kickback and Stark violations, which include incentives to referral sources such as physicians, hospitals, etc.,
• Duplicate billing
• Billing for services provided by unqualified or unlicensed staff

HHA are expected to develop their own policies, which are specifically guided towards enforcing applicable state and federal laws and regulations which control the submission of claims to Medicaid and Medicare and Medicare cost reports. There are several major areas of risk in this area, which out attorneys can address in drafting the compliance program:

• HHA should only submit claims for services it believes are medically necessary and were ordered by a doctor or another licensed practitioner.
• HHA should develop ways to ensure that the homebound status of a Medicare beneficiary is verified, and that the specific factors qualifying the patient as homebound are properly documented.
• HHA must ensure that claims for home health services are ordered and authorized by a physician.
• HHA must ensure that all claims satisfy the essential need of a qualifying service.
• HHA should have written policies and procedures that ensure compliance with applicable laws and regulations.
• HHA should have policies that help verify that the services they provide to residents of assisted living facilities are appropriate for Medicaid and Medicare reimbursement
• HHA are expected to have written policies that ensure prevention of fraud, abuse, and waste.

Home Health Agencies and Anti-Kickback and Self-Referral Issues

Anti-Kickback and the Stark law prohibition against self-referral are some of the most important legal concerns faced by HHA operators. Failure to develop effective policies that ensure compliance with both statutes and corresponding state laws may lead to severe consequences. Simply drafting a compliance policy may not be sufficient. The rules change and the OIG issues advisory opinions on a regular basis. HHAs should continuously assess their compliance programs to make sure they are up to date with the ever-changing and complex universe of federal and state regulations.

Fraud and Abuse: Investigations oh Home Health Agencies 

Our attorney represent hospice and HHA providers in criminal and civil investigations. Most issues that trigger such investigations involve allegations of fraud and abuse such as billing for medically unnecessary services, services that were not provided or billed incorrectly.

New York OMIG Audits of Home Health Agencies

New York-based HHA are continuously targeted by the Office of Medicaid Inspector General (OMIG) for potential fraud and abuse. OMIG audits of HHA are a common occurrence and our attorneys represented numerous clients facing such audits. OMIG is authorized to pursue civil and administrative enforcement actions against any individual or entity that engages in fraud, abuse, or illegal or improper acts or unacceptable practices perpetrated within the medical assistance program. OMIG also refers suspected instances of fraud for possible criminal prosecution. Some of the main issues OMIG audits of HHA focus on are:

• Missing or insufficient documentation of hours and visits billed. If there is no chart, the aide failed to document hours of service billed, or professional staff failed to document the visit, that portion of the paid claim that was not documented will be disallowed.
• Billing for services in excess of ordered hours and visits. If the HHA billed more hours/nursing or therapy visits than plan of care/medical orders authorized, the paid claim for the hours/visits exceeding the order will not be paid.
• Billing Medicaid before services were authorized
• Failure to Obtain Authorized Practitioner’s Signature Within Required Time Frame (signed medical orders are required within 30 days of the start of care, a change in the plan of care, or recertification.
• Plan of Care/Orders Not Signed by an Authorized Practitioner
• Inadequate Home Assessment Abstract and Comprehensive Assessment.
• Missing Plan of Care or Order
• Supervision Visit of Home Health Aide (HHA) Not Performed Within Required Time Frame
• Failure to Bill Medicare or third party first.
• Billed for Services Performed by Another Provider/Entity
• Billing Incorrect Codes
• Failure to Conduct Required Criminal History Check
• Minimum Training Standards Not Met for the Home Health Aide
• Minimum Training Standards Not Met for the Personal Care Aide