Home Health & Hospice Week

Audit and monitor your staffing arrangements -- before the feds do.

Just when you thought compliance with the False Claims Act (FCA) put enough on your plate, Congress has passed another rule that could leave you in regulators’ crosshairs.

As part of the follow-up to the 2009 stimulus package, Congress passed the Fraud Enforcement and Recovery Act (FERA), which expands the FCA’s reach in three critical areas: subcontracting,

Medicaid, and overpayments, according to Robert W. Markette Jr., a partner with Gilliland & Markette LLP in Indianapolis.

Bad news: FERA provides “an even larger hammer to hit providers with,” Markette told listeners in the Eli-sponsored audioconference, “Prepare for Unseen Liabilities: FCA, FERA, and Their Impact on Health Care.”

But your agency doesn’t have to take the hit, Markette assured conference participants. Here’s how the FCA will affect you -- and what you can do to stay on regulators’ good side.

Your Intent Doesn’t Matter, FERA Says

Congress amended the FCA because of several federal cases in which subcontractors avoided false claims liability because they didn’t actually submit any Medicare claims -- the main contractors did. “The U.S. Senate was outraged by these rulings,” said Markette, and the result was FERA, as well as the False Claims Correction Act (H.R. 1788), which is still moving through the House.

Under FERA, Congress changed the intent  requirement in the FCA so that you no longer have to  “get paid” to trigger the FCA. “You just have to submit a false document that is material to the claim,” he explained. “That is a very, very broad definition.”

Warning: You also don’t have to intend to defraud the government anymore; FERA makes it so that you only have to “knowingly” submit claims that might be inaccurate, meaning you deliberately ignored or recklessly disregarded the possibility that you might have submitted false documentation.

For example, in one case billing staff assumed that every therapy session lasted 50 minutes, even though that wasn’t always true, and billed

Medicare accordingly. The billing staffer reasoned that longer sessions would balance out shorter ones.

Verdict: “The court held that the provider was submitting claims with a reckless disregard for their truth, to the extent they exceeded a number of hours beyond which he could not have provided services,” said Marquette.

Confirm Your FCA Compliance In 2 Steps

Just because FERA makes the FCA a much broader statute doesn’t mean you can’t maintain your compliance, Markette asserted.

Step #1: You must make sure your agency has a compliance plan in place that accounts for these changes to the FCA. The goal is to avoid false claims in the first place, Markette pointed out. And even if you already have a plan in place, you should “review it in light of these changes,” he said. Step #2: Keep an eye on your subcontractors’ claims, too. You must audit and monitor your subcontractors’ claims, Markette stressed. Ask them if they have a compliance program, and if you’re receiving claims from them, “make sure they are watching what they’re doing,” he said. If you have a compliance hotline, make sure your subcontractors know about it. “You’d rather hear about problems from their employees than from the DOJ,” he noted.

Watch for: Your staffing arrangement services are a particular area of concern, Markette warned agencies and hospices. “Staffing often includes parttime and over-time staff, and while therapy services were a routine area of concern for the OIG even before FERA, now it is an area with more FCA peril,” he warned.

And you must encourage your subcontractors to audit their own claims they submit through government contractors just as they would any Medicare/Medicaid claims. “Even without the intent to defraud, if [they] are reckless in submitting claims to a contractor, you’re in trouble,” he said.

Resources: Read FERA at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_public_laws&docid=f:publ021.111.pdf.

Listen to Markette’s audioconference at www.audioeducator.com/conference-FERA1310?trk=WTCI189C.