Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
Home health agencies and home visiting companies are employers that physicians should approach with great caution.
I recently had a physician visit my office seeking advice about his private practice. The physician shared with me that he also devoted a couple days per week to working at a physician home visiting company, where he served as medical director, reviewed documents, and oversaw mid-level providers. Although it was not the purpose of his visit, in my discussion with him I became extremely concerned about his activities with the physician home visiting company, and we ultimately ended our meeting with some serious issues to further review and discuss.
Home visiting companies and home health agencies in Chicago (where I primarily practice), as well as in cities across the country, are under increased scrutiny. Chicago is considered a hot spot for fraudulent activity in home health. According to the Chicago Tribune, in the last five years, federal investigators estimate home health agencies improperly collected at least $104 million dollars. Many agencies, physicians and others have been indicted and charged in numerous fraud schemes. The schemes may include lying about the patients they are serving or putting false tests and procedures in the patient files. Still others engage in far worse activities, including using the identities of patients to fraudulently bill and to deny patients the goods and services they need.
Home health agencies and home visiting companies are employers that physicians should approach with great caution. Such companies are often attractive to physicians who are retired, in poor health, seeking extra income or are not busy enough in their own practice. If you or someone you know is currently working for such a company or considering such a position, please keep the following in mind:
1. One of the major roles of a physician working in home health/physician staffing is to certify patients as homebound. Physicians must remember:
a. Know what the requirements are to meet the “homebound” definition. Do not certify unless the requirements are met and documented and meet the true legal requirement for homebound status. Do not merely rely on the employer’s definition or guidelines. Generally, homebound patients cannot leave the home because of the patient’s condition; the patient’s condition keeps him or her from leaving home without help (such as using a wheelchair or walker, needing special transportation, or getting help from another person); or leaving home takes a considerable and taxing effort.
b. A physician should not sign a form certifying a patient as homebound if the physician was not the one who completed the form or is not otherwise acting as a proper collaborating/supervising physician for a mid-level who completed the form. A physician should review whether requirements are met and to make sure the physician agrees with the conclusion reached by the mid-level. A face-to-face visit is always required by the physician or mid-level to certify home bound status.
c. A physician should not take direction from others when it comes to professional judgment. Many of the fraud cases involve the owners of home health businesses/physician staffing companies pressuring physicians to change wording, modify conclusions or otherwise certify individuals as homebound that do not meet the requirements. If there are indications of such activity, this is a red flag and the physician should no longer work at such company.
d. A physician should decertify patients who do not, or no longer, meet the homebound requirements. Pressure not to decertify by an employer should also be considered a red flag.
2. Physicians should be careful not to sign forms indicating that they engaged in Care Plan Oversight (CPO) for a physician visiting company, unless they actually rendered the services. CPO generally involves supervision of a patient receiving home care services and is a time-based service. Medicare requires a minimum of 30 minutes per month be expended by a physician to bill for CPO (other payers have different guidelines), which include services such as physician development and/or revision of care plans, review of subsequent reports of patient status, review of related laboratory and other studies, and communication with other health professionals involved in the patient’s care. CPO services cannot be billed when provided by office staff and the time tracked should be for activities actually provided by the physician. Unfortunately, many physicians are not familiar with the CPO requirements and regularly sign off on pre-filled CPO forms completed by staff in violation of billing requirements. CPOs are an area of heightened recent investigation across the country, and many physicians have found themselves investigated and/or indicted as a result of signing CPO forms for services not provided.
3. Physicians need to watch for schemes where their digital signature is being used and applied to medical records they have not reviewed, fill prescriptions for patients or to otherwise have the physician appear more involved in the business then they really are. A physician should know and understand how his NPI/DEA and information is being used by any third party.
Physicians should be very careful entering into arrangements with home health/physician staffing companies. Even an employment/medical director agreement, which appears to be properly written does not protect a physician from the issues described above. Pleading ignorance is not a defense, and every physician has the responsibility to ask questions and to be aware of the undertakings in which she is engaged so as not to unwittingly assist in fraudulent activities against Medicare or other payers.