Whenever we talk about pre-hospice care or palliative care programs, it's important first to have a very strong grounding in the anti-kickback and anti-inducement prohibitions under federal law. Read this expert information given by our speaker in a hospice conference to know more.
The anti-kickback statute makes it a criminal offense and it is very important to emphasize that there criminal penalty for knowingly and wilfully offering, paying, soliciting or receiving any remuneration, anything of value to induce referrals of items or services that are reimbursable by a federal healthcare program such as Medicare.
So, just to parse it out a little bit, we’re talking about both the giver and the receiver having criminal risk in entering into a relationship that’s intended to induce a referral into the Medicare program. That’s why we have to take a look at anything that’s a pre-hospice program that involves pre-care for example or a palliative care program that may not be fully billed to somebody. We really have to take a look at that from the standpoint of the anti-kickback statute.
There are essentially two ways that federal anti-inducement laws can apply to hospice hospitals and palliative care programs. But the first is what would be an inducement to a referral source for example, if a hospice provides staffing to a skilled nursing facility in exchange for referrals or inducement from the referral sources.
Now, that is less common in hospice. What we usually see is that there's some potential that the hospice would be providing something of value to a referral source. And the nursing home situation is probably the most problematical because we know that this is a risk area that the OIG particularly looks at.
So, we always want to take a look at this - are we giving anything of value to our referral source like coming in and consulting for free or providing staffing. I've heard some horror stories that hopefully will make you shake your heads as well such as a hospice sending its nurse aides into the skilled nursing facility to provide appropriate care really for hospice patients, but sometimes sending them in for a full shift regardless of how many patients the hospice or hospital has in that nursing home.
And then if they have extra time and they're done providing the care under the care plan for hospice hospital patients, they're giving bath to the non-hospice patients in the facility. Of course, this is not permissible. And that's the kind of thing that can implicate the anti-kickback statute.
If a hospice is part of a larger healthcare system, this provision does not apply because if you're all part of one system, then you can't induce a referral from some other part of the same entity.
Now, there are other issues though that a system has to be concerned about. And if the system -together the hospice and the non-hospice portions of the system are collaborating to provide palliative care program and they're providing services free or at reduced cost, that could also be an anti-inducement problem.
Healthcare Guidelines: Inducements directly to Medicare beneficiaries
It is something that’s given for free or below market value to patients who may later qualify for Medicare. So, if all of the services provided in the palliative care program are free or reduced and not ever billed to a patient for example, then that could implicate anti-inducement prohibitions to because these are Medicare beneficiaries who later may come in to the Medicare hospice program.
There are a number of tools for avoiding anti-kickback and fraud violations. The first one is the Office of the Inspector General, the OIG Compliance Program Guidance for Hospices. And if that’s not readily available to you, we recommend that every hospice read it and read it carefully and read it often.
It goes over all of the elements that the government looks at when analyzing a potential fraud situation. And then for hospice, it lists a large number of specific risk areas that could apply to a hospice. Now, this compliance program guidance is written for virtually every different healthcare provider type, but the risk areas change. So, the risk areas for hospice are different than they would be for hospital or for a home health or for a DME company for example.
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