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Posts from the ‘The 2012 Agency’ Category

Try Pink on for Size

pretty in pinkI try to read everything I can by Daniel Pink.  His books are sold under the business heading at Amazon but they go far beyond business as he chronicles human behavior in afast changing world.  His books challenge what is intuitive and each of his counterintuitive positions is backed up by research.  The studies are pretty entertaining all by themselves.  This week’s delight was To Sell is Human.  He points out that 1 in 9 people have a job in sales and so do the other 8.

If you are interested in what he has to say, by all means, buy his book.  Today, I am going to cut to the chase and offer some advice blatantly stolen from Mr. Pink’s latest book.  Operating on the assumption that our job is to sell thepatient on  new behaviors, we are marketers.  Just don’t take any money or other remuneration in kind from your patients.  That’s a really bad idea unless you think that a quiet room with three meal a day, no bills, free healthcare and the occasional conjugal visit is better than seeing 9 patients a day and charting till midnight.

Imagine for a minute, that I am trying to teach you how to document.  That shouldn’t be hard to imagine.  We struggle together through the distasteful language of wound descriptors and review what a Medicare covered skill is.  Then I ask you how likely you are on a scale of 1 – 10 to use this knowledge in your daily documentation and you respond with a very enthusiastic 7.

What would you predict my next question to be?  Last week, I might have asked what it would take to get you up to a 9 or 10.  This week, I would ask, why not a 5 or even 4?  What is about documentation that its importance scores greater than a 4?

And you tell me. And while you do so you are confirming in your mind why it is important. And the reasons you conjure up are the ones that are important to you.   I want you to document well so your agency can get paid and hire consultants.  You want to document well so that your patient is well cared for and to keep your name out of a lawsuit.

Using this same technique, consider the CHF patient woofing down fries.  Everyone knows that French fries without sale are useless.  So, you teach the patient and the family about sodium and you suggest that he go without eating fast food a period of just one week.  How likely, you ask, on a 1 – 10 scale is he to comply?  When he offers a half-hearted 5, ask him why not a 2 or a 3.

As he answers, listen carefully to his payoffs.  The patient doesn’t want to ‘maintain his weight without no more than a 2 pound weight gain or loss over 60 days’.  The patient wants to feel better, rest better, have more energy and be less confused.  As he explains to you why the fries may not be the best choice he is also hearing the advice from the one person in the world he trusts more than anyone – himself.

I hope that somebody takes it upon themselves to try this some time soon and report back to us how it worked.  Wouldn’t it be sweet to have another tool to add to our teaching repertoire?  Everyone else is getting better at what they do.  Why not nurses?

Let me know how it turns out.

The Improvement Standard

Have you ever been told that no matter how sick your patient is, the Medicare Home Health Benefit does not cover chronic care?  If you are my client, you have and I certainly didn’t make it up.

As it turns out, CMS has identified the need to offer a little clarification on that requirement.  Attorneys from the Center for Medicare Advocacy, Vermont Legal Aid and the Centers for Medicare & Medicaid Services (CMS) have agreed to settle the “Improvement Standard” case, Jimmo v. Sebelius.

In a Nutshell

Skilled Nursing and Therapy services may be provided to a patient to maintain the patient’s present condition or prevent further deterioration if:

The skilled services are of sufficient complexity to require the skills of a nurse or therapist

The individualized assessment does not indicate that the services can be performed safely by an unskilled person

Effective Date

The effective date of this ‘change’ January 18, 2011 which is the date the lawsuit was filed.

Because the practice of denying beneficiaries who would benefit from skilled services to maintain their current condition or prevent further deterioration has never been legal, this isn’t an actual change in coverage.  It was merely a little misunderstanding and as noted, clarity from CMS is on the way along with an Educational Campaign for providers, contractors and adjudicators.

If you have been denied for claims related to a patient’s failure to show improvement since January 2011, appeal them.  Fill out a reconsideration form and attach the text of the settlement agreement.


In order to qualify for maintenance skilled services, the document emphasizes repeatedly the need for an ‘individualized’ assessment to reflect the needs.  Be careful in offering long term services on a routine basis but never discharge anyone who requires continuing skilled care.

This requirement will not be met by offering long term packaged skills provided as a result of a generic assessment.  You will be denied if you routinely offer ongoing range of motion services to all stroke patients.  You may be covered if a stroke patient has an orthopedic defect that would render range of motion to be a high risk endeavor for an unskilled person.

More Information

Visit the Center for Medicare Advocacy for more information.  And leave a comment about how you think the Improvement Settlement will affect your agency.

The Supreme Court’s Non-Ruling

I think we all agree that there is nothing more interesting than a 200+ page ruling from the second highest court in the land.  (The first highest court is a basketball court on the fifth floor of the Supreme Court, three floors above the courtrooms.)  The real question to us a nurses and providers of care paid for by Medicare is what, if anything does the ruling mean to us.

Maybe nothing.  We still get up in the morning, take care of patients or assist those who do, bill for care and maybe even get paid.  The rules affecting us written in the ACA for the most part have already been enacted. The lovely face to face encounter we all embraced with open arms when it was announced is probably the greatest contribution affecting home health and hospice directly.

For those of you who do not share my passion for the Supreme Court, here’s the cliff notes version.  The Affordable Care Act was introduced under Congress’s authority to govern ‘commerce’.  Commerce  involves the sale or exchange of goods for money or other goods.  When I buy a car, the dealer has to abide something called a ‘lemon’ law which is a ridiculous use of a word that describes a fruit, a color and a can make you salivate just by reading it twice.  (See?)    When I buy a house, the seller must disclose certain facts to me regardless of how unpleasant they are such as history of flooding or termites.

What Congress cannot do is force me to engage in commerce.  In other words congress can dictate certain terms of my transactions involving cars or houses but they cannot force me to buy a car or a house.

Make no mistake.  The nine justices on the Supreme Court are exceptionally bright individuals.  They do not make laws or enforce them.  Their ONLY job is to determine if rulings by lower courts fall within the guidelines of the US Constitution.  You remember that little document with all the signatures that talks about life and liberty and such?  Good, because a lot of our lawmakers seem to think it’s obsolete.

The justices said that if Congress is going to make people spend money or give it to the government, it doesn’t matter what it is called, it serves as a tax.  So the ‘penalty’ imposed by the ACA for not purchasing insurance is actually a tax. A rose by any other name….  I wonder if there would have been more public outcry against the ACA if the American public knew it was a tax?

Are you still with me?  Stay awake or I will get out the squirt gun with ice cold water and wake you up.  A recap:

  1. The Affordable Care Act proposes to make people buy insurance or pay a penalty.
  2. Congress thought they could do this under their powers to govern ‘commerce’.
  3. The Supreme Court disagreed and said it was really a tax.

Why does this matter?  Here’s what you have all been waiting for, folks…..

You cannot repeal a tax until it is implemented.  There is no prepealing of taxes.

So, we end up with the biggest punt in the history of United States Justice.  The Supreme Court of the United States did not rule on the constitutionality of the Affordable Care Act.  They ruled that they couldn’t rule because the penalties (aka taxes) had not been implemented yet and until they are, there is no repeal.

So, in the next several months, as the two parties are headed towards the 2012 election, nothing is really settled at all.  That means that anyone who has any interest in proving the value of the ACA must show the American people how much money they are saving the United States citizens and take their attention away from that little three letter word every voter hates:  tax.

There is only one way that I know to do that in such a short time frame.  It involves automatic weapons shooting ADRs at you so fast, you don’t have time to come up for air.  All those ZPIC results will likely come back this summer with near 100 percent denial rates extrapolated into millions and millions of dollars.  Arrests will be frequent and very well publicized.  And the beauty of it all is that no appeals or overturned decisions will be forthcoming until after the election.

Or, I could be wrong.  It happens.  Normally, I do  not relish being wrong but this is one occasion when I will very satisfied with misjudging the intentions of the feds.  If I am not wrong, the standard is no longer excellence in clinical documentation.  You must be perfect.

Good luck with that.

The Gimme’s

There is nothing in the world that I hate to see more than the ‘gimme’s’ – you know those denials that should have never happened.  It is especially painful to see them in documentation that otherwise met all Medicare criteria.  The good news is that these are preventable.

  1. MD failed to date his signature. 
    1. To reduce these denials you do have legal avenues to pursue.  For 485’s, keep a stack of attestations statements at the desk of the employee who receives and or files the orders.  When she notices that a date is missing, instruct her to copy the 485 and bring it to the DON or marketing department for rapid return to the MD.  If you do this as soon as it is received, the MD will remember signing it and will be less likely to refuse to sign.
    2. On all other forms, reverse the Signature and Date lines.  Make the date line stand out. 
    3. Pay a bounty for all undated signatures found in the clinical records.  If your home health aides came in one weekend and found 40 orders without signatures and you paid them $25.00 for each signature, it would still be less than one episode.  Who do you want your money to go to?  Loyal employees or back to CMS after you worked hard for it.
    4. Look into electronic signatures.
  2. Missing documentation
    1. In some patients, a single visit note can downgrade a chart to a LUPA.  Worse, you cannot demonstrate that you followed orders.  If an order is missing for a skill, then the visits for the skills are discounted, as well.
  3. No end in sight for daily visits.
    1. If you are below age 40, you may not be familiar with this reg but it is indeed a regulation.  Any time a patient is seen daily by the nurse for a period of 21 days or longer, there must be an end in sight to skilled care.  The only exception is diabetic patients.  Consider a patient that requires daily wound care and you provide it every day for 60 days don’t get paid for it.  You’re looking at a denial of 8k to 10k.  That’s a lot of consulting hours that you could have received from us.
  4. Face to Face Documentation
    1. Write a letter to all of your physicians explaining very clearly this condition of payment.  Furthermore, advise the MDs that you are aware of other agencies who do complete the Face to Face documentation for their signatures and in doing so, the docs may be unwittingly participating in Medicare fraud. 
    2. For physicians who have been late and uncooperative with face to face documentation, send someone to the MD’s office with a blank form at the time of the next referral and wait for it to be completed and signed before admitting the patient.  If it takes too long, start practicing the violin or, if you are an accomplished violinist, the tuba.
    3. If an MD has not returned the form and you have no other independent verification that the visit was made, prepare an HHABN for the patient and discharge them.  Explain to the patient that they absolutely can continue home health care services but they will be responsible for payment as their physician has not met the Medicare Conditions for Payment.
    4. If there is independent verification that the visit was made – written instructions, a copy of a prescription, etc., turn it over to the agency administrator.  On admit, look for these things!
    5. Do NOT become violent with the MD.  Legislation is being introduced in several states that will relax the penalties for Doctocide if lack of Face to Face documentation is used as a defense but thus far none of the new laws have been implemented. 
  5. Unlicensed Staff
    1. This happens very rarely but it is a nightmare when it does.   If you find out that a physician was not licensed in your state and your state did not allow physicians from other states to sign orders, every patient you have admitted to that doc is unbillable.  Worse, state Medical Practice acts vary.  Do not assume that because you did something in VA that it is okay to do in Montana.  Look it up.
    2. Similarly, Registered Nurses and Therapists who admit patients and have allowed their license to lapse have created documentation which determined an episode payment that is not billable. 
    3. This happens so rarely but when it does, it can cause total devastation to an agency.  Worse, it is usually not an oversight but a nurse or MD who has not disclosed that their license has been revoked.  This is easy to fix by having all of your clinical staff run and print their own licensure verification at the beginning of each quarter.  Hold their patients if they do not comply.  Get the office to verify MD’s every 3rd referral or once a month, etc.

Effective this year or maybe last, (who knows anymore with all the changes in health care), any provider who receives money from Medicare in error has sixty days to return it.  Failure to do so will elevate that erroneous claim to the status of a ‘false claim’ and the penalty is triple the amount of the original claim.

I hate the Gimme’s but if I worked for  Palmetto or one of the other MACs I would love them.  Once an undated signature is found, reviewing the rest of the chart becomes unnecessary.  On to the next.  But remember, I hate the denials resulting from a ‘Gimme’ but not as much as the agencies who end up on focused review because of the Gimmes or the owners who must have that conversation about trade school vs college with their kids.

Mandatory Reading

Every day I work to help my clients provide better care at lower costs so that we can all make a decent living.   I have no issue with making money in healthcare.  In fact, I am proud to get paid for work that ultimately helps patients.  There is no law against making money.  That is not to say that there aren’t any laws that affect us.  If it has not come to your attention that healthcare is a highly regulated industry, then you are probably not reading this.  Finding the on/off button on the computer would require more observation skills than you have.

Just to be clear, let me clarify the following regarding Physician Face to Face Encounters in Home Health.

  1. The physician must write his or her own narrative.  Alternatively, he may dictate it and his staff may type it.  A qualified NPP may perform and document the encounter but the certifying physician must sign beside the NPP.  Make no mistake, you are not a qualified NPP.
  2. The Face to Face encounter is a condition of payment.  Failure to follow the conditions of payment may result in credible allegations of fraud.  Fraud may result in large financial penalties or jail and a great deal of embarrassment.
  3. The encounter must occur within 90 days prior to admission or within 30 days post admission.  This does not mean that you are committing fraud if the signed F2F is not on the chart within 30 days post admission.  If you sent the form out with the initial plan of care that went out late, it is very possible that the F2F will not be on the chart at day 30.
  4. On the other hand, if a patient was NOT seen within the time frame, you should discharge the patient using the appropriate documentation (ABN) and let the patient know why.  Be very certain that the patient was in fact seen by the MD if you choose to wait for it.  Alternatively, you could get your careplans out on time.
  5. When my clients’ referral sources steer their referrals to the agencies that don’t make them worry about ‘all the bureaucratic paperwork bulls***’, a competitive edge is created against which ethical agencies cannot compete.
  6. If a physician signs said bureaucratic paperwork and a visit had not been made, you have found yourself an accomplice in fraud.  Understand this.  The Feds want you more than the doc because even the wealthiest docs don’t bill as much as a home health agency does and it is not a condition of payment for MDs.
  7. The right FBI agent will not disclose that to the doctor.  Instead, the FBI will convince the MD that capital punishment is a very real possibility unless he or she rats you out.  Consider that referral source who will sign anything you put in front of him or her a potential witness in your next fraud case.
  8. If being morally superior is not enough incentive for you to follow the rules, then consider that while most people get away with it, some do not.  Those who do not will readily tell you that it is a good idea to follow the rules before you attract the attention of the Feds.
  9. If being morally superior is not enough and you are willing to take the chance of being on a federal radar, there is always the possibility that I personally will find out who you are.  If that happens, you will wish  you were caught by the FBI because I am not nearly so nice.  Ask Bill Borne.
  10. Don’t mess with my clients.  They are trying to survive by doing the right thing.

Chances are the people who circumvent the rules to make life easier for physicians and steer referrals away from your agency will never get caught. That’s the truth. Nobody has a policy or talks openly about it. Instead, bonuses and positions are contingent upon the amount of claims billed and so a real incentive to take shortcuts presents itself and pleading ignorance is a valid option.  If a visit was made on the day documented on the F2F, it would be very difficult to prove that the MD didn’t write the narrative.  So that leaves agencies with the choice of doing something that violates the conditions of payment and probably never getting caught or losing referrals.  Are you starting to get why my mood has gone south?

I help a lot of people who have done things resulting in the appearance of fraud.  I help people who have actually submitted fraudulent claims.  I have not ever nor will I ever help anybody submit a fraudulent claim.  I would like to tell you that it is because I am morally superior but the truth is, it just isn’t necessary to take even the smallest risk.  Sick people will always be around and their will always be ways for us to improve care.  In fact, if we did all that we were capable of, CMS and Congress would be at our doors asking us how we wanted our money – direct deposit or cashier’s check.

Do the right thing, y’all.  I don’t like being angry.  And remember, it is all about me.

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