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Elizabeth Hogue–Bearer of Good News


One of the industry’s patron Saints, Elizabeth Hogue has shared an interesting article involving the ability of hospitals to pay for ‘transition’ services.  On planet Julianne, all the best business deals benefit all parties involved.  This is one where hospitals, patients and home care agencies can all benefit.  Much thanks to Elizabeth for being so generous with her information.

OIG Allows Hospitals to Pay for Care Transition Services

by Elizabeth Hogue, Esq.

Hospitals are increasingly aware of the need to prevent readmissions. Although there is limited data regarding what works and what does not, it appears that certain types of care transition services; such as follow-up regarding prescription medications, appointments with physicians following discharge, etc.; may be helpful. The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services addressed the issue of the provision of these services to hospitals in Advisory Opinion No. 13-10, issued on August 9, 2013. The Opinion addresses the issue of whether a wholly-owned subsidiary of a major pharmaceutical manufacturer can assist hospitals to better coordinate care, help patients adhere to their hospital discharge plans, and avoid preventable hospital readmissions.

Specifically, the vendor will sell hospitals a package of services designed to help them avoid payment reductions associated with excess hospital readmissions. The services will be marketed to hospitals directly and through group purchasing organizations authorized to act as purchasing agents for hospitals. Agreements to purchase the services will be in writing, signed by both the vendor and hospitals, and have a term of not less than one year. The Agreement will also spell out all of the services that the vendor will provide to hospitals. The vendor will charge hospitals standard fees at fair market value. In other words, agreements between the vendor and hospitals will meet the requirements of the personal services and management contracts safe harbor or exception under the federal anti-kickback statute.

Hospitals will be able to purchase services from the vendor on a patient-by-patient basis that they expect will help reduce preventable readmission rates. Discharge planners/case managers will identify patients who may benefit from services offered by the vendor. If patients elect to receive the services, discharge planners/case managers will enter their discharge plans into the vendor’s software system.

Participating patients will have access for a twelve-hour period each day to a patient liaison who will help them understand and follow their discharge plans. For the remaining twelve-hour period each day then patient liaisons are unavailable, participating patients will be automatically transferred to a twenty-four-hour nurse hotline. Patient liaisons, who are not necessarily clinicians, will contact participating patients within forty-eight hours of discharge to ensure that they understand and will follow discharge plans.

Thereafter, patient liaisons will contact participating patients daily or at intervals selected by contracting hospitals to administer questionnaires about participating patients’ health and compliance with discharge plans. Participating patients may also answer questionnaires on the internet or through telephone interactive voice response systems. Patient liaisons will ask participating patients about medication compliance, remind them about refills, and add newly-prescribed medication to their electronic health records. Patient liaisons may also assist participating patients with various tasks, such as scheduling follow-up appointments, reminding them about scheduled appointments or helping them obtain transportation at participating patients’ own cost, providing participating patients with unbranded educational materials intended for general audiences, and providing updates to participating patients’ caregivers and primary care providers. Reports will be provided to hospitals regarding patients’ medication adherence, post-discharge physician appointment completion, readmission rates, demographics, readmitting hospitals, and secondary diagnoses.

Fees charged by the vendor for these services will include an initial flat fee for implementation services. The vendor will also charge a per-patient annual fee. Hospitals may also request additional services for which the vendor would charge separate or additional fees, based on an hourly basis plus expenses and a reasonable profit margin.

The OIG reviewed the above and concluded that the proposed arrangement is unlikely to violate the federal anti-kickback statute or to trigger the imposition of civil money penalties for the following reasons:

  • The arrangement is unlikely to lead to increased costs or overutilization of federal reimbursable services.
  • The proposed arrangement is unlikely to interfere with clinical decision making.
  • The vendor will implement a number of safeguards to prevent the proposed arrangement from being used to increase drug sales by the parent pharmaceutical company.
  • The proposed arrangement is unlikely to result in inappropriate patient steering.
  • Participating patients will designate providers, practitioners, and suppliers that he/she wishes to receive information associated with the services provided by vendor.
  • The proposed arrangements will not involve providing any rewards or incentives to participating patients that would likely influence their selection of providers, practitioners, or suppliers.

Based upon this Advisory Opinion, it appears that hospitals may pay outside vendors for services related to care transitions so long as the criteria described above are met. As long as the same safeguards are in place, hospitals may pay post-acute providers for the same types of services.

Readmission rates must be reduced and controlled. Hospitals must engage in activities to accomplish this goal and clearly need capable partners.

Patient Abandonment and Face to Face Encounters


Today I have the opportunity to share with you some wise thoughts regarding a potential risk associated with Physician Face to Face encounters that hadn’t occurred to me before. Thanks to Elizabeth Hogue, we can take pre-emptive steps to avoid liability related to patient abandonment.

Face-to-Face Encounters: Avoiding Liability for Abandonment

Elizabeth E. Hogue, Esq.
Office: 877-871-4062
Fax: 877-871-9739

E-Mail: ElizabethHogue@ElizabethHogue.net

Providers are at risk for legal liability when they terminate services to patients.  Termination of services has historically been warranted by the following circumstances, among others: violence or threatened violence, noncompliance by patients and/or primary caregivers, inability to provide adequate assistance, or inappropriateness for services.  Providers are understandably concerned about the possibility of legal liability associated with the termination of beneficial services.

Specifically, they frequently express concern about the possibility of liability for abandonment of patients.  The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS), the primary enforcer of fraud and abuse prohibitions, has indicated that abandonment of patients may also constitute fraudulent conduct.

Providers now have new concerns regarding liability for abandonment in light of requirements for face-to-face encounters.  Specifically, providers may not be paid for services rendered if patients have not had appropriate face-to-face encounters with physicians during required time periods.  It is important, therefore, for providers to understand how to terminate services without liability for abandonment.

Practitioners often speak of abandonment as though it is equivalent to termination of services.  On the contrary, patients who want to hold providers liable for abandonment must show that:

  1. Providers unilaterally terminated the provider/patient relationship;
  2. Without reasonable notice;
  3. When further action was needed.

Patients who fail to prove any one of these requirements are likely to lose their lawsuits against providers.

The second requirement of abandonment provides a key basis for avoiding liability for abandonment.  Providers will not be liable for abandonment as long as they give patients reasonable notice prior to termination of services.  The key question is: what is “reasonable” notice, especially in view of new face to face encounters?

Many providers historically viewed thirty days as the minimum number of days required for reasonable notice.  This period of time is too long for most patients, including patients who have not had required face-to-face encounters.  A more reasonable period of time for most patients, unless a specified period of notice is mandated by state statute or regulation, is probably one to three days.

After staff members agree upon a reasonable notice period, patients and attending physicians should receive verbal and written notice.  Written notices should be hand-delivered to patients’ homes.  Although it is desirable, it is unnecessary to obtain a signature verifying receipt.  Written notices to physicians should be faxed to them.

When the date for termination of services arrives, providers must terminate care as planned.  Practitioners are sometimes tempted to continue in the face of pleas from patients, physicians, and/or family members.  Providers must bear in mind, however, that their organizations, whether for-profit or not-for-profit, simply cannot afford to render unlimited amounts of uncompensated care.  The consequence of lack of attention to fiscal limitations may be the disruption or unavailability of care to many patients.

Finally, providers can defeat claims of abandonment if patients for whom services are discontinued need no further attention.  How do providers know whether further attention is needed?  Is this requirement as subjective as it appears?  On the contrary, judges are likely to make retrospective determinations about whether further attention was needed.  The basis for such determinations will probably be whether patients were injured as a result of termination.

In other words, the law is likely to conclude that no further attention was needed, so long as patients are not injured as a result of termination of services.  What kind of injury must patients prove?  Can patients who attempt to prove emotional damage only as a result of termination of services by case managers win lawsuits?

The “good news” for providers is that courts generally require proof of physical injury or damage before they will find providers liable for abandonment.  Providers must, therefore, take appropriate steps to make certain that patients are not physically injured as a result of termination of services.  In rare instances, appropriate action may include sending an ambulance to take the patient to the nearest hospital.  If the patient refuses transport by ambulance, the patient will have been contributorily negligent or will have assumed the risk, so providers are likely to avoid liability.

Now is the time for providers to educate themselves about the possibility of liability for abandonment.  Positive steps must be taken in order to prevent this type of legal liability in view of the uncertainty of the impact of requirements for face-to-face encounters.

(To obtain a complete set of policies and procedures to use in order to prevent liability for abandonment, send a check for $105.00 that includes shipping and handling made out to Elizabeth E. Hogue, Esq. to Fulfillment, 107 Guilford, Summerville, SC  29483.)

© 2011.
Elizabeth E. Hogue, Esq.  All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.

What Happened to Providers Who Violated Requirements Applicable to Payment Arrangements with Referring Physicians?


What Happened to Providers Who Violated Requirements Applicable to Payment Arrangements with Referring Physicians?

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

Many post-acute providers have established relationships with physicians who also make referrals to them. Such relationships may include payments for services provided as Medical Directors or consulting physicians. They may also include leases to rent space from referring physicians.

Generally, providers that establish such relationships must meet the requirements of:

the federal anti-kickback statute, and applicable exceptions or “safe harbors;”

-the federal so-called Stark laws and applicable exceptions; and

-requirements of state statutes and regulations in all states in which they do business.

The Stark laws do not apply to hospices.

Failure to meet these requirements has resulted in enforcement actions against a number of providers. Below are some examples of such actions.

San Jacinto Methodist Hospital (SJMH), Texas, agreed to pay $21,025.62 for allegedly violating the Civil Monetary Penalties Law provisions applicable to kickbacks and physician self-referrals. The OIG alleged that SJMH entered into an arrangement with a physician for a Medical Director position, which included the physician occupying hospital space for private use and utilizing hospital personnel for clerical assistance related to the physician’s private practice patient visits without any contractual entitlement to do so.

MedCare Home Health and its owner Wilfred Braceras, Florida, agreed to pay $178,000 for allegedly violating the Civil Monetary Penalties Law provisions applicable to kickbacks. The OIG alleged that MedCare and Braceras paid kickbacks to a “coordinator” to induce the referral of home health care patients. The recipient of the kickbacks was not an employee, had no contract, and was paid based on the volume and value of the referrals. Braceras’ home health care chain; B&B Holdings Enterprises, Inc. d/b/a South Eastern Health Management Association, Inc.; also entered into an addendum to the existing corporate integrity agreement.

The King’s Daughters’ Hospital and Health Services, Indiana, agreed to pay $391,500 for allegedly violating the Civil Monetary Penalties Law provisions applicable to kickbacks. The OIG alleged that the Hospital’s compensation arrangements with employed physicians failed to comply fully with the Stark law’s restrictions on productivity bonuses. Specifically, the physicians were compensated for services that they did not personally perform.

Valerie Tolley d/b/a Health Care Medical (HCM), Mississippi, agreed to pay $100,000 for allegedly violating the Civil Monetary Penalties Law provisions applicable to kickbacks. The OIG alleged that HCM made payments and attempted to make payments of kickbacks in exchange for direct and indirect patient referrals.

Ivinson Hospital, Wyoming, agreed to pay $635,000 for allegedly violating the Civil Monetary Penalties Law provisions applicable to kickbacks. The OIG alleged that Ivinson paid prohibited remuneration to physicians in the form of free rent, equipment and furnishings, leases at less-than-fair-market value, reimbursement for medical-director services in excess of fair-market value, and reimbursement in excess of the requirements of an income-guarantee agreement.

Bioscrip, Inc. and Bioscrip Pharmacy, Inc. (Bioscrip); agreed to pay $795,000 for allegedly violating the Civil Monetary Penalties Law provisions applicable to kickbacks and prohibited physician self-referrals. The OIG alleged that Bioscrip stationed a pharmacist from its West Hollywood, California pharmacy at two physician practices and that, while on-site at the physician practices, the pharmacist provided services for the pharmacy with the practices as well as services that benefitted the physician practices without a lease. These services included those that otherwise would have been provided to patients by the physician practices. Patients of the physician practices, including those counseled by the on-site Bioscrip pharmacist, were referred to and filled prescriptions paid for by the Medicare Part D program at a Bioscrip pharmacy.

Spartanburg Regional Healthcare System, South Carolina, agreed to pay $780,000 for allegedly violating the Civil Monetary Penalties Law provisions applicable to kickbacks. The OIG alleged that Spartanburg provided information technology (IT) resources to non-employee physician groups without written contracts in place. Specifically, Spartanburg reported that it failed to document IT agreements with ten different physician practices/groups and also failed to bill and collect for those IT resources.

Providers must be scrupulous about compliance with all applicable requirements when they establish relationships with referring physicians that involve payments to them. The costs of non-compliance may be high, as demonstrated above.

©2009. Elizabeth E. Hogue, Esq. All rights reserved.

No portion of this material may be reproduced by any means without the advance written permission of the author.

Vendor or Provider?


One of home care’s greatest advocates, Elizabeth Hogue, Esq. has been generous enough to share her thoughts with our readers regarding the treatment of post-acute care providers as providers. Many larger institutions guard information regarding their patients like the queen’s jewels. The worst case scenario is poor coordination of care resulting in suboptimal care at home following a hospitalization. Elizabeth’s legal expertise and analysis of the differences between Vendors and Post-Acute Providers can help you understand your rights as a provider in order for you to obtain the information you need to care for patients.

Post-Acute Providers Are Not Vendors

Elizabeth E. Hogue, Esq.

Office:  877-871-4062

Fax:  877-871-9739

E-Mail:  ElizabethHogue@ElizabethHogue.net

Some hospitals and skilled nursing facilities (SNF’s) refer to post-acute providers as “vendors” and require them to follow the policies and procedures related to “vendors.”  These may include, for example, a requirement for representatives of post-acute providers to sign in when they arrive at hospitals and SNF’s to coordinate services in hospitals’ Purchasing Departments.

On the contrary, post-acute providers; such as home health agencies, home medical equipment (HME) companies, hospices and private duty home care agencies; are not “vendors” and should not be treated like “vendors.”  They are, instead, fellow providers.  Vendors are manufacturers and distributors of supplies and equipment that are utilized by hospitals and SNF’s on the premises of institutions.  Post-acute providers rarely sell equipment and supplies that are used by facilities on the premises.  In fact, the users of post-acute providers are patients, not hospitals and SNF’s.

When hospitals and SNF’s lump post-acute providers in with equipment and supply vendors they are, at the least, being disrespectful of these types of providers.  Such treatment may be demeaning to post-acute providers.

Some hospitals are asking post-acute providers who are categorized as vendors to pay fees to hospitals in order to appear on a vendor list.  Such payments are likely to constitute illegal kickbacks in exchange for referrals and cannot be required.

In addition, restrictions that hospitals and SNF’s may appropriately put on the activities of vendors while on the premises are inapplicable to post-acute providers.  Vendors may, for example, be prohibited from going to other areas of institutions besides purchasing departments unless they are accompanied by staff of facilities.

No such restrictions should be applied to post-acute providers.  In fact, it is inappropriate to restrict the activities of post-acute providers who:

Have received referrals of patients; or

Cared for patients immediately prior to their admission to institutions

Under these circumstances, post acute providers should be permitted access to patients, their families, and information about them as part of the discharge planning process.

It is important to note that referrals for post-acute services do not have to come from physicians.  They may come from patients, their families, physicians, case managers/discharge planners, or other sources.  Referrals may also be received by post-acute providers, either verbally or in writing.  When post-acute providers are acting on verbal referrals, they should, however, document the name of the person who made the referral and the date and time at which it was received.

Of course, patients have the right to freedom of choice of providers.  This right to freedom of choice of providers includes the right to self-refer to any type of post-acute provider.  There are a number of sources of this right, as follows:

1) All patients have a common law right, based upon court decisions, to control the care provided to them, including who renders it.  Thus, when patients, regardless of payor source or type of care, voluntarily express preferences for providers, their choices must be honored.

2) Federal statutes of the Medicare and Medicaid programs guarantee Medicare beneficiaries and Medicaid recipients the right to freedom of choice of providers.  (Medicaid recipients may have waived this right if they participate in a waiver program.)  Consequently, when Medicare patients and non-waiver Medicaid patients voluntarily express a preference for a home health agency, these choices must be honored.

3) The Balanced Budget Act of 1997 (BBA) requires hospitals to develop a list of home health agencies that are:

a) Medicare certified;

b) Provide services in the geographic areas where patients reside, and;

c) Ask to be on the list.

In addition, if a hospital places the name of an agency on the list in which it has discloseable financial interests, the relationship between the hospital and the agency must be disclosed on the list.

This list must be presented to all patients who may benefit from home health services, regardless of payor source, so that they can choose the home health agency that they wish to provide services to them.

4) Hospital Conditions of Participation (COP’s) that became effective on October 1, 2004, include the basic requirements of the BBA described above.

5) Court decisions, such as the opinion in Assured Home Health, Inc. v. Providence Health System, also support patients’ right to freedom of choice of providers.  In this case, Assured claimed that the hospitals in the System regularly violated patients’ right to freedom of choice and “steered” patients to agencies owned by the System.  This case was settled when the System agreed to institute additional safeguards to protect patients’ rights, including monitoring of the hospital’s practices by outside third parties.

A patient who received services from a post-acute provider immediately prior to admission to an institutional setting may, of course, choose to receive services from a different provider upon discharge.  If a patient does not choose another provider, his or her care should be continued by the same provider with which the patient is likely to have a continuing provider-patient relationship.

Likewise, patients who are referred to post-acute providers may, of course, choose different providers any time they wish to do so.

Patients greatly value the services that post-acute providers offer.  Hospitals and SNF’s, therefore, should not treat them like “vendors.”

©Copyright, 2008.  Elizabeth E. Hogue, Esq.  All rights reserved.  No portion of this material may be used in any form without the advance written permission of the author.

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