False Claims Act (FCA) cases are a leading legal concern for hospice providers as the industry comes under ever-increasing regulatory scrutiny. Knowledge of the law will be the key for hospices to both prevent and build a defense against these kinds of claims, according to health care attorney Nick Jurkowitz of the Fenton Law Group.
In the fourth episode of Hospice News’ Elevate podcast, Jurkowitz discusses the False Claims Act and how hospices can ensure compliance.
“If you’re ignorant of the law, you’re much more likely to break it or violate some rules than if you know what it is,” said Jurkowitz during the podcast. “First and foremost is having an understanding and knowledge of what’s allowed and what’s not allowed.”
California-based Fenton Law Group, LLP is a large health care law firm that has represented hospice companies in False Claims Act and other cases, as well as consulting on mergers and acquisitions. The law group aims to help health care industry companies, including home health and hospice providers, to develop preventative and proactive legal strategies.
Jurkowitz represents and advises hospices and other health care providers on litigation and regulatory matters. He indicated that fraud would be a top regulatory concern hospices faced in 2020, and will continue to be one of the most significant legal hurdles looking ahead to 2021.
In a highly regulated industry, hospices are in a targeted area for close scrutiny. FCA actions pertaining to hospices most commonly focus on questions of a patient’s eligibility for those services. A 2019 report from the law firm of Bass, Barry, and Sims indicated that a leading cause of fraud cases involves allegations of hospices billing Medicare for services for which patients were not eligible. This resulted in several multi-million dollar settlements in recent years, with amounts ranging from $1.24 million to $8.5 million.
Documentation errors and omissions, live discharges and lengths of stay beyond six months are the main red flags that could bring regulators to a hospice’s doorstep, according to a 2019 report from Optima Healthcare Solutions. Ensuring your policies and procedures are up-to-date and consistent with current law and regulation is a critical strategy, according to Jurkowitz.
Complete and accurate documentation is essential to ensure compliance, particularly when it comes to certification and recertification of a patient’s hospice benefit and proving the patient’s eligibility. Staff of all levels play a role in a hospice’s regulatory compliance.
“You want to be careful to make sure you’re doing things the right way: having the right people; having a good education to your team; [and] having a good compliance program [with] people who are monitoring this, reviewing this and making sure that things are being done appropriately,” said Jurkowitz. “You want to have really good oversight over your employees.”
While careful compliance can provide the best offense in preventing regulatory scrutiny, things can still slip through the cracks and ultimately lead to serious problems like an audit or litigation. In the event that a hospice becomes involved in a case, they must be prepared to prove that any discrepancies were matters of clinical disagreement or an error, and be ready to refund payment for the claims in question.
“With the False Claims Act, knowledge is required — either knowingly or with disregard, or reckless disregard,” Jurkowitz told Hospice New. “An attorney would help advise you if you want to get a handle on what you’re being accused of. Did you know that you did something wrong? Demonstrating that this was an innocent mistake made within a complicated issue could be a major defense to a lot of the penalties that come with the False Claims Act. Of course, you’d have to pay the money back.”