Regulators are keeping a closer watch for possible kickback schemes among hospices.
Along with False Claims Act cases, anti-kickback violations are among the most commonly occuring forms of hospice fraud and abuse. Hospices need to have a careful eye on compliance when it comes to structuring referral arrangements to ensure they in compliance with the law, according to Meg Pekarske, hospice attorney and partner at Husch Blackwell.
“In false claims cases against hospices, oftentimes something related to physician relationships can be alleged — like whether you’re paying for referrals or how you’re working with physicians that may lead to a [patient] admission or retention of ineligible patients,” Pekarske said in a recent episode of the law firm’s podcast. “If you have more physician arrangements than you have patients, it might look what some might call ‘commercially unreasonable,’ like you’re overpaying for physician services and contracting with them to encourage and referrals.”
Regulators may be paying closer attention to hospice physician arrangements as they diversify their services with upstream care, according to Andrew Brenton, senior associate at Husch Blackwell.
“A lot of our hospice clients are exploring ways to get further upstream and provide non-hospice services, whether it be palliative care, home health services, or just really any type of ‘upstream care,’” Brenton said in the podcast. “As they get more into that area, Stark Law could apply, depending on what specific services they are or physician in this case is provided.”
The Stark Law, prohibits physicians from referring Medicare patients to other providers with whom they have a financial relationship, according to the U.S. Centers for Medicare & Medicaid Services (CMS).
Certain designated health services (DHS) areas under regulatory attention have historically included home health services, durable medical equipment (DME) and supplies, therapy services, outpatient prescription drugs and some hospital services.
To help prevent incidents of noncompliance, operators must be careful in how they establish referral relationships.
“Speaking about the anti-kickback statute in particular, if you are [a provider] carving out specific services and paying for those services at a flat, hourly rate, then I would avoid tying compensation directly to admitting patients or certifying patients as terminally ill,” Brenton said. “I think [that] would raise some eyebrows, rather than paying for an admission, you might pay for an assessment of whether the patient is terminally ill and the hospice physician in fact decides that they are or not.”
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