Here Today, Gone Tomorrow: Home Health Providers May See Spike in Whistleblower Lawsuits

Home health providers have had to navigate through a slew of regulatory changes over the past three months. Some of those changes will end up permanent, while others are bound to go away.

Non-physician certification, telehealth technology and new infection control protocols are examples of long-lasting changes linked to the COVID-19 virus. Meanwhile, cash flow and paperwork relief are examples of temporary trends likely to fade.

To be successful both now and later, home health agencies need to have a clear sense of what regulatory changes will stick. If they don’t, they’ll likely be headed for a world of legal trouble, experts caution.


“I was attending a presentation recently by plaintiffs’ attorneys talking about the expected uptick in whistleblower or False Claims Act litigation as a result of the COVID-19 pandemic, and so I think that is unfortunately a sign of things to come,” Matt Wolfe, a partner at law firm Parker Poe, told Home Health Care News.

Temporary regulatory trends

Broadly, the leniency that’s been granted to providers during the COVID-19 crisis at state and federal levels should not be taken for granted or viewed as permanent, as there’s no guaranteeing any of the changes are here to stay.

Leniencies include tweaks to the Review Choice Demonstration (RCD) in places where it had already taken effect. It also includes extensions on reporting and data-submission requirements, among other flexibilities.


Generally, the leeway granted in terms of documentation can take a turn at any second. Providers should be wary of becoming lackadaisical on back-end protocols, according to Wolfe.

“Let’s say it’s July 1 when some documentation requirement goes back in effect,” Wolfe said. “From an auditing perspective, they are going to say, ‘Well, if it’s July 1, and that change hasn’t been made — then you’re on the hook, just as you were before.’ … Whenever they flip the switch back, they expect there to be 100% compliance.”

That also includes the handling of government funding, as the tune around what was originally thought to be “no strings attached” provider relief has changed. So far, tens of billions of dollars have been distributed from the Provider Relief Fund, and that’s not including money from the Paycheck Protection Program (PPP) that went to non-Medicare providers.

Depending on how the economy recovers, the hole COVID-19 dug in the federal budget could be deep.

“One of my concerns as someone who represents health care providers is … that at some point you’re going to see sort of a changing of the guard and federal agencies saying, ‘Well, did all of that money need to go out the door, and is there a way to get some of that back?” Wolfe said.

Changes likely to last

One of the biggest buzz terms during the COVID-19 crisis has been personal protective equipment (PPE). Providers have been forced to scramble for masks, gloves and other necessary resources to keep their workers and patients safe.

Particularly for non-medical home care providers, consistent PPE usage was not the norm before COVID-19. But chances are it’s here to stay for as long as the COVID-19 crisis lasts — and most likely after it ends.

“I think that with home-based care providers, there was this recognition that you can’t have just-in-time inventory when it comes to PPE,” Wolfe said. “I think you’re going to see providers build up stock piles themselves. … And I think you’re also going to see — on the state level and perhaps on a federal level — more investment in stockpiles to prevent the run on it.”

BrightStar Care and HCR Home Care are examples of agencies that have invested in large PPE inventories to protect themselves from shortages in the future.

Consistent PPE usage moving forward isn’t just a procedural change, however; it’s also a financial one. Home-based care providers have had to spend far greater than face value in many cases to secure PPE since February.

“I think it’s important that home health providers make the case that those heightened costs need to be factored into their reimbursement [moving forward],” Wolfe said, referring to home health agencies in particular.

Something that reduces the demand on PPE is greater remote flexibility for providers. Almost immediately after a public health emergency was declared in mid-March, the Centers for Medicare & Medicaid Services (CMS) granted more remote freedom to providers.

“The ability for a telehealth visit to meet the face-to-face criteria — that’s been really helpful. It just makes sense,” Joanne Cunningham, executive director of the Partnership for Quality Home Healthcare (PQHH) told HHCN. “That should continue. Providers should have more flexibility on something like [that]. It’s just a no brainer that should continue.”

On a similar note, the unprecedented spike in telehealth has been one of the most drastic changes that COVID-19 has forced the industry to make. Medicare-certified home health agencies are still unable to collect reimbursement for telehealth visits as they do for in-person visits, but that doesn’t mean that agencies shouldn’t adjust to what is certainly a permanent change in the way health care providers operate.

“I think that one thing that impacts home-based care is the growth and the permanence of telehealth — I don’t think that that is going away,” Wolfe said.

CMS Administrator Seema Verma echoed that sentiment last week, saying she “can’t imagine going back” to the same amount of in-person visits during a virtual event with Stat News. On home health providers’ end, reimbursement for telehealth is still a work-in-progress.

National Association for Home Care & Hospice (NAHC) President William A. Dombi told HHCN that telehealth reimbursement is at “the top of the [priority] list” for the advocacy organization.

“I think there’s a reasonable chance that we could see a permanent extension of current waiver standards and also an expansion of telehealth availability,” Dombi said. “Some sort of Congress legislation is going to be introduced shortly in that regard.”

But even without reimbursement, telehealth’s permanence means it needs to be implemented into home health providers’ plans moving forward.

“One thing that hasn’t been talked about a lot during the COVID-19 pandemic is value-based care reimbursements, which go a long way to incenting providers to focus on engagement of patients, regardless of what the specific mechanism is,” Wolfe said. “It could be telehealth. It could be virtual patient communications. It could just be increased data collection and analysis.”

In terms of home health-related changes, the “homebound” requirement has also likely been subjected to a permanent makeover. Currently, patients who are considered “at-risk” due to their conditions can qualify as “homebound.”

“This is a really smart public policy, and I think it also points to the need for more flexibility on the homebound requirement,” Cunningham said. “I think that’ll be a big lesson learned when we’re at a time where we’re looking in the rearview window. [The former homebound requirement] — that’s a very restrictive, artificial requirement that prevents people from getting into the home health system when they need those services.”

Another change that was passed through The Coronavirus Aid, Relief, and Economic Security (CARES) Act was the ability for non-physicians to certify home health eligibility. That change is similarly a boost for providers that will likely be here to stay.

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