Government Watchdogs Looking to Ding Home-Based Care Providers

With the light at the end of the COVID-19 tunnel finally visible, home-based care agencies will now have to worry about checking their peripherals once they reach the other side.

Government watchdog agencies are expected to come hard for providers in 2022 and beyond.

The Biden administration released a 68-page report Monday pertaining to the “state of labor market competition,” for instance. In that report, released by the U.S. Department of the Treasury, home health care was specifically mentioned.

“The Antitrust Division’s criminal enforcement program has led to the prosecution of long-running employer conspiracies against workers in multiple critical markets including physical therapy, dialysis, nursing and home health care services … with more active labor market investigations currently underway,” it stated.

Providers have already been indicted on counts of wage fixing and labor market allocation charges.

Yet wage and hour represents just one example of where government oversight is being ramped up for home-based care providers.

“I just hope providers understand that while those [wage-and-labor issues] are definitely things they should be focused on, payment-related investigations – broadly – continue to be a significant, and frankly, sometimes an existential threat to providers,” Matt Wolfe, a health care and public policy attorney at Baker Donelson, told Home Health Care News.

The Memphis, Tennessee-based Baker Donelson is one of the largest law firms in the Southeastern U.S.

There was a major downturn of that kind of watchdog activity during the pandemic, but it was short-lived. Those same agencies, which weren’t able to get out as much to investigate and interact with providers face-to-face, have now returned to their baselines – and then some.

The reasoning for that heightened interest is multifaceted.

Because of the pandemic lull, there’s ground to make up. Emergency flexibilities granted to health care providers also have the potential to be abused.

Finally, both personal care and home health care have been utilized more during the pandemic, with greater recognition from lawmakers and health care stakeholders.

With that spotlight comes increased scrutiny.

“As these care providers grow in recognition and gain a larger slice of the pie in health care, I think the attention that investigators pay to them is also going to continue to increase,” Wolfe said.

On top of all that, the Biden administration recently announced that the Department of Justice will appoint a chief prosecutor to deal with pandemic-related fraud and abuse.

President Biden is seeking a $36.5 million budget to hire 120 attorneys nationwide to go after fraudsters – both individuals and companies. He’s also going to request $325 million to fund 900 agents to support the FBI White-Collar Crime program, according to Ty Kelly, a shareholder at Baker Donelson.

“No. 1, you’re going to have more and more oversight and investigations related to how pandemic relief funds were used,” Kelly told HHCN. “As we know, a lot of pandemic relief funds went to health care providers. … Anytime there is an investigation into these sorts of things, you never know where it’s going to go.”

Kelly regularly defends companies involved in government investigations and high-stakes litigation. She also mentioned the anti-kickback statute as an area where investigations – and prosecutions – will increase.

“And of course, we will continue to see your typical fraud investigations, your False Claims Act investigations for billing for services not performed, billing home health care when patients are not homebound, or billing for skilled services when they actually weren’t needed,” Kelly said.

In regards to those false claims, Kelly and Wolfe both mentioned the sophistication in the tools that these watchdogs have at their disposal to identify them. As providers have invested more in artificial intelligence, analytics and data-tracking, so has the government.

That increased sophistication will likely lead to more audits and more civil investigative demands (CIDs), Kelly said.

The original approach is still relatively basic: finding agencies that have a higher percentage of certain codes, for example, making them an outlier compared to peers.

“Now I think you’re getting a lot more sophistication in the form of AI and analytics,” Wolfe said. “That will not only increase the precision with how they’re targeting providers, but it will also allow them to be more efficient. They will be able to conduct more investigations because they’re spending less time going down rabbit holes.”

There are a few things providers can do to ensure they’re not the target of an investigation, or to make sure they’re ready if they are subject to one. Putting compliance plans in place is a start. 

On the anti-kickback front, home health operators should be fastidious with compliance and make sure that their policies and procedures are clear. That can be done with marketing, especially to the types of facilities that would discharge to home health, Kelly said.

“To me, if they do nothing else, that is the first thing that they should be doing,” she said.

The emerging telehealth threat

Home health providers have been granted flexibilities related to telehealth services during the pandemic, some of which may be here to stay.

But full reimbursement is not yet available for home health providers offering those services. The aforementioned kinds of investigations could be another reason why that reimbursement doesn’t come to fruition for some time, too.

“The caution light is going off in Washington relative to telehealth services, and we’re the fall guys,” National Association for Home Care & Hospice President William A. Dombi said in February, referring to the home health sector.

As home-based care providers do begin to offer more telehealth, however, they should be cautious of the impending onslaught of investigations into those practices.

That would be even more so the case if and when telehealth is viewed as a traditional, billable visit.

“What I think we’re going to see is an uptick in investigations into telefraud,” Kelly said. “I would advise all providers of telehealth to have very, very good documentation of the visit, complexity and time.”