LEGAL ASPECTS OF MARKETING FOR HOME HEALTH …

1 1 New England home Care Conference & Trade ShowLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES: Raffa/Hold-Weiss 2012 home HEALTH AGENCIES & HOSPICES:ADVANTAGES, CONSEQUENCES AND HOW THE AFFORDABLE CARE ACT HAS IMPACTED THE RULESP resented by:Connie A. Raffa, , Hold-Weiss, RPA-C, 1, 2012 Mashantucket, CTArent Fox LLPW ashington, DC | New York, NY | Los Angeles, MARKETING issues in home HEALTH and MARKETING practices that are compliance risk areas and/or cost report solutionsLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES2 Raffa/Hold-Weiss 2012 Recommend of OIG Advisory is policing illegal MARKETING practices?What are the sanctions?

2 Good MARKETING to get the is MARKETING ? does MARKETING ? is the target? and when does MARKETING occur? is it MARKETING , and when is it educational LEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES3 Raffa/Hold-Weiss 2012activities or public relations? Test: related to patient activity. 42 is MARKETING a LEGAL issue? Kickback to referral sources Inducements to patients Steering of patients to certain create a favorable impression of the Company s services and practitioners in the community and enhance the possibility of new business fl dltihiWhat are the Goals of MARKETING ? LEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES4 Raffa/Hold-Weiss 2012referrals and recruit workers and educate the decision makers, ,referral sources, patients and are the Hazards of MARKETING ?

3 Is promises are messages are or illegal inducements are ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES5 Raffa/Hold-Weiss or others are # MARKETING practices that are compliance risk areas, and/or cost report of OIG Advisory ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES6 Raffa/Hold-Weiss 20123 home HEALTH OIG Risk Department of HEALTH & Human Services Office of the Inspector General Compliance Program Guidance for home HEALTH Ai8/7/98 LEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES7 Raffa/Hold-Weiss 2012 Agencies 8/7/98 31 Risk Areas details are in the footnotes of the Compliance Program Guidance Risk areas that impact MARKETING are:#6, 14, 20, 24 and to Referral SourcesRisk #6: home HEALTH AgenciesRisk #9.

4 HospiceHome HEALTH Agency (or Hospice) incentives to actual or potential referral sources ( , physicians, hospitals, home HEALTH & Hospice Risk Areas That Impact MarketingLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES8 Raffa/Hold-Weiss 2012pote t a e e a sou ces (eg,p ysca s, osptas,patients, etc.) that may violate the anti-kickback statute or other similar Federal or State statute or regulation.* For Hospice, includes improper arrangement with Nursing HomesFederal and State Anti-Kickback LawRisk #6 HH and #9 Hospice (cont'd): Incentives to Referral , among other things, remuneration in return for ordering, or for arranging for or LEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES9 Raffa/Hold-Weiss 2012g,g grecommending the purchase or order of, any item for which payment may be made in whole or in part under a federal healthcare financing program.)

5 42 1320a-7B(b); 4 Risk #6 HH and #9 Hospice (cont'd): Incentives to Referral : Comply with federal safe harbor for 25 different business Federal and State Anti-Kickback LawLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES10 Raffa/Hold-Weiss 2012relationships. For example, safe harbors for space rental, personal service and management contracts, equipment rental, referral services, discounts, employees, group purchasing organizations, investment interests, warranties, waiver of beneficiary co-insurance and deductibles, electronic and HEALTH records items and services, etc. 42 #6 HH and #9 Hospice (cont'd): Incentives to Referral Issues: Providing payments to entities or individuals to referHome HEALTH Risk Areas That Impact MarketingLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES11 Raffa/Hold-Weiss 2012 Providing payments to entities or individuals to refer patients for services.

6 Providing free staff, rental payments for office space, meals and entertainment, training, or back-up staff to referral sources. Providing services for free or reduced rate to the patient, or potential patient/family. Payments to physicians to sign plans of care for home HEALTH or certifications for #6 HH (cont'd): Incentives to Referral Sources. Aides referring patients in exchange for hiring or a HEALTH Risk Areas That Impact MarketingLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES12 Raffa/Hold-Weiss 2012 Aides changing agencies and bringing patients with them from one agency to OIG Special Fraud Alert home HEALTH Fraud at: #14: Billing for unallowable costs of home HEALTH intake : Claiming unallowable costs of home HEALTH intake coordination on cost report.

7 SNF & Hospital COPs and State Law. SNF Rate and DRG reimburse for D/PHome HEALTH Risk Areas That Impact MarketingLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES13 Raffa/Hold-Weiss 2012 SNF Rate and DRG reimburse for D/P. Discharge Planning vs. Intake Coordination. How can MARKETING activities disguised as intake coordination become discharge planning? Free discharge planning activities are kickbacks. OIG Advisory Opinion 11-06. Safe harbor if state law permits delegation. List of post hospital services to patient without preference and steering; disclose financial interest. Cost report #20: Improper patient solicitation activities and high pressure MARKETING of uncovered or unnecessary : home HEALTH Risk Areas That Impact MarketingLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES14 Raffa/Hold-Weiss 2012 Strategy: No prohibited conduct ( , free gifts or services).

8 MARKETING should be clear, correct, non-deceptive and fully informative. Risk #24: Compensation programs that offer incentives for number of visits performed and revenue : home HEALTH Risk Areas That Impact MarketingLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES15 Raffa/Hold-Weiss 2012 Strategy: Bonuses should be based on objective criteria set forth in a policy and paid to bona fide employee (IRS 20 criteria).6 Compensation for safe harbor for W-2 equivalent as part of employee goals and basis for annual describes bonus criteria include compliance with admission criteriaLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES16 Raffa/Hold-Weiss 2012compliance with admission Advisory Opinion No.

9 98-9. Nurses were paid add-on to hourly wage based on the number of HEALTH plan members admitted to hospital. OIG held that a bona fide employee safe harbor applied, and therefore no #25: Improper influence over referrals by hospitals that own home HEALTH : home HEALTH Risk Areas That Impact MarketingLEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES17 Raffa/Hold-Weiss 2012 Federal law requires that hospitals provide patients with a list of post-hospital service providers to ensure patient Report Issues for HHA & HospiceCost Report Issues Attestation & DRA Discharge Planning vs. Patient Coordination. Public Relations vs. ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES18 Raffa/Hold-Weiss 20127 Public Relations vs.

10 MarketingAllowable vs. Non-Allowable Advertising CostsTest is whether costs are related to patient care? costs aimed at educating the community about hospice, or presenting a good public image about your hospice (Public Relations) are an allowable costs aimed at increasing referrals/ LEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES19 Raffa/Hold-Weiss costs aimed at increasing referrals/ patient utilization are not an allowable cost. An example is Reimbursement Review Manual settlement June OIG Risk Department of HEALTH & Human Services Office of the Inspector General Compliance Program Guidance for Hospice 10/5/99 LEGAL ASPECTS OF MARKETING FOR home HEALTH AGENCIES & HOSPICES20 Raffa/Hold-Weiss 201210/5/99 28 Risk Areas details are in the footnotes of the Compliance Program Guidance Risk areas that impact MARKETING are:#1, 2, 9, 18, 19 and 21 Hospice Risk Areas That Impact MarketingRisk #1: Uninformed consent to elect the Medicare Hospice :Are marketers explaining elements of an informed consent?