The Department of Justice (DOJ) aims to use its Elder Justice Initiative to pursue more criminal charges in nursing home investigations. Typically, the DOJ uses civil lawsuits to pursue False Claims Act violations against nursing homes. Toni Bacon, a DOJ associate deputy general, explains the shift: "We need to go after cases civilly because they [are] providing grossly substandard care and, in the appropriate case, refer it for a parallel criminal prosecution."
At the HCCA Compliance Institute held in Las Vegas April 15-18, Keynote Speaker and HHS Inspector General Dan Levinson announced the OIG's new Compliance Resources Portal.
Now, compliance officers can find all of the OIG’s compliance resources on one page.
The resources include:
- Provider Compliance Resources and Training*
- Advisory Opinions
- Voluntary Compliance and Exclusions Resources
- Special Fraud Alerts, Other Guidance, and Safe Harbor Regulations
- Resources for Health Care Boards
- Resources for Physicians
- Accountable Care Organizations
* Compliance Program Guidance is housed here.
Soon, the OIG will be posting a new resource: the OIG Toolkit to Identify Patients at Risk of Opioid misuse.
If you are looking for criminal, civil or state enforcement actions, civil monetary penalties, exclusions or corporate integrity agreement enforcement, those update are still located under the Fraud tab.
Chemed Corporation, Vitas Hospice Services LLC, and Vitas Healthcare Corporation entered a $75 million settlement with the government to resolve false claims allegations. Vitas, the biggest for-profit provider of hospice services in the nation, allegedly “knowingly submitted or caused to be submitted false claims to Medicare for services to hospice patients who were not terminally ill” between 2002 and 2013. The DOJ also accused Vitas of awarding bonuses to employees based on the number of patients on hospice, regardless of need.
In addition, Vitas was accused of billing Medicare for continuous home care services that were not necessary, not provided, or did not meet Medicare requirements. Like with hospice services, Vitas allegedly set corporate goals for billing continuous home care services, regardless of patient need.
According to the Complaint, “Vitas regularly ignored concerns expressed by its own physicians and nurses regarding whether its hospice patients were receiving appropriate care.” Complaint, page 3. The Complaint also says the company’s own auditors knew of the problem – but changes were not made.
Let’s look at the data
On September 12, 2014, the OCR received a complaint alleging that the Spencer Cox Center disclosed sensitive PHI information including HIV status, medical care, sexually transmitted diseases, medications, sexual orientation, mental health diagnosis and physical abuse. St. Luke’s-Roosevelt Hospital Center Inc., which operates the Spencer Cox Center, entered a resolution agreement and corrective action plan with the OCR for possible HIPAA violations and has paid a $387,200 fine.
A Simple Mistake?
The OCR investigation found that St. Luke’s disclosed PHI of two patients by faxing PHI to the employer of one patient and faxing PHI to an office where the second patient volunteered. The OCR stated that St. Luke’s failed to reasonably safeguard the patients’ PHI from “intentional or unintentional disclosure.”
The OCR’s resolution agreement requires St. Luke’s to:
- Review and if necessary, revise, its policies and procedures concerning the uses and disclosures of PHI including mailing, faxing or other electronic PHI transmission.
- Distribute the policies and procedures to new hires and current employees, and obtain a signed compliance certification from each workforce member.
- Assess, update and revise the policies and procedures at least annually.
- Review and revise training programs pertaining to the safeguarding of PHI.
- Train new and existing employees on PHI safeguards.
- Review training at least annually and when there are updates needed to address changes in Federal law or HHS guidance, or any issues discovered during internal audits or reviews.
- Block PHI access to any employees that has not certified receipt of safeguarding PHI policies and procedures.
This Has Happened Before
In 2010, a St. Louis man filed a lawsuit alleging that Quest wrongfully disclosed his HIV status when it faxed his lab results to his employer. The patient’s doctor wrote the patient’s work fax number on a lab order, so that office staff could fax the order to the patient at work. The patient took the order to Quest, who ran the labs, and faxed the results to the patient at work. Quest mistakenly believed the fax number was written on the order so that Quest would fax the results to the patient’s employer. Six months after the fax was received, the patient was terminated.
The doctor argued that the lab results did not reveal the patient’s HIV status. And, the employer claimed it already knew the patient was HIV positive, and terminated his employment for financial reasons.
Still, Quest had to pay to defend this lawsuit. It is easy to imagine the dire consequences when a fax is misdirected, especially when that fax contains sensitive information.
Could This Happen To You?
The OCR resolution agreement provides a roadmap for all providers to address similar issues. This settlement is one example of how a mistake can lead to a hefty HIPAA fine. Use your HIPAA Security Risk Analysis process, plus HIPAA Walk-Through audits, to identify areas where your employees could be making inadvertent or sloppy mistakes that could jeopardize patient confidentiality.
The DOJ recently announced the biggest criminal health care fraud case ever to be brought against individuals. The DOJ filed conspiracy, obstruction, money laundering, and health care fraud charges against an owner of 30+ nursing homes, a hospital administrator, and a physician's assistant.
These three individuals are accused of defrauding the Medicare and Medicaid programs of $1 billion.
Yes, you read that right: 3 people. $1 billion.
The DOJ alleges that these three individuals billed Medicare and Medicaid for medically unnecessary skilled nursing services. They are also accused of taking illegal kickbacks from other providers, who in turn rendered medically unnecessary services to these patients.
This example hopefully seems egregious, but should have even the most ethically-minded compliance officers asking:
Do we know the claims we submit to Medicare and Medicaid are medically necessary?
How do we know?
Can we prove it?
Your compliance auditing program can help you verify your claims are reasonable and appropriate:
- Conduct medical necessity audits of your claims and medical records. If this task seems burdensome, start with a small sample size and a quarterly audit, and work up to monthly audits with a larger sample size.
- Use the results of the medical necessity audits to provide documentation education to your staff.
- Monitor your PEPPER data at least quarterly, conducting chart reviews where warranted.
Topics: Penalties and Enforcement
On June 30, the Department of Justice passed an interim final rule that gave False Claims Act penalties a big raise. Here's what you need to know:
Yesterday, the Office of Civil Rights (OCR) announced a $750,000 HIPAA Privacy Rule settlement with an orthopedic practice that failed to enter a business associate agreement (BAA) with a business associate.
A breach report revealed that the orthopedic practice gave x-ray information for more than 17,000 patients to a company that transfers x-ray images to electronic media, and then harvests the silver on the x-ray films. The problem with this arrangement is that the electronic media company had access to the practice's PHI - and yet there was not a business associate agreement in place.
Silos are for farmers - not health care organizations.
While we don't know how this particular problem happened, often these types of HIPAA violations occur when officers and managers work in "silos:" without talking to each other. For example, a new employee in the medical records department releases records without a proper authorization, because they didn't think to ask the Privacy Officer what to do. Or, IT and the Administrator decide to buy CNA kiosks, without discussing encryption and other security measures with the Security Officer. Or, a department head sends PHI out for storage or processing without asking the Privacy Officer for a BAA.
What You Can Do.
- Remove silos. Structure your contracting and purchasing process so that your Privacy and Security Officers have a seat at the table BEFORE decisions are made. Likewise, recognize that individuals making changes to technology or processes need to communicate changes to your HIPAA and compliance officers, so risk can be assessed and management programs can be implemented.
- Use your compliance committee meetings wisely. Does your compliance committee meet quarterly, and listen while the compliance officer reads the meeting agenda? If there's no discussion, you have a missed opportunity. Use these meetings to share information about emerging risks and upcoming contracts and deals. By getting committee members in the habit of including each other in big decisions, you can avoid costly communication breakdowns.
- Implement a BAA management system. Are you confident that all business associates have an up-to-date BAA in place? There should be a spreadsheet inventory of every business associate, and the date the BAA was in place. Also use a business associate due diligence process to monitor business associates' HIPAA practices and ensure your PHI is safe.
For more information on how to break down silos and improve compliance processes, click here.
From the archives... Originally published January 26, 2015, and back by popular demand:
HIPAA penalties are getting bigger and bigger, and are almost always issued for inadvertent mistakes. MPA monitors the Office of Civil Rights (OCR) HIPAA enforcements, and breaks down the top HIPAA hazards—and how you can stay out of hot water.
Well-meaning employees take work home to meet deadlines, or exceed performance expectations. When this involves PHI, employees with good intentions can create a very bad problem. How do you protect the privacy and security of PHI when it leaves your facility?
A hospital entered a $1,000,000 HIPAA settlement after an employee left documents containing PHI on the subway, including PHI for patients with HIV/AIDS. The documents were never recovered, which means no one knows if they were improperly used.
What You Can Do.
Decide if you want to allow employees to bring work home. If
so, clearly define how this can be done. It is a good idea for paper PHI to stay in your facility. Also evaluate protections for ePHI. Do you have remote access policies and procedures? If employees are allowed to work from home, can they access ePHI? If so how do you know their access is secure? How do you know your provider’s ePHI is safe from the view of others in the employee’s home?
Learn about other HIPAA Hazards and how you can avoid them.
Most providers routinely train employees on HIPAA—but many forget the boss. Individuals in a leadership position are even more likely to be asked about patients by the media. And yet many providers skip training at the executive level because they don’t want to be a bother. It is in everyone’s best interests, including the boss’s, to make HIPAA training a bother.
A medical center entered a $275,000 HIPAA settlement after two senior level executives discussed a patient’s medical care with the media, without the patient’s authorization. In addition, senior management shared information about the patient’s condition, diagnosis and treatment with the entire workforce by email.
What You Can Do.
- Ask yourself: Who attends HIPAA training? What about the CEO? The Board? Doctors? Who is most likely to speak with the media?
- It can be tempting to leave execs out of training because we know they’re busy, but be careful when it comes to compliance, including HIPAA. They might not come to your 7 am in-service, but find a way to get them the info they need.
- Include all employees, including management, leaders and executives, in HIPAA training. These individuals help set the tone of your organization, and can lead employees to HIPAA compliance—if they know what to do.
- Keep in mind that HIPAA education for leadership might need to be done a little differently than HIPAA education for patient care staff. Tailor education content, including hypotheticals wherever possible, to the specific HIPAA situations your audience might encounter.
DOJ announcements, hefty settlements, and increased scrutiny of contracted therapy made 2015 a monumental year for health care compliance. Here are MPA's top 5 game changers:
Topics: Penalties and Enforcement