United States: OIG Issues Investigative Advisory On Medicaid Fraud & Patient Harm Involving Personal Care Services (PCS)

Continuing the drumbeat of increased regulatory scrutiny on long-term care providers, the Office of Inspector General (OIG) of the Department of Health and Human Services in early October 2016 released an Investigative Advisory on Medicaid Fraud and Patient Harm Involving Personal Care Services: https://oig.hhs.gov/reports-and-publications/portfolio/mpcs.asp.

In the OIG's words, the Investigative Advisory "highlights several of the most significant program vulnerabilities related to PCS that OIG continues to encounter during the course of Federal investigations," and "summarizes fraud schemes in Federal investigations involving PCS from November 2012 through August 2016."

Noting that it has already "issued numerous reports highlighting vulnerabilities in PCS that are believed to have contributed to high improper payments, questionable care quality, and high amounts of fraud," the OIG stated its concern that "State PCS programs will remain susceptible to fraud unless CMS takes preventive, nationwide action to address systemic vulnerabilities." It also referenced the previously stated goal of preventing fraud and patient harm before it occurs, instead of engaging in "pay and chase" activities and attempting to recover payments already made to providers, after the fraud or sub-standard care has taken place.

The PCS fraud schemes cited by the OIG include:

  • Multiple PCS attendants billing for visits to the same patient in Washington, in which caregivers persuaded the patient to sign blank time sheets and submitted claims for periods when the patient was out of the country.
  • A criminal prosecution of more than 40 individuals associated with a PCS agency in Alaska, where the owner authorized employees to submit false time sheets for services not provided and also billed Medicaid for services provided by employees who were not legally authorized to bill.
  • The submission of over $34,000 in claims by a PCS attendant in Illinois, who had been excluded from all Federal programs for allegedly diverting controlled substances from her employer, for services not provided (including services she claimed to have provided while she was on vacation in the Caribbean and Central America).
  • A case in which a Missouri PCS attendant submitted claims for providing care to four beneficiaries simultaneously while working a full-time job, over a 130-day period.
  • A Virginia PCS attendant billing Medicaid for care not provided, which included 20 hours per week of accompanying the beneficiary to doctors' appointments over a 2-month period.

The Investigative Advisory also referenced several recent cases of patient harm: some involving abuse or neglect by PCS attendants that have resulted in deaths and hospitalizations, and other that involved provision of care while impaired. The OIG expressed the view that these cases demonstrate that "CMS and the States do not have sufficient controls for individuals entering beneficiary homes to provide Medicaid-funded services," and that "CMS needs to take regulatory action to establish safeguards that will prevent fraudulent or abusive providers from enrolling or remaining as PCS attendants and better protect the PCS program from fraud and patient hmm and neglect."

Key unimplemented OIG recommendations, which could be the subject of future regulations, include:

  • Establishing minimum Federal qualifications and screening standards for PCS workers, including background checks.
  • Requiring States to enroll or register all PCS attendants and assign them unique numbers.
  • Requiring that PCS claims identify the dates of service and the PCS attendant who provided the service.
  • Additional controls to ensure that PCS are allowed under program rules and are actually provided.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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