Earlier this month, the United States Department of Justice (“DOJ”) filed a suit against Vitas Hospice Services, L.L.C. and its subsidiary entities (“Vitas”) alleging that Vitas submitted false claims for hospice services which were excessive, unnecessary, or not provided, and also alleging that Vitas admitted patients to hospice who were not terminally ill.
Hospice Care
Hospice care is provided to terminally ill patients who have
elected to forego curative treatment in exchange for palliative,
comfort care in their own homes. Hospice care is intended to
make available the medical services necessary for a patient to be
able to remain in his or her home without the need to run to the
emergency room every time uncontrollable symptoms arise. Most
hospice agencies derive a significant portion of their revenue from
Medicare Part A for services provided to program beneficiaries,
including Vitas, whose revenue is historically 90% derived from
Medicare.
In order to be eligible for hospice care, a patient must be
terminally ill with a prognosis of six months or less if the
patient’s illness runs its normal course. Hospice care is
provided at four levels of care: routine home care, continuous home
care (also called crisis care), inpatient respite care, and general
inpatient care, with each level of care being reimbursed at vastly
different rates. Specifically, in fiscal year 2013,
Medicare’s daily reimbursement for continuous care was $742
more per patient than the daily reimbursement rate for routine home
care. Hospice care is not intended to be an around-the-clock
service but rather intermittent care provided by a range of
clinical and non-clinical personnel who make visits to a
patient’s home several times a week.
Continuous or “Crisis” Care
The need for crisis care arises when a patient’s symptoms
become uncontrollable and require nursing care on a continuous
basis for a brief period of time, which could range from eight
hours (the minimum amount of continuous care necessary to bill for
the higher rate) to several days. The first part of the DOJ’s
complaint focuses on allegedly inappropriate and excessive billing
for continuous care services. The DOJ alleges that Vitas set quotas
for the percentage of crisis care which it expected its agencies to
meet. In one instance, for example, Vitas’s Vice
President of Operations allegedly emailed a marketing employee and
general manager demanding to know why the agency’s crisis
care margins had dropped in a particular month.
The DOJ’s complaint alleges that Vitas conditioned its
patients and their families to expect crisis care by misleading
them into believing that the Medicare hospice benefit routinely
covers around-the-clock care. Because of this alleged
marketing ploy, the DOJ surmises that patients sometimes chose
Vitas over other providers. The complaint also alleges that Vitas
disseminated written materials to its staff which incorrectly
trained the staff on how and when to initiate crisis care.
According to the complaint, several staff members gave
investigators explanations of crisis care which were inconsistent
with Medicare requirements.
According to the complaint, many patients failed to meet the
eligibility requirements for crisis care. One Vitas nurse allegedly
told the DOJ that, on more than one occasion, she would arrive at a
patient’s home to provide crisis care, only to learn that the
patient was at church, the beauty parlor, or playing bingo.
According to the complaint, an internal audit conducted by Vitas
itself showed that only 50% of the continuous care records reviewed
contained clinical documentation consistent with the Medicare
requirements for such care. According to the DOJ, when compared to
other hospice providers, Vitas bills Medicare for twice as many
crisis care days as all other hospice providers combined. The
complaint also alleges that Vitas’s crisis care billings were
almost six times what would be expected if its crisis care
statistics were in line with the national average.
The complaint also alleges specific instances of inappropriate use
of continuous care, including treating a patient’s back pain
with a heating pad, performing daily dressing changes, and
continuing to provide continuous care for patients whose acute
symptoms had been treated and stabilized. According to the
complaint, in one unfortunate incident, a Vitas nurse allegedly
failed to recognize that a patient was suffering from opioid
neurotoxicity and continued to administer higher levels of morphine
to the patient, which only increased her pain and led to seizures.
The complaint goes on to allege that Vitas then billed Medicare for
16 days of crisis care for the patient, whose critical condition
was created by Vitas itself. On another occasion, Vitas allegedly
offered crisis care to another patient simply because the patient
was considering aggressive curative therapy instead of continuing
hospice care.
Inappropriate Admissions
The second part of the DOJ’s complaint focuses on
inappropriately admitting patients to hospice when such patients
did not meet the Medicare criteria for hospice eligibility. The
complaint alleges that Vitas’s corporate culture promoted
increasing its agencies’ censuses without regard to whether
services were actually necessary. Vitas allegedly paid bonuses to
its non-clinical staff based on the number of patients enrolled in
the program, and Vitas took adverse employment actions against
marketers who failed to meet monthly admission goals. According to
the complaint, one former manager told investigators that his
bonuses were based on the number of patient admissions and the
length of time that he could get a patient to stay on hospice
services.
The DOJ further alleges that Vitas’s medical staff reported
that they felt pressured by Vitas to admit or readmit patients who
were inappropriate for hospice services. The complaint details an
alleged incident in which one former Vitas admissions nurse said
that if he did not admit a patient whom he found to be ineligible,
he would be pressured to reconsider his decision until he finally
determined that the patient was eligible. Another Vitas nurse
purportedly stated that, at weekly meetings, discharging more than
four patients per meeting was frowned upon by business managers,
and medical staff were told to stop discharging patients even if
patients were not eligible for hospice care. The same nurse also
allegedly reported to investigators that Vitas instructed her to
falsely write in the medical record that a patient experienced
symptoms which he did not actually experience and further
instructed her not to write in the medical records that a
patient’s health was improving.
According to the complaint, several Vitas physicians reported being
under pressure from management to increase the number of patients
admitted to hospice care and were often overruled when they
did not believe that patients were eligible for hospice or when
they determined that patients should be discharged because they
were not dying. The complaint includes a detailed description of
several instances when, according to the DOJ, the medical record
clearly did not support the need for hospice care.
Damages Sought by DOJ
Based on all of its allegations, the DOJ charges Vitas with knowingly presenting or causing to be presented false or fraudulent claims to Medicare in violation of the False Claims Act and seeks unspecified damages, which would be trebled as required by law. Finally, the DOJ also includes as causes of action payment by mistake and unjust enrichment.
Lessons for Providers
The allegations against Vitas are of course just that –
merely allegations. But if proven to be true, some of Vitas’s
practices are obviously flawed: don’t instruct staff to
falsify medical records; don’t provide a higher level of
service than is necessary; don’t base discharges on
non-clinical reasons. Some of Vitas’s alleged business
practices, however, are not obviously problematic. From a business
standpoint, what more accurate way is there to measure a
marketer’s performance than by looking at the number of
admissions which she generates? What would be completely benign
business practices in any other profession could subject someone to
great civil and criminal liability in the healthcare arena.
Hospice providers are encouraged to use the DOJ’s complaint
as a learning tool for understanding what types of issues and
business practices are likely to attract the attention of
investigators (and whistleblowers). Understanding the issues and
potentially problematic business practices up front should enable
providers to design compliance policies and procedures that will
help them avoid some of the pitfalls that have befallen Vitas.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.