Fraud and Abuse in the Form of Free Discharge Planning Services
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Elizabeth E. Hogue, Esq.
|Hospitals are required to provide discharge planning services. Case managers who provide these types of services and providers that receive referrals from hospitals must be aware of a possible type of fraud and abuse in the form of free discharge planning services. Specifically, there is a federal statute that governs illegal remuneration in the Medicare, Medicaid and other federal and state health care programs. This statute is often called the anti-kickback statute or AKS.
The statute generally says that anyone who either offers to give or actually gives anything to anyone in order to induce referrals has engaged in criminal conduct. Possible penalties for violation of this statute include imprisonment, fines, suspension and exclusion from participation in the Medicare, Medicaid and other state and federal health care programs and civil money penalties. The stakes are, therefore, extremely high!
The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services is the primary enforcer of fraud and abuse prohibitions. The OIG stated in a Special Fraud Alert, published in August of 1995, that the activities of coordinators and liaisons supplied by providers who want referrals cannot supplant the services of discharge planners. When coordinators and liaisons perform services that discharge planners are supposed to perform, enforcers may view these services as kickbacks to referral sources in the form of free discharge planning services.
Discharge planners/case managers at hospitals and long-term care facilities may want to in enter into written agreements with post-acute providers; such as home care agencies, home medical equipment (HME) suppliers and hospices; to provide coordinators and liaisons. Although written agreements for the provision of coordinators/liaisons are not required, they may be acceptable if appropriately drafted.
Specifically, these agreements, whether written or verbal, must be structured in order to avoid possible kickbacks. Below are some of the potential pitfalls of such agreements that should be avoided:
Providers and case managers/discharge planners are in the proverbial "hot seat" with regard to marketing and enforcement activities by the OIG. They must keep up-to-date on these issues.
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