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New OIG Report, But Same, Ole Results: Medicare and Medicaid Fraud Persistent in PCS

How many times have you heard, “Third time’s a charm?”If that is true, then what is the fifth time? The sixth time?

In an October 3, 2016, advisory report, the Office of Inspector General (OIG) recommends that the Center for Medicare and Medicaid Services (CMS) heighten its scrutiny on personal care services (PCS) in states across the country. The OIG claims “that home health has long been recognized as a program area vulnerable to fraud, waste, and abuse.” Past OIG reports have focused on Medicare. This new one focuses on Medicaid.

OIG is a division of the U.S. Department of Health and Human Services (HHS) and is charged with identifying and combating waste, fraud, and abuse in the HHS’s more than 300 programs. But, evidently, OIG is not happy, happy, happy, when HHS disregards its findings, which appears to be what has happened for a number of years.

PCS are nonmedical services for people who need assistance with activities of daily living (ADLs), such as bathing, eating, and toileting. Most of the time, PCS are allowing the person to remain in his or her home, instead of being institutionalized. However, according to OIG, PCS is fraught with fraud.

PCS is an optional service for Medicaid, i.e., states can choose to cover the cost of PCS with government funds. But, on the federal level, PCS is provided, if medically necessary, in all states.

The OIG report summarizes Medicaid fraud schemes from November 2012 through August 2016. OIG goes on to say that the fraud in this report is merely replicate of Medicare fraud found in a prior reports. In other words,OIG is basically saying that it has found Medicare fraud in home health in multiple, past reports and that CMS has not followed through appropriately. In fact, this report makes over five times, in recent years, that OIG has instructed CMS to increase its regulatory oversight of Medicare/caid personal care services. How many times does it take for your spouse to ask you to take out the trash until you take out the trash? Third time’s a charm??

Mark my words…in the near future, there will be heightened investigations and increased audits on home health.

Here are some scenarios that can trigger an audit of home health:

  1. High percentage of episodes for which the beneficiary had no recent visits with the supervising physician;
  2. High percentage of episodes that were not preceded by a hospital or nursing home stay;
  3. High percentage of episodes with a primary diagnosis of diabetes or hypertension;
  4. High percentage of beneficiaries with claims from multiple home health agencies; and
  5. High percentage of beneficiaries with multiple home health readmissions in a short period of time.

While the above-mentioned scenarios do not prove the existence of Medicare/caid fraud, they are red flags that will wave their presence before health care investigators’ faces.

Here are the states (and cities) which will be targets:

Notice that North Carolina is not highlighted. Notice that Florida is highlighted and contained numerous “hotspots.” Certainly that has nothing to do with the abnormal number of people on Medicare…

Regardless, North Carolina will get its share of Medicare PCS audits. Especially, considering that we have the 7th most number of Medicare beneficiaries in the country – that should have gotten us highlighted per se.

Since the OIG Portfolio report issued in 2012, OIG has opened more than 200 investigations involving fraud and patient harm and neglect in the PCS program across the country. “Given the significant vulnerabilities in the PCS program, including a lack of internal controls, and that PCS fraud continues to be a persistent problem, OIG anticipates that its enforcement efforts will continue to involve PCS cases.”Report.

Fifth time is a ______?? (Sure thing).

Compelling Personal Care Workers to Pay Union Dues Violates Our Freedom of Speech: But I Still Have to Pay My HOA Dues!

I live in a community that requires homeowner association monthly dues.  We have a homeowner association (HOA).  More than once I have complained at the high cost of these monthly dues and the absurd endeavors on which our HOA spends my money.  For example, we had a beautiful, clay tennis court.  If you have ever played tennis on a clay court, you know how wonderful it is to play on clay.  Clay tennis courts are also expensive to build.  A few years ago, my HOA decided to turn the clay tennis courts into a gardening center.  In place of the tennis nets, they built 10-12 raised beds to which the homeowners could purchase rights to use.  Somehow, my HOA determined the clay tennis court would be better used as a place to hold raised beds instead of playing tennis.

Despite my intense disapproval of this decision, I was forced to continue to pay my HOA dues, and a part of my HOA dues was spent on the conversion from tennis court to garden center.

Not completely dissimilar, in many states, public sector workers are required to contribute to union dues, even if they disagree with the union’s actions.  In-home care workers are considered public sector workers in Illinois because they care for the disabled and elderly and accept Medicaid money.  Including Illinois, 19 states allow bargaining agreements for home care workers.

Last week the Supreme Court sent shockwaves to the 19 states that allow bargaining agreements with home care workers.  The Supreme Court held that Illinois cannot compel personal care workers to pay union dues.

You may be asking yourself, why is Knicole blogging about an Illinois lawsuit and union dues.  How in the world does this affect North Carolina health care providers who accept Medicare and Medicaid?

The narrow answer would be that the case has no effect whatsoever on NC health care providers.  Unlike Illinois, North Carolina does not allow public sector bargaining.  In fact, in NC, union contracts, or bargaining contracts for public sector employees are considered “illegal, unlawful, void and of no effect.”  N.C. Gen. Stat. 95-98.

A broader view, on the other hand, is to understand that increases or decreases in personal care wages, better or worse benefits provided to personal care workers, and the overall profit or loss of personal care workers across the country, is relevant to NC personal care workers, and I prefer this broader view.

In the Supreme Court case, Harris, et al v. Quinn, Justice Alito wrote that compelling public sector workers to compensate a third party to “speak” for them, even if the worker disagrees with the third party’s speech violates the First Amendment.

In the Supreme Court opinion, Justice Alito writes:

“If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Individual states determine labor laws related to government employees.  As previously stated, NC bans bargaining agreements.  Virginia does as well.

In states that do allow bargaining agreements, if workers did not want to participate in the bargaining unit, the worker would opt out of full dues and pay only the cost of grievance administration and collective bargaining.  Supposedly, this prevents the nonmembers, who benefit from the reward of collectively-bargained higher wages or better benefits, from reaping the benefits without paying for them.  The whole “free-ride” idea…

In Illinois, Service Employees International Union (SEIU), a bargaining unit, argued that personal care workers should be compelled to contribute to it because personal care workers are public sector workers.

SEIU claims that it gets higher pay and better benefits for personal care workers.  Approximately 1 million of the 3 million personal care workers nationwide are members of SEIU or other similar organizations.

However, the Supreme Court disagrees.  According to the Harris decision, I shouldn’t have to pay for HOA dues if I disagree with the HOA’s actions (I’m kidding.  Sadly, I have no case to cease paying my HOA dues).

Proponents of unions are not happy with the results, but let’s play out a hypothetical…what if the Supreme Court held that public sector workers were required to pay union dues, even against their will….

Because, think about it…the government cannot prevent us from contributing to political candidates nor can the candidate force you to contribute to a political campaign.  Upholding the freedom of speech is not necessarily anti-union.  The Supreme Court did not rule “against” unions per se.  It ruled that a bargaining unit is “bargaining for” or “speaking for” its members.  And you cannot be forced to pay for speech with which you disagree.

Free speech allows all of us to individually decide which principles to support.  Allowing personal care workers to choose not to support certain ideologies is not an attack on collective bargaining.  Rather, it ensures that the free choices of personal care workers are represented by any union entity, rather than union leaders benefiting from coerced fees.

While the Harris decision does not apply to me and my HOA dues for many reasons, including the fact that I chose to live in the community knowing that the HOA existed, the Harris decision does have possible broad ramifications, especially as to in-home care workers and other public sector workers.  It may mean that the 1 million in-home care workers now compelled to contribute to unions may have standing to stop if they so choose.