More than half of all Medicare patients die in hospice care. It is little surprise, then, that the federal government aggressively pursues hospices for Medicare fraud. In fact, since 2006, the federal government has accused almost every for-profit hospice in the country of fraud.
Hospice Care Explained
Hospice care focuses on providing comfort for the terminally ill. Medicare pays for hospice services including medical, nursing, social, psychological, emotional, and spiritual treatments intended to make terminally ill patients as comfortable as possible in their own homes. Normally, treatment consists of palliative care that relieves pain and suffering, with an interdisciplinary team working together to plan the scope and the frequency of care.
Hospice Fraud Explained
In order for Medicare to cover a patient’s hospice care, the patient’s doctor must certify that he or she has six months or less to live. The most common allegations of Medicare fraud against hospices involve providing hospice-care to patients who do not have the necessary certification or using falsified certifications.
There is no requirement that the patient actually dies within six months, as long as the certification of life-expectancy was made in good faith. However, if the patient’s health improves, he or she must be discharged from hospice. If a patient’s condition improves so that his or her life expectancy is longer than six months, failing to discharge the patient can result in charges for fraud.
Medically Unnecessary Services
Another common form of hospice fraud involves ordering redundant or unnecessary equipment and medications. For example, a hospice may acquire a new wheelchair or hospital bed for a patient who either already had such equipment or did not need it. Or, a hospice may order medication to treat a patient’s illness. In order to be eligible for hospice care, patients must agree not to seek medication to treat their terminal illnesses. But, since medication to control the symptoms of the illness or to prevent pain and suffering are eligible for reimbursement through Medicare, there can often be questions about whether a particular medication is appropriate in the hospice setting.
The Office of the Inspector General (OIG) has recently focused its efforts on prosecuting hospice providers and related physician practices. The OIG uses data analytics to identify hospice providers that are outliers for length of stay, cap repayments, live discharges, overuse of particular diagnosis codes, and elevated levels of care. Based on the data, the OIG will then issue subpoenas for medical files and other documentation to hospice providers whom it suspects of fraud. The OIG will also typically conduct interviews with employees and patient’s families in order to corroborate the data. Along with the forms of fraud discussed above, the OIG typically looks for evidence of:
- A bonus structure for marketers or nurses based on the number of patients or number of days a patient is kept on hospice care; or,
- Mass discharges of patients that coincide with the time of care limitations, as well as multiple stays in hospice care.
Civil vs. Criminal Charges
While the OIG used to focus primarily on civil investigations of hospices, this is no longer the case. The OIG has recently increased its scrutiny of hospice providers and is now focused on criminal prosecutions.
In criminal investigations, the government uses search warrants to collect evidence of kickbacks paid to physicians, illegal marketing, inadequate services, services not rendered, and falsification of medical documentation. Criminal prosecutions for Medicare fraud can lead to long-term imprisonment and other serious penalties. Based on our experience, we believe that the OIG’s focus on criminal prosecutions of hospice providers will likely continue for years to come.
Is Your Hospice Under Investigation? Contact The Criminal Defense Firm Today
If you believe that your hospice may be under investigation for Medicare fraud, we urge you to contact us for a free, confidential case evaluation. To speak with our team of former federal prosecutors and experienced criminal defense lawyers, call 866-603-4540 or submit our online request form now.
This information has been prepared for informational purposes only and does not constitute legal advice. Reading of this information does not create an attorney-client relationship. Prior results do not guarantee similar future outcomes. The Criminal Defense Firm is a Texas firm with headquarters in Dallas.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.