Barclay Damon
Barclay Damon

Legal Alert

New Laws and Requirements Affecting Home Care Providers

The Office of the Medicaid Inspector General (OMIG) has posted its latest Compliance Alert (#8) on the OMIG website entitled “Home Health Care Provider Self-Assessment Pre-Claim Review Process.” As you may know, in 2007, the Office of the New York State Comptroller issued an audit report for the five-year period ending April 30, 2006, which identified a substantial risk area for Medicaid fraud and abuse in the home health industry.

As part of its efforts to reduce that risk in the home health care industry, the Social Services Law was amended to require use of a verification organization to conduct pre-claim reviews of Medicaid services and items and to provide exception and conflict report data for the following providers with total Medicaid reimbursements exceeding $15 million per calendar year: certified home health agencies (CHHAs); long term home health care programs (LTHHCPs); and personal care providers. These providers must now utilize a verification organization to review and verify each service or item within a claim prior to its submission to the New York State Department of Health. The verification organization must review the claims that will be submitted by these providers and declare each service or item to be verified or unverified. For each service or item, the verification organization shall capture the following data fields: 1) the identity of the individual providing services or items to the Medicaid recipient; 2) the identity of the Medicaid recipient; and 3) the date, time, duration, location and type of service or item. The listed providers must receive and maintain reports from its verification organization which contain data on: 1) verified services or items, including whether a service appeared on a conflict or exception report before verification and how that conflict or exception was resolved; and 2) services or items that were not verified, including conflict and exception report data for the services. Failure to utilize a verification organization or failure to take appropriate action upon receipt of a verification organization’s conflict or exception report may result in termination of the participating provider’s Medicaid contract with the State of New York and/or may result in an audit by OMIG and a recovery of any overpayments that were made. To assist providers in assessing and evaluating their compliance with these new requirements, OMIG prepared an assessment tool released as Compliance Alert #8. While its completion is not a requirement, it is being offered as a recommendation to assist providers in determining whether the statutory and regulatory requirements addressed herein are being met. While the laws apply to CHHAs, LTHHCPs and personal care providers, other home care agencies providing services for one of these agencies, where Medicaid is billed, may find the CHHA or other covered provider placing additional requirements on the contracted provider to ensure compliance with these rules.

Palliative Care Laws
The Palliative Care Information Act requires attending health care practitioners (a physician or nurse practitioner who has primary responsibility for the care and treatment of the patient) to offer terminally ill patients “information and counseling regarding palliative care and end-of-life options appropriate to the patient . . . the prognosis, risks and benefits of the various options; and the patients’ legal rights to comprehensive pain and symptom management at the end of life.”

The Palliative Care Access Act requires hospitals, nursing homes, CHHAs, licensed home care services agencies (LHCSAs), LTHHCPs, special needs assisted living residences, and enhanced assisted living residences to “establish policies and procedures to provide patients with advanced life limiting conditions and illnesses who might benefit from palliative care with information and counseling regarding such options appropriate to the patient” and to “facilitate access to appropriate palliative care consultations and services . . . .” When a patient/resident lacks capacity to make health care decisions, providers and residences must also have policies and procedures in place to identify the patient’s/resident’s legally-authorized health care decision-maker and provide access to information and counseling to that person.

Should you have questions regarding these requirements or their impact on your agency, please contact David Glasel, Melissa Zambri or any member of our Health Care and Human Services Practice Area.