Monthly Archives: June 2015

PHYSICIAN COMPENSATION UNDER OIG REVIEW

Physician Compensation Arrangements Under Scrutiny

On June 9, 2015, the Office of Inspector General issued a special Fraud Alert warning physicians that compensation arrangements (such as medical directorships) must ensure that the arrangement reflects fair market value. Such arrangements “may violate the anti-kickback statute even if one purpose of the arrangement is to compensation a physician for his or her past or future referrals of Federal health care program business.”

California statures and rules can be even stricter.

In this era of merger and consolidation, medical providers must be careful to create appropriate compensation arrangements. They must carefully document attempts at establishing fair market value, or be subject to regulatory prosecution.

This alert comes after the OIG recently reached settlements with 12 physicians who entered into medical directorships and other arrangements, which the OIG concluded violated the Federal Anti-Kickback Statute. In those cases, the arrangements appeared to be illegal for one or more of the following reasons:

• The payments to the physicians took into account the physicians’ volume or value of referrals.

• The payments did not reflect fair market value for the physicians’ services.

• The physicians did not actually provide the services required under the agreements.

• The entities contracting the physicians paid the salaries of the physicians’ front office staff.

Certain physician compensation arrangements – and particularly medical director arrangements – are perceived as risk areas for Anti-Kickback Statute violations. Facilities and physicians entering into such arrangements should review existing and new arrangements for compliance in light of this Fraud Alert and should seek the expertise of health care legal counsel.

By Matt Kinley,Esq., LLM, CHC

562.715.5557

Home Care Stakeholder Workshop

The Home Care Services Bureau conducts Care Services Consumer Protection Act Stakeholder’s Meetings pursuant to California’s AB 1217, the Home Care Licensure Act.   Those who are interested in the subject are encouraged to submit their questions to: HCSB@dss.ca.gov AND to our Policy Director, Braden Oparowski at boparowski@cahsah.org.

The Department has announced that they expect to release the licensing fees and aide registration fees sometime in July. Information was also presented on the following topics: fingerprint transfer process, home care aide training requirements, written directives verses regulations, licensing inspections, personnel and administrative file requirements, abuse reporting requirements, reporting organizational changes and TB clearance.

The Home Care Bureau’s website DSS’ Home Care Services Bureau will be posting the Power Point presentation from the webinar on the main page of their website. Additional questions about the Home Care Services Consumer Protection Act Stakeholder Meetings or AB 1217, may be directed to CAHSAH’s Legislative Specialist Mary Adorno at
(916) 641-5795 extension: 124.

LAWS AND REGULATIONS SPECIFIC TO IN HOME CARE ORGANIZATIONS IN CALIFORNIA

New Emphasis on Patient Safety Will Cause Greater Scrutiny of Home Care Providers

While In Home Care Organizations (“HCOs”) have been relatively free of laws and regulation, such companies are coming under increasing scrutiny in California. There have been concerns about patient safety and security, which has caused the state to enact laws and regulations that impose safety checks and training. There are also concerns about abuse of HCO workers, causing minimums standards for companies employing such workers. While many of these reforms appear to be appropriate, they also make the utilization of in home services more expensive, which will make such services unaffordable for a large segment of the population.

HOME CARE SERVICES CONSUMER PROTECTION ACT

The most significant reform is the Home Care Services Consumer Protection Act of 2013 (AB 1217), signed into law on October 13, 2013. It covers “home care services,” which are formally defined as nonmedical services and assistance provided by a registered home care assistant (“HCA”) to a client who, because of advanced age or physical or mental disability needs assistance in activities of daily living, allowing the client to stay in their residence. Such services include assistance in the following areas:
• Dressing
• bathing
• exercising
• personal hygiene and grooming
• transferring
• ambulating
• positioning
• toileting and incontinence care
• housekeeping
• meal planning and preparation
• laundry
• transportation
• correspondence
• making telephone calls
• shopping for personal care items or groceries
• companionship

WHAT IS INCLUDED IN THE ACT?

This legislation requires agencies to: List aides in an online registry, conduct background checks on workers, obtain finger prints of all aides, provide five hours of training for new hires, and obtain a license from the state certifying their compliance with basic standards.

The commencement date of the law was extended to January 1, 2016. It provides that the California Department of Social Services (CDSS) will regulate HCOs and provide background checks of affiliated Home Care Aides (HCAs) and independent HCAs who wish to be listed on the Home Care Services (HCS) Registry. Currently CDSS is implementing regulations, including the formation of newly formed Home Care Services Bureau (HCSB)  in partnership with the Caregiver Background Check Bureau (CBCB). HCSB will oversee the licensing and oversight of the HCOs and CBCB will oversee the background checks for the HCAs and will maintain the HCS Registry.

Some of the penalties found in the Act include:
• $900 fine per day for each day if not licensed by Department of Social Services

• Potential cease and desist order, which shall remain in effect until the individual or entity has obtained a license pursuant to this chapter.

Potential imposition of a civil penalty; or

Potential civil action against the individual or entity.
If CDSS finds that an individual has been convicted of a crime other than a minor traffic violation, the individual cannot work for or be present in any community care facility unless they receive a criminal record exemption from the Community Care Licensing Division, Caregiver Background Check Bureau.

CALIFORNIA’S IHSS PROGRAM

California has established the In Home Supportive Services (IHSS)  program, which is a Medi-Cal program providing payment to providers who are serving aged and/or disabled patients who are without the means to pay for such services Persons wanting to become a IHSS provider must provide a U.S. government issued picture identification and an original Social Security card and the provider must complete the Provider Enrollment Form (SOC 426) and obtain finger prints. The California Department of Justice (DOJ) will obtain a criminal background check on the individual.

DEPARTMENT OF LABOR WAGE AND HOUR RULES

On January 1, 2015, the Domestic Worker Bill of Rights (AB 241), took effect. It regulates the number of consecutive hours for home health care workers and requires overtime pay for long work shifts.
California now is one of 16 states with some type of overtime requirement for home health workers. Personal attendants covered by this law are now entitled to overtime pay at 1.5 times their regular rate of pay for any hours worked in excess of nine (9) hours in a day or in excess of 45 hours in a week.

The new law, due to sunset in 2017, calls for formation of an evaluation committee to review and analyze the effectiveness of the overtime provision over the next three years. The California Department of Industrial Relations is charged with reviewing the law.
One of the areas the committee will monitor is whether the law prompts more underground caregiving, as Janz said is happening.
MINIMUM WAGE

Domestic workers are entitled to the minimum wage, with the exception of babysitters under the age of 18 and the employer’s parent, spouse, or child. The Labor Commissioner enforces the California minimum wage. The Labor Commissioner may enforce local minimum wage laws if the work is performed in a city and/or county that has a higher minimum wage ordinance.

If your employer discriminates or retaliates against you in any manner whatsoever (for example by terminating you or giving you fewer hours), you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. Alternatively, you can file a lawsuit against your employer in court.

ACTION ITEMS

Institute security check program with all home aides working for your organization, including back ground check and finger printing.

Obtain an exemption or terminate those home aides that fail the background check.

Institute a training program for all home aides working for your organization
Review wage and hour polices and ensure that your organization has all employee manuals with the proper overtime and minimum wage rules.

By Matt Kinley, Esq.