Fraud related to personal care services (PCS) are a hot topic this week in Washington, DC. On Tuesday, Christi Grimm, Chief of Staff for the Office of Inspector General HHS, provided testimony before Congress on the rising levels of fraud related to personal care services (PCS) and how fraud and abuse are rampant and are undermining confidence in the Medicaid program.
That same day, GAO also released a report Medicaid Personal Care Services: More Harmonized Program Requirements and Better Data are Needed, which reiterates many of the same concerns as Mrs. Grimm did during her testimony.
PCS enable Medicaid beneficiaries who are elderly, have disabilities (including children) or have chronic or temporary conditions to receive care directly in their homes rather than in institutions or facilities (e.g. skilled nursing homes or assisted living facilities). As such, there are some obvious benefits for patients receiving direct care in this context.
Mrs. Grimm testified that CMS has no reliable method of collecting or monitoring the data related to personal care services because there are no uniform federal qualifications or screening standards for PCS attendants and no requirement that States enroll or register PCS attendants and assign them a unique number. Further, Mrs. Grimm stressed that one way to prevent improper payments is to simply require that PCS claim identify the dates of services and the PCS attendant that provided those services.
OK, so let’s get this straight: the federal government has no reliable method of monitoring how individuals are providing care to some of the most vulnerable and high risk patients and has not implemented a system to weed out the bad actors or to even identify them or narrow them down by name as they continue to provide care?
Alaska has though. Alaska implemented some of these requirements and now enrolls all PCS attendants with the Medicaid agency. As a result, in the last 2 years, Alaska knocked out 108 criminal convictions and recovered $5.6 Million in restitution and the State reduced its costs significantly.
What Lies Ahead for PCS
It is reasonable to believe that many states may take these words and recommendations to heart. If so expect that Medicaid Fraud Control Units in coordination with their federal partners will devote significant resources to investigating and prosecuting these cases and CMS will revisit the significance of implementing additional regulations to combat fraud within PCS. The government has already clamped down on assisted living facilities and skilled nursing facilities citing similar deficiencies and fraud involving patient harm is, (and always has been) a top priority of the Department of Justice. These changes and an uptick in these prosecutions would therefore appear to be a natural extension of current government enforcement priorities.
It is therefore anticipated that there will be an increase in prosecutions, both civil and criminal, related to PCS services, ALFs, and SNFs. Prosecution theories might range from simple billing fraud (e.g. services not provided) to PCS provided by attendants with criminal histories. The Government may also continue to investigate and prosecute providers of PCS, skilled nursing facilities, or assisted living facilities if they view the care as “worthless.” Under this novel theory known as the “worthless services” or patient care fraud theory, care is so deficient that it has no fair market value. Worthless services is a prosecution theory that has garnered mixed results in both health care fraud and False Claims Act cases for the Government but is a theory which may prove to be a powerful prosecution tool in PCS fraud cases if some of Mrs. Grimm’s recommendations become reality and all the buzz surrounding PCS this week materializes.
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