Top 10: DOJ Focus Areas for Potential SNF Therapy Fraud

As most SNFs are aware, the DOJ has targeted SNF therapy billing through False Claims Act actions alleging systematic RUG upcoding in order to maximize Medicare Part A profits. While not all-inclusive, the following list identifies common practices and patterns that the DOJ has asserted as evidence of corporate pressure resulting in false claims for therapy services that are not medically necessary. Note that the presence of these indicators at your organization does not necessarily mean that fraud has occurred, but may increase your potential for government scrutiny.

Outlier Status. Having a high percentage of patients in the highest RUG reimbursement categories in comparison to peers.
RUG Targets. Setting corporate targets related to RUG levels (e.g., budgets, minimum percentages for RU and RV, RUG percentage index (RPI), etc.); providing employee bonuses for meeting RUG targets; asserting corporate pressure through meetings, presentations, employee evaluations and discipline to meet goals; sharing comparisons of facility RUG performance to foster competition; and encouraging therapists to be “creative” to meet given targets.
Aggressive Productivity Requirements. Using aggressive productivity requirements to promote the upcoding of RUGs or reimbursement levels; evaluating compliance with these requirements during employee evaluations; and disciplinary actions for non-compliance.
Extended Length of Stay. Pressuring facilities and/or therapists to extend patients’ length of stay beyond therapeutic needs; using checklists and/or requiring special approvals for discharge; and continuing therapy after therapist recommends discharge.
Providing Therapy to Inappropriate Patients. Screening patients to be added to therapy load; providing therapy to individuals who have a terminal diagnosis or who are near death; using suspect diagnoses to justify therapy; providing therapy to patients who do not meet eligibility or reimbursement criteria for skilled therapy; and forcing patients who do not wish to participate to receive therapy.
Hugging the RUG. Monitoring “over-delivery” of therapy services to ensure that patients are receiving the fewest possible minutes to qualify for a specific RUG category while also attempting to get enough minutes to be in the highest RUG category possible (e.g., hitting 720 minutes without going over).
Presumptively Placing Patients In Therapy. Requiring all admitted patients to presumptively receive a certain number of minutes of therapy (e.g., 720 minutes of therapy) unless proven otherwise; and requiring an explanation when a patient’s minutes are set at a lower amount.
Tracking “Missed Minutes.” Requiring or pressuring therapists to make up “missed minutes” by arbitrarily adding more therapy minutes for the same day in a different discipline or by adding minutes to the target minutes of the same discipline for a subsequent day; providing weekend therapy to make up “missed minutes”; and sharing the financial import of missing minutes with therapy staff.
ARD Manipulation. Excessive use of grace period days within the assessment reference period in order to capture the highest number of therapy minutes and resulting increased reimbursement. (Before the implementation of COT/EOT OMRAs, "ramping" was also a concern.)
Improper Billing. Billing for unskilled services; excessive use of modalities; and billing for time spent on evaluations.

ROLF focuses its practice in representing post-acute providers and has experience handling high risk False Claims Act qui tam and other whistleblower claims. ROLF assists providers in defending these types of actions, implementing preventative compliance measures to prevent these types of claims, and consults with other law firms on False Claims Act cases.

Please note that this alert is intended to be informational only, and is not intended to be nor should it be relied upon as legal advice. Rolf Goffman Martin Lang LLP will not be responsible for any actions taken or arrangements structured based upon this alert. The receipt of this alert by an organization that is not a current client of Rolf Goffman Martin Lang LLP does not create an attorney-client relationship between the recipient and the law firm.