The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) recently updated its Work Plan to add an additional topic focusing on nursing facilities that receive Medicare and Medicaid reimbursement.
The Work Plan provides a summary of new, revised, and continuing reviews for HHS programs and operations, including Medicare and Medicaid. It describes ongoing audits, evaluations, and specific legal and investigative matters. In addition, within the first four months of 2019, OIG has issued two reports and one data brief regarding nursing facilities.

An Opportunity for Review

The release of these reports and the addition to the Work Plan provide an opportunity for nursing facilities to review their own operations and practices while comparing them to the objectives in the Work Plan in order to identify areas for compliance improvement.

OIG conducts investigative activities that involve allegations of fraud, waste, and abuse in all HHS programs. Medicare and Medicaid constitute a significant portion of its work. Areas that OIG can investigate include billing for services not rendered, provision of medically unnecessary and misrepresented services, patient harm, and the solicitation and receipt of kickbacks.

In addition to performing investigations, OIG is also involved in facilitating compliance in the health care industry and the exclusion of individuals and entities from participation in Medicare, Medicaid, and other federal health care programs.

The New Topic

Recently, OIG added a new topic to the Work Plan focusing on post-hospital skilled nursing facility (SNF) care to individuals eligible for Medicare and Medicaid, or dually eligible individuals.

Similar to topics added in the past, OIG noted previous reviews as the basis for the addition. Here, OIG references previous reviews that showed some residents who lived in and received Medicaid-covered nursing facility care were admitted to a hospital, discharged, and then returned to the same facility to receive Medicare-covered post-hospital SNF care. 

OIG found that nursing facility physicians certified that individuals needed skilled care even though the hospital discharged the individual home to a Medicaid facility rather than a SNF. This is concerns the Centers for Medicare & Medicaid Services (CMS) because of a belief that nursing facilities have a financial incentive to increase the level of care since Medicare pays more for SNF care than Medicaid pays for nursing facility care.

Increased Scrutiny

With this new topic, OIG will be examining the level of care requirements for post-hospital SNF care provided to dually eligible beneficiaries. Specifically, OIG will be determining whether:
  • The SNF level of care was certified by a physician or a physician extender;
  • The condition treated at the SNF was a condition for which the individual received inpatient hospital services or was a condition that arose while the individual was receiving care in a SNF for an eligible stay;
  • Daily skilled care was required;
  • The services delivered were reasonable and necessary for the treatment of an illness or injury; and
  • The Medicare payments made were improper.
In one report, OIG determined that CMS improperly paid claims for SNF services when the Medicare three-day inpatient hospital stay rule was not met. OIG attributed those improper payments to several factors, including the failure of hospitals to provide correct inpatient stay information and SNFs reporting erroneous hospital stay information with their claims.

Addressing the Issues

CMS concurred with several recommendations from OIG to address the issues from this report.
The first was to confirm that the Common Working File qualifying inpatient stay edit is enabled during the processing of SNF claims for payment. Also, CMS concurred with OIG’s recommendation for the provision of additional education to hospitals and SNFs about three-day inpatient stay documentation.

The second report issued by OIG addressed the need for the improvement of CMS guidance to State Survey Agencies (SSAs) on verifying correction of deficiencies to help ensure the health and safety of residents. Specifically, OIG found that seven of nine state agencies did not always verify the correction of deficiencies by nursing facilities and that the state agencies did not consistently obtain or maintain evidence of the corrections. 

Ultimately, OIG determined that CMS guidance to SSAs regarding the verification of correction of deficiencies and the maintenance of documentation to support that verification needs to be improved.

Deficiency Trends

Complementing that report from February, OIG issued a data brief in April that identified and analyzed trends in the deficiencies identified by SSAs in nursing facility surveys nationwide. Of note, several of the trends identified by OIG include that approximately 31 percent of nursing facilities had a repeat deficiency in the four-year review period and that the top 10 deficiency types comprised more than 40 percent of all the deficiencies reviewed.

The top 10 deficiency categories identified by OIG were: free of accident hazards; establish an infection control program; provide care and services for highest well-being; food and sanitary; develop comprehensive care plans; drug regimen free from unnecessary drugs; drug records, label, store drugs, and biologicals; resident records; dignity and respect of individual; and investigate, report allegations, and individuals.

These audits, evaluations, and reports by OIG serve as an important reminder that nursing facilities must remain vigilant with their documentation, level of care certifications, and provision of services. The Work Plan provides insight into the areas that could come under scrutiny and ultimately can help guide internal compliance activities for a nursing facility. In addition to the Work Plan topics, the recent reports and data brief by OIG provide further confirmation of this increased review activity.

The recommendations, trends, and topics identified by OIG serve as helpful hints for nursing facilities when reviewing their own operations and compliance activity. For example:
  • Nursing facilities need to ensure that physician certifications are compliant with applicable requirements.
  • It is essential that nursing facilities properly train billing and claims staff and that staff keep current with regulatory service provisions.
  • Nursing facilities need to be sure that they obtain complete and accurate documentation to verify the three-day stay requirements and documentation.
  • As SSAs work to improve their processes regarding verification of corrective actions, nursing facilities should anticipate additional follow-up and closer scrutiny regarding documentation and corrective actions.
  • To be prepared, nursing facilities must thoroughly document their plans of correction.
  • Further, it is important for nursing facilities to implement their corrective action items and maintain adequate records to document implementation and completion.
With these recent developments in mind, nursing facilities should review their operations and take the steps necessary to be better prepared to achieve and maintain compliance and provide proper and quality care.
Iain Stauffer serves as Of Counsel at Poyner Spruill in the Health Law Section. He can be reached at