November 2014
You Got Served…With a Subpoena By Edward Vishnevetsky
It’s a typical Wednesday morning at your office. All of a sudden, two men enter your business. They identify themselves as agents of the Department of Health and Human Services’ Office of Inspector General (“OIG”). They hand you a subpoena which requests documents related to one or more types of services you provided to any patient in the past 5 years. The subpoena references numerous civil and criminal statutes. The agents then tell you to submit all responsive documents within 30 days. While this scenario may seem unlikely, it is being played out commonly among health care providers around the country. In fact, our law firm has responded to 5 such subpoenas in the past year alone. This article provides an overview of how the OIG uses its administrative subpoena power to collect evidence from and against a health care provider, and what you should do if and when you are served with a subpoena. Background An investigation of a provider by the Government may be kept secret for months or years until prosecutors obtain enough information to believe that a crime may have been perpetrated. An administrative subpoena is evidence that the Government is investigating
a provider for potential civil or criminal prosecution. The subpoena may result from observations made during an onsite survey, a pre-payment or post-payment audit, billing history, or allegations made by a current or former employee. Inspector Generals have two separate means by which to collect evidence. The first is the general and broad administrative subpoena power Congress granted to each Inspector General under HIPAA. This power allows the OIG to investigate fraud “relating to the delivery of any payment for health care in the United States,” including fraud against private insurers. The second is authority granted by the Affordable Care Act (“ACA”) to obtain data and documentation from any Medicare provider. Specifically, the
ACA provided the OIG the power “to obtain from any individual” that (1) is a “provider of medical or other items or services, supplier, grant recipient, contractor, or subcontractor” or (2) “directly or indirectly provides, orders, manufactures, distributes, arranges for, prescribes, supplies, or receives medical or other items or services” paid for by Medicare, claims and payment data and any supporting documentation. Unlike a grand jury subpoena, which is only issued when criminal liability is sought, an administrative subpoena may be issued by criminal or civil investigators. These civil and criminal investigators often work in parallel proceedings, sharing information with each other. What To Do If You Are Served With an Administrative Sub-
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Mercy is for the Weak... By Jonathon Kovar
“You may not control all the events that happen to you, but you can decide not to be reduced by them.” - Maya Angelou
“Only you can control your future.” - Dr. Seuss
You’ve probably heard a bad guy in a movie say something like, “Mercy is for the weak.” If you are like me, you have wondered if that is really true. Of course, before that question really sinks in and you’ve reached a conclusion, the bad guy always dies and we leave the theater subconsciously feeling good about how mercy is a gift and not a vice. For me, though, the question remains. Does being merciful make a person weak? As a business leader, does it weaken my organization? As a father, does it weaken my children? As a human, does it weaken my world? I have been studying what we typically call “mercy” for several years now. In the religious context, mercy is touted as a good thing. Without God’s mercy, where would humans like us be? As a Christian, I think that anything that is good for God, must be good for me too. If only I could imitate Him as well as I would like! That is the problem though; I can’t imitate God exactly. Sometimes, it seems like He lets people get away with all kinds of evil and lets really good, honest people suffer. I’ve seen it personally and felt its effects. I’m sure, in some Jonathon Kovar is CEO of HealthTrust Software, an author, speaker, and healthcare attorney.
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and the Strong
way, you have as well. The reason for this, I’m certain, is that God can see into the future, knows what is best for each of us and for His plan overall, and acts accordingly. As a human though, I don’t have that luxury. I can’t see the future and I can’t make decisions based upon what may or may not happen. I can try to predict the future, but I have to make deci-
True mercy is Jesus saying, “Go and sin no more.” It is not “I’ll cover you so you can keep on doing evil.” sions based upon facts as they exist today. So, then, is “mercy” a good thing in this frail, human context? My answer is both yes and no. I will speak specifically to business owners now, but the concept applies to parents, spouses, teachers, government leaders, and anyone else in a position of responsibility. Business owners have an obligation to ensure the viability of the business. There are times when mercy actually plays a role in helping the business succeed. When a vendor or employee falls on hard times, being merciful in your dealings with them may lead to a better relationship,
stronger partnerships, and increased workplace morale. When an employee is going through an illness, divorce, loss, or grieving period, being merciful and understanding should be hallmarks of any ethical CEO. It is good for the employee and it is good for the business, too. With that said, I do have one problem with “mercy” in the workplace. I put mercy in quotes because I don’t think it is truly merciful. It is the situation when a business owner allows a subordinate to take advantage of the company. I have seen owners, especially in home health agencies, accept the most pitiful excuses and insubordination from employees. When asked, they will simply say, “Oh, she is always like that” or “I don’t have anyone to replace him.” They often think they are being “merciful” by not holding the employee accountable. True mercy is Jesus saying, “Go and sin no more.” It is not “I’ll cover you so you can keep on doing evil.” The first is an example of mercy; the second is an accomplice. I used the word “evil” in the last paragraph intentionally. We live in a world where we pretend evil no longer exists. We try constantly to figure out why people act the way they do, as if by understanding them we can then Cont. on top of next page
trick them into behaving ethically. I have learned a hard lesson in this life: you can’t control others. There is no amount of psychological manipulation that will replace human free will and some people are just evil. True mercy requires holding those people accountable for their actions. As a business owner, you Cont. from cover
must show mercy to your entire organization by removing the people who undermine your success. Consider this article your permission slip to act with mercy toward your organization. If that means terminating the employment of consistent under-performers or negative personalities, then so be it. Mercy is not for the
poena 1. Review the subpoena. First and foremost, read and review the subpoena to understand what type of information and documentation is being sought. This may help you identify the reason for the investigation. 2. Issue a Hold Notice to all employees. Do not move, edit, or delete any documents that may be responsive to the subpoena, lest you be charged with “obstruction of justice.” This is particularly important for electronically stored information (“ESI”), such as emails, since the OIG can, and most likely will, review Metadata related to ESI. As such, a Hold Notice memorandum should be issued to employees explaining that, among other things, all ESI and physical evidence must be preserved and retained (in its current form) until further written notice. 3. Establish communication with the Government. Legal counsel should reach out to the OIG investigator(s) or Assistant US Attorney, if one is
weak. It is only for the strong. It takes courage to hold people accountable. It takes strength to call good good and evil evil. Don’t run from your obligations as a business owner. Your employees are counting on you to show true mercy today.
assigned to the case, to determine the facts underlying rationale for the subpoena. Sometimes, counsel may be able to discern if the Government has identified the supplier as a “target”, a “subject,” a “person of interest” or a “witness” – each of which term has a distinctive meaning and effect on the posture of the investigation. If you reach out to the OIG investigator(s) or Assistant US Attorney without counsel (which I do not suggest), you need to be cognizant of how the information you volunteer to the Government may be used against you. Communication with the Government is more about listening than it is talking. 4. Produce responsive documents. Prepare a strategy on how to collect and produce responsive documents in accordance with the subpoena’s requirements. Oftentimes, this is done through third-party forensic collection; however, in certain circumstances, a self-collection may be appropriate.
Recruiting Out of the Box
A beautiful night, games, free food on the grill, and a spattering of rock, country and classic music played by a professional DJ. Not your usual interview situation. Employees at HealthTrust Software mingled with approximately 200 interviewees last month in a recruiting event that was far from traditional. HTS Director of Operations Nathanael Boucher said the party was great for HTS
and for the recruits. “We were able to observe people in a non-interviewing process, in a non-typical environment. In this atmosphere, people lower their guards and we get a better glimpse of who they really are.” The event was also insightful for those looking for a job. They were able to see who and what HealthTrust does and get a better idea of the HTS culture by talking to the many current employees who attended the party. Boucher said a
good cross section of ages and degrees came: computer programmers, English and communication majors as well as an assortment of others. If they didn’t already bring them to the party, prospective employees are now encouraged to send in their resumes to HTS. Boucher says the party was such a success, they will plan on doing it again next year. 3
Child’s Play Therapeutic Homecare Melissa Caplinger Imagine having six bosses…that’s six bosses. all driven by the same goal. “We all have different exNow imagine that each day is not filled with petty periences, backgrounds and gifts to bring to the table.” politics, but that it is in fact phenomenal how each That means each has a unique part in the growth and boss uses his/her own gifts to build a company where prosperity of Child’s Play. therapists sing the praises of their administration to According to Melissa, the ideas that make other therapists. Imagine a place that doctors quickly Child’s Play work so differently from other agencies refer their patients to. A place that has grown from 1 to may not be revolutionary, but they are smart, practical, over 900 patients in less than 5 years. and begin with their own therapists. “Our therapists But it’s not imagination, it’s real. know that all of the owner’s doors are always open to Child’s Play Therapeutic Homecare in San Antothem. Donna and I are still out in the field some – but nio, Texas got its start when speech pathologist Melissa our therapists are out in the field ALL day. They have Caplinger began to dream with colleague and occuconcerns and ideas that we as owners need and want pational therapist Donna Perkins about how to best to listen to. What are the problems? What is working run a home health therapeutic agency. Both had done and what isn’t?” Like the old saying, “if Mama ain't contractual work for numerous good and bad agenhappy, ain't nobody happy,” the owners at Child’s Play cies. The more they talked, the more they knew they understand that if their therapists can’t focus on their saw eye to eye on how patients should be treated and jobs, if they get bogged down with paper work or silly business should run. “We both knew there had to be a office politics then they aren’t able to focus on the kids. better way to do things for the therapists and the kids. And that means unhappy therapists which translates We put our heads together and into unhappy kids, then brought in our husbands unhappy parents, and another family to figure out and unhappy dochow to do things right from a tors. “Our therapists business standpoint.” get to focus on their As with any organization patients, continued that begins from the ground education courses, up, there were growing pains, and get to shadow but their goals were clear. “We each other, workwanted to be effective, to treat ing many times the kids as effectively as possible as a team within with few interruptions in service one discipline, or that are usually due to insurance multi-disciplinary complications." TJ, Melissa’s husteams.” Melissa says band, having seen success as a their therapists are business owner, stockbroker, and Melissa and TJ Caplinger, 4-year-old Ellis, and so happy that the financial planner, did the research 1-year-old Trey at Disney World. company doesn't and wrote policies and procehave to advertise dures which Donna’s husband Jim, who was serving in much to gain more therapists. “Our fabulous therapists Afghanistan at the time, read and helped to polish via spread the word about us to their friends.” email from the other side of the world. Jim is back now Another element of their success and growing and he and TJ are in the office most days taking care of reputation as an excellent therapy company is the fact the day to day operations of the business. TJ’s partner that they never have a waiting list for their patients. from his insurance company, Terry Tunks and his wife “We always have more therapists available than spots Betty were persuaded to become partners as well. for patients. That means quick evaluations and quick “They are amazing. They work out of Dallas, so we don’t treatment. If the patients schedule or location is such get to see them as much as we would like, but they that we aren’t able to treat immediately, we refer back keep the financial end of the business on track.” to the doctor or another agency. We also work closely Having six owners has its own set of challenges, with other home health agencies to know who takes but Melissa says it works beautifully because they are what insurance and who has what availability.”
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Cont. from left With two kids, ages four and one, and one due to arrive in February, Melissa has a full plate. However, six owners and a software that is all online enables the Caplingers to have great flexibility. Melissa says that even though she is still in the field some, as an owner, a lot of her work is done when her kids have gone to bed, and her therapists are finished for the day (at 10pm). She then gets online and deals with problems that have come up. Her work schedule and shared
duties enable her family to travel a good deal, which is nice since their families live in New York and Florida. One agency with six strong willed, talented bosses. It could be a recipe for disaster for some. But according to Melissa, for children in the San Antonio area and their therapists, it’s a solidly run, inspirational agency whose leaders are both humble and innovative.
Jake Davis - HTS Programmer So young…and already doing so much. Jake Davis, HTS’s newest computer programmer is no slouch. He is a full-time computer science student with a minor in information technology, serves as president of the Stephen F. Austin State University Computer Science Club and is a part-time computer programmer at HTS.
will benefit from the relationship by gaining greater access to SFA’s top students. Resume books of all the students who are invited to the critical review sessions will be given to each company on the board. Jake believes the SFA computer
HTS Director of Operations Nathanael Boucher says “Jake has brought new enerAbove: brother Zach, mom Rose, Jake, and gy and skills to his dad Luke at their home in Arlington, HealthTrust. As Texas. Right: In his favorite place: snowpresident of the boarding in Colorado SFA computer science club, he also brings a science program welcome transparency to HTS has taught him and its relationship to SFA.” what he needs to Boucher is referring to an invibe successful at tation HealthTrust has recently HTS and in the field received from the computer in general. This science department at SFA to is true he says in spite of the sit on their advisory board. fact that the languages he has Jake explains that council learned in school are different judges on the board will garner from the ones HTS uses. “Once great practical advice from HTS you have learned new languagon the things that should be es, it helps for any you learn in taught in the program and HTS the future. “
Davis was hired in July and has since worked on many new features and bugs and has been on a crash course to learn about billing and home healthcare in general. He expects to graduate in May and begin full-time at HTS. For his distant future, he has his sites on a project manager position either at a video gaming company or HTS. He says he likes the atmosphere at HTS, mostly the Friday lunches. “Today we had ribs cooked out on the grill by Robert! They were excellent!” The only thing that would make it better? If those ribs were barbecued at the base of a ski slope in Colorado. Then, after a long day with his head in a computer, he could shake off the tension by grabbing his snowboard and hitting the slopes. 5
It's in the software....
ARE YOU USING IT? Customizations Under the Company Settings Go to the Administration Tab>Company Settings
Components Tab Includes several components as they relate to the use of HealthTrust Software.
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Holidays Tab Allows companies to set up their holiday SCHEDULE. This feature allows HealthTrust Software to automatically calculate holiday bonuses for agents who are scheduled to work on company holidays. To add a company holiday, click ADD HOLIDAY, enter the appropriate information, and then click SUBMIT to save.
Terminology Tab This option allows you to customize some of the terminology used throughout the system. For example, if you would like to change “agents” to “employees”, CLICK HERE TO SET UP TERMINOLOGY and then update the agent field to read “employees”. Click SUBMIT to save.
Please refer to the HTS user guide for more detailed instructions on how to use this feature.
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SOFTWARE TIPS From Your Customer Service Reps
1. Report Center: HealthTrust Software has over 140 reports in our report center and quick consultant module. If you are looking for a particular report and do not currently see it, go to Administration > Groups > select the user group that you are in > scroll to the bottom of the page and click the boxes “Click here to select reports” and “Click here to select consultant modules”. You can then select the reports you would like to access. Submit the changes. 2. Color Customization Option: If you would like to customize your user experience you can select a color scheme by going to File > preferences > select a color scheme > submit. 3. Default Schedule Preferences: HealthTrust Software allows you to customize your default schedule display by going to File > preferences > check the boxes that you would like to default when you view a schedule > submit.
4. Care Validation - Failed Visits: If you need to view visits that are failed back to clinicians from Care Validation, check the box “show all visits”. This will show visits that are in Care Validation needing
to be validated as well as visits failed back to clinicians.
5. Visit Status: If you have a visit that is in confirmed status and you need to put the visit back in Care Validation, go to the schedule or charges menu and select the date of service for the visit that you need to place in Care Validation. Clicking on the visit will open an edit charge screen. Change the status to “unconfirmed” and then click on the tracking tab and change the validation status to where nothing is selected. Submit the changes and the visit will then appear in Care Validation. 6. Online Point of Care: HealthTrust Software recommends that if you are working in the online Point of Care system to only have 1 internet browser tab or window open. Having multiple windows or tabs open has the risk for your information not saving correctly. 7. Home Screen Options: Did you know that you can customize what screen appears first when you log in to the online system? You can choose to either view the home page or the dashboard when you first log in. You can select your preference by going to File > preferences > and check-
ing the box “show home page on login” or uncheck the box “show home page on login” to see the dashboard. 8. Medical Records: Did you know HealthTrust Software has a Medical Records module where you can view all of your patients medical records or filter by patient or type of document? This module can be accessed by going to Patients > Medical Records. 9. Medical Records: In order for a visit to show in the Medical Records module, the visit must have been completed in Point of Care and passed through Care Validation. 10. Care Validation Group Setting: If you have users who cannot find a particular type of service in Care Validation, check the user group to verify if the group has access to the type of service. The user group can be verified by going to Administration > Groups > select the group that the user is in > scroll down to the “Compliance Menu” section. You can select to limit to service code or limit to service category. Submit the changes.
SOFTWARE UPDATES
REPORT SECTION - The ‘All Answers’ report will now include the name and title of the agent who answered the audit questions.
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BILLING SECTION - UB-04 claims that are transfers will now show type UB-92 on the Charges tab of the claim as well as on the claims reports.
ORDERS/AUTHORIZATION -When adding an auth, either from the patient menu, auth menu, or episode schedule, clicking the magnifying glass to select a patient now works properly, regardless of whether or not iframe menus are being used. - When users go to the Edit Pending Claim screen and select
the insurance tab, selecting an auth number by clicking the magifying glass next to the Auth # field and selecting the number now properly populates the number into the field. OTHER - Clock in/Clock out timesheet entries will now appear on the dashboard calendar.
The Pilgrims made seven times more graves than huts. No Americans have been more impoverished than these who, nevertheless, set aside a day of thanksgiving. ~H.U. Westermayer
Happy Thanksgiving! from HealthTrust Software
Thanksgiving dinners take eighteen hours to prepare. They are consumed in twelve minutes. Half-times take twelve minutes. This is not coincidence. ~Erma Bombeck
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