National Association of Attorneys General
Protecting Ohioans Getting In Home Care: Prosecutorial and Legislative Solutions
Due to the growth of home health over the past decade, many Medicaid home health workers are present in the homes of Ohioans who are least able to fend for themselves: disabled children and adults, and the elderly. Medicaid had rules against individuals with serious criminal convictions from providing direct care to these vulnerable individuals. Yet even with the required criminal background checks, criminals were slipping through the cracks.
As many attorneys general will tell you, we got into this business to lock up the bad guys. But what happens when those criminals we seek to lock up are being placed in the homes of Medicaid recipients? It is a recipe for disaster.
Yet that is exactly how the Ohio system operated prior to Jan. 1, 2012. The Ohio Attorney General�s Medicaid Fraud Control Unit (MFCU) conducted an investigation uncovering many criminals who were legally permitted to provide direct care to Medicaid recipients in their homes. The MFCU�s investigation found that different state agencies had different regulations of home health workers, depending upon the certification of the home health agency and/or the agency paying for the work. Each agency (Job & Family Services, Health, Aging, and Developmental Disabilities) had a different set of rules. Not only did each agency apply different rules, but also many of these rules were seriously deficient.
The Ohio MFCU received a referral from a Medicaid consumer who discovered through the Internet that his home health aide had a significant criminal history. She had convictions for drug possession, aggravated assault, drug trafficking, and an arrest for a firearms violation. Based on this allegation, our office opened a criminal investigation into the home health agency, A Caring Alternative, which employed the home health aide. One of our special agents ran a search of the company�s employees. Out of 900 employees, 300 were found to have a criminal record. Of those 300, our agent selected a sample of 30 employees and requested their employee files. The employee files showed that criminal background checks were being performed, but ignored. In fact, many of the criminals marked on their applications that they had a felony record. One went so far as mentioning he was just released from prison, while another wrote under convictions �I can explain.�
By going through the records, our agent began to notice a pattern. A "Caring Alternative" was hiring a disproportionate number of criminals to be home health aides. Our first concern was protecting those individuals who were receiving care, so we investigated reports of abuse, neglect and theft in the homes of Medicaid recipients receiving care from A Caring Alternative. Many of the hired criminals were providing care to their own parents. In one instance of neglect the mother was left sleeping on the floor in complete filth for several days. In another instance, a son left his father on the floor for three days, after a fall, before calling the paramedics. During this time the son submitted time sheets alleging he provided eight hours of home health aide services each day. Those claims were paid by Medicaid. In another instance, a woman was convicted of domestic violence for throwing a wine glass at her mother, the Medicaid recipient she was paid to care for. Through numerous interviews we discovered that A Caring Alternative was intentionally hiring disqualified employees so long as they brought a client (normally their parent). It was a win-win situation for A Caring Alternative: they received additional monies from the state, while the felons were happy to have a job, and their parents were not likely to complain about their son or daughter. This was a situation crying out for action.
In order to criminally prosecute A Caring Alternative, several issues were immediately apparent. First, how do you prove A Caring Alternative knowingly and intentionally hired disqualified employees, when it wasn�t even clear which agency�s rules applied? It was determined that, because A Caring Alternative was a Medicare-certified home health agency, the Ohio Department of Health�s rules applied.
More disconcerting was the fact that some of the worst criminal offenders could legally be employed by A Caring Alternative. The Department of Health�s rules did not require background checks of employees providing direct care to a Medicaid consumer between the ages of 18 and 60. For example, a person who was convicted of rape or murder could provide care to a 45-year-old quadriplegic Medicaid consumer. Other loopholes caught our attention as well. Shockingly convicted thieves could care for minors, there were no prohibitions on convictions for �attempt� (i.e. a person convicted of attempted rape or attempted murder was not excluded), and there was no requirement for recurring background checks (i.e. a person could be hired, two days later convicted of felonious assault against her mother, and still be paid by the state to provide care to her mom).
As a Medicaid Fraud Control Unit, our office is required to meet 12 performance standards. These performance standards must be met for certification and recertification. One of the performance standards is to make program recommendations. �A Unit should make statutory or programmatic recommendations, when necessary, to the State government.� SSA 1902(a)(61) Thus, upon discovery of the disconnect amongst the agencies and the loopholes in the statutes, it was determined that program recommendations must be made.
We sent a letter to the heads of each agency expressing concern about the loopholes, as well as the lack of consistency. If an agency had to follow six different rules, it would be nearly impossible to enforce the rules. Our request was simple: protect Ohio�s most vulnerable citizens by creating one set of comprehensive rules, eliminating the loopholes.
The governor�s Office of Health Transformation heard our request and took action. Meetings were held with the heads of the agencies with one common goal in mind: make the rules consistent and clear. Quickly, the agencies drafted a new set of rules that would be consistently applied across all agencies, eliminating the loopholes. Ohio adopted a tiered approach, whereby convictions for certain offenses are permanent bans to employment in home health. Convictions for less serious offenses require a five- or three-year prohibition. Recurring background checks are now required. In addition, the agencies worked together to obtain a grant creating a RAP-BACK program, whereby once an employee�s background is run through the system any new offenses will pop up and report back to the agency.
The co-owners and the corporation of A Caring Alternative were each charged with theft, for knowingly deceiving the Ohio Department of Medicaid, formerly operated under the Ohio Department of Job and Family Services. One owner pled guilty to a reduced charge, with the agreement to pay restitution in the amount of $261,870.98, and to testify against the co-owner. The judge also prohibited her from owning or operating another home health agency. The other owner was acquitted by the judge. The Corporation was convicted and sentenced to a $15,000 fine in addition to being jointly and severally liable for the restitution.
Our Medicaid Fraud Control Unit has done a great job working to help ensure that Ohio Medicaid home health recipients are getting care from qualified individuals, and that taxpayer dollars are being spent properly.