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Posts Tagged ‘Nursing Homes’

Skilled Nursing Facility and Nursing Home Initiatives – OIG 2017 Annual Work Plan

Thursday, January 19th, 2017

Skilled Nursing Facility and Nursing Home Initiatives
OIG 2017 Annual Work Plan

The OIG’s 2017 Annual Work Plan identified a few new areas of focus relating to nursing homes and skilled nursing facilities. Nursing home compliance officers should consider these newly identified issues when developing their annual compliance work plan.

Investigation of Serious Nursing Home Conditions

The Work Plan references a 2006 OIG report which found that state agencies failed to investigate in a timely manner some of the most serious complaints regarding nursing home conditions. The report referenced nursing home complaints involving immediate jeopardy and/or actual harm to residents. Complaints that rise to this level of severity are to be investigated by applicable state agencies within a 2 and 10 day timeframe. The Work Plan states that OIG will determine the extent to which State agencies investigate serious nuring home complaints within the required timeframes. Nursing homes can expect this to put more pressure on states that are responsible for these investigations to meet these timeframes on a more regular basis.

Unreported Incidents of Potential Abuse and Neglect

This newly identified topic relates to skilled nursing facilities. The OIG states that is plans to “assess” the incidence of abuse and neglect that occurs in skilled nursing facilities. It then plans to make a determination whether these incidents were properly reported and investigated as required under applicable Federal and state law. It appears that the OIG will be taking a sampled representation of cases to investigate. This conclusion can be garnered from reference in the Work Plan to “sampled” incident reports. The OIG plans to interview state officials to assure that incident reports that are examined under its sampling system were reported as required under law. The OIG plans to go even further and determine whether each reportable incident was investigated and subsequently prosecuted by the state.

This area could create some immediate risk exposure to facilities who are sampled as part of the OIG’s investigation. Facilities who are found to have failed to appropriately report potential abuse and neglect incidents could be subject to sanctions.

Review of SNF Use of Minimum Data Set Tool

the OIG states that it will review documentation of selected Skilled Nursing Facilities to determine whether Minimum Data Set Tool have been properly used to determine the severity of the patient’s condition. SNF reimbursment is tied to the severity of the patient’s condition through application of this tool. Periodic assessments must be performed on each patient by applicable skilled nursing facility. Improper use of the tool results in higher reimbursment than may be justified by the patient’s condition.

This issue was called out by previous OIG studies that indicated higher levels of reimbursement were being paid due to improper use of the Minimum Data Set Tool. Again, this is an area of specific concern for facilities who are lucky enough to be selected for audit by the OIG. If the facility is found to have improperly assessed patient severity, overpayment and potential penalties may be imposed. A finding on a small sample could also lead to expansion past the initially reviewed cases.

Fraud Risks In Nursing Home/Hospice Relationships

Wednesday, October 30th, 2013

Fraud Risks Between Nursing Homes and Hospice Providers

Hospice Nursing Home Fraud and AbuseRelationships between hospices and nursing homes are a particular area of concern.  OIG is inherently suspicious of benefits that hospices may provide to nursing homes in order to gain hospice referrals of nursing home patients.  For example, if a hospice provides services to nursing home patients that are normally provided by the nursing home, the benefit could be deemed to be a “kickback” for referrals.  Hospices should have clear policies and procedures regarding the scope of services to be provided to nursing home patients.  Any formal agreement with a nursing home should be carefully scrutinized to assure compliance and provision should be added agreeing to the appropriate scope of care that is to be provided to nursing home patients.

Government focus on hospice providers should heighten awareness to these issues.  Hospices must make certain that they have formal compliance programs in place and that the compliance program is actively operated to identify and address risk.  Certainly, the risks identified above should be addressed by all hospice providers.  There are a broad range of additional items that should be actively addressed.  Additionally, all elements of the compliance program should be fully operationalized.  Even the most robust compliance program will not necessarily detect all compliance problems.  It is important that hospice providers are able to demonstrate that they are continually monitoring risk and operating their program.  When undetected programs come to light, the hospice provider will be able to show that reasonable steps are routinely taken to identify and correct problems.  This will go a long ways toward reducing potential exposure, even in cases where risk is not detected through the program.

Nursing Home Compliance Programs – ACA Statutory Mandate

Tuesday, March 26th, 2013

Mandatory Compliance Program Requirements – Affordable Care Act Statutory Mandate

Provisions of Affordable Care Act Relating to Mandatory Compliance Programs For Nursing Facilities

 

SEC. 6102. ACCOUNTABILITY REQUIREMENTS FOR SKILLED NURSING

FACILITIES AND NURSING FACILITIES.

Part A of title XI of the Social Security Act (42 U.S.C. 1301 et seq.), as amended by sections 6002 and 6004, is amended by inserting after section 1128H the following new section:

‘‘SEC. 1128I. ACCOUNTABILITY REQUIREMENTS FOR FACILITIES.

‘‘(a) DEFINITION OF FACILITY.—In this section, the term ‘facility’ means—

‘‘(1) a skilled nursing facility (as defined in section 1819(a)); or

‘‘(2) a nursing facility (as defined in section 1919(a)).

‘‘(b) EFFECTIVE COMPLIANCE AND ETHICS PROGRAMS.—

‘‘(1) REQUIREMENT.—On or after the date that is 36 months after the date of the enactment of this section, a facility shall, with respect to the entity that operates the facility (in this subparagraph referred to as the ‘operating organization’ or ‘organization’), have in operation a compliance and ethics program that is effective in preventing and detecting criminal, civil, and administrative violations under this Act and in promoting quality of care consistent with regulations developed under paragraph (2).

‘‘(2) DEVELOPMENT OF REGULATIONS.—

‘‘(A) IN GENERAL.—Not later than the date that is 2 years after such date of the enactment, the Secretary, working jointly with the Inspector General of the Department of Health and Human Services, shall promulgate regulations for an effective compliance and ethics program for operating organizations, which may include a model compliance program.

‘‘(B) DESIGN OF REGULATIONS.—Such regulations with respect to specific elements or formality of a program shall, in the case of an organization that operates 5 or more facilities, vary with the size of the organization, such that larger organizations should have a more formal program and include established written policies defining the standards and procedures to be followed by its employees. Such requirements may specifically apply to the corporate level management of multi unit nursing home chains.

‘‘(C) EVALUATION.—Not later than 3 years after the date of the promulgation of regulations under this paragraph, the Secretary shall complete an evaluation of the compliance and ethics programs required to be established under this subsection. Such evaluation shall determine if such programs led to changes in deficiency citations, changes in quality performance, or changes in other metrics of patient quality of care. The Secretary shall submit to Congress a report on such evaluation and shall include in such report such recommendations regarding changes in the requirements for such programs as the Secretary determines appropriate.

 

‘‘(3) REQUIREMENTS FOR COMPLIANCE AND ETHICS PROGRAMS.—

In this subsection, the term ‘compliance and ethics program’ means, with respect to a facility, a program of the operating organization that—‘‘(A) has been reasonably designed, implemented, and enforced so that it generally will be effective in preventing and detecting criminal, civil, and administrative violations under this Act and in promoting quality of care; and ‘‘(B) includes at least the required components specified

in paragraph (4).

‘‘(4) REQUIRED COMPONENTS OF PROGRAM.—The required components of a compliance and ethics program of an operating organization are the following:

‘‘(A) The organization must have established compliance standards and procedures to be followed by its employees and other agents that are reasonably capable of reducing the prospect of criminal, civil, and administrative violations under this Act.

‘‘(B) Specific individuals within high-level personnel of the organization must have been assigned overall responsibility to oversee compliance with such standards and procedures and have sufficient resources and authority to assure such compliance.

‘‘(C) The organization must have used due care not to delegate substantial discretionary authority to individuals whom the organization knew, or should have known through the exercise of due diligence, had a propensity to engage in criminal, civil, and administrative violations under this Act.

‘‘(D) The organization must have taken steps to communicate effectively its standards and procedures to all employees and other agents, such as by requiring participation in training programs or by disseminating publications that explain in a practical manner what is required.

‘‘(E) The organization must have taken reasonable steps to achieve compliance with its standards, such as by utilizing monitoring and auditing systems reasonably designed to detect criminal, civil, and administrative violations under this Act by its employees and other agents and by having in place and publicizing a reporting system whereby employees and other agents could report violations by others within the organization without fear of retribution.

‘‘(F) The standards must have been consistently enforced through appropriate disciplinary mechanisms, including, as appropriate, discipline of individuals responsible for the failure to detect an offense.

‘‘(G) After an offense has been detected, the organization must have taken all reasonable steps to respond appropriately to the offense and to prevent further similar offenses, including any necessary modification to its program to prevent and detect criminal, civil, and administrative violations under this Act.

‘‘(H) The organization must periodically undertake reassessment of its compliance program to identify changes necessary to reflect changes within the organization and its facilities.

CMS Improvement Standard Case Settlement

Tuesday, October 23rd, 2012

CMS Settles Class Action Reversing Nursing Home Improvement Standard

It is being reported that the Center for Medicare Advocacy, Inc. has settled its class action suit with the Center for Medicare and Medicaid Services regarding the “improvement standard” that CMS has historically required in order to continue Medicare reimbursement for patients in nursing homes. The “improvement standard” resulted in Medicare coverage being denied in cases where a patient’s condition was found to be stable, chronic, not improving, or for “maintenance only.”

The proposed settlement agreement will require CMS to revise relevant portions of its Medicare Benefit Policy Manual to clarify coverage standards for skilled nursing facilities, home health, and outpatient therapy benefits when a patient has not restoration or improvement potential but still needs the services that are provided by those types of providers. CMS is also required to clarify similar coverage standards that are applicable to inpatient rehabilitation facilities.

The settlement agreement provides for input by counsel representing the class into the process of developing new manual provisions that conform with the settlement.

The class action suit has alleged that Medicare routinely denied coverage based on the improvement standard. The settlement will require CMS to clarify that the improvement standard will no longer be applied to deny coverage. The people most affected by this barrier include people living with a range of conditions including multiple sclerosis, Alzheimer’s disease, ALS (Lou Gehrig’s disease), spinal cord injuries, diabetes, Parkinson’s disease, hypertension, arthritis, heart disease, and stroke. Many of these individuals who were not showing progress but still required care, and the institutions that serve them, will not be able to obtain reimbursement for services that they require.

Center for Medicare Advocacy Link

OIG 2013 Work Plan Nursing Home Hospice Home Health Provisions

Friday, October 5th, 2012

 

OIG Work Plan 2013 – Provisions Affecting Nursing Homes, Home Health and Hospices

 Nursing Homes—State Agency Verification of Deficiency Corrections (New)

Nursing Homes—Use of Atypical Antipsychotic Drugs (New)

Nursing Homes—Oversight of the Minimum Data Set Submitted by Long-Term-Care Facilities (New)

Nursing Homes— Adverse Events in Post-Acute Care for Medicare Beneficiaries

Nursing Homes—Medicare Requirements for Quality of Care in Skilled Nursing Facilities

Nursing Homes—Oversight of Poorly Performing Facilities

Nursing Homes—Hospitalizations of Nursing Home Residents

Nursing Homes—Questionable Billing Patterns for Part B Services During Nursing Home Stays

 

Hospices

Hospices—Marketing Practices and Financial Relationships with Nursing Facilities

Hospices—General Inpatient Care

 Home Health Services

  HHAs—Home Health Face-to-Face Requirement (New)

 HHAs—Employment of Home Health Aides With Criminal Convictions (New)

 HHAs—States’ Survey and Certification: Timeliness, Outcomes, Followup, and Medicare Oversight

 HHAs—Missing or Incorrect Patient Outcome and Assessment Data

 HHAs—Medicare Administrative Contractors’ Oversight of Claims

 HHAs—Home Health Prospective Payment System Requirements

 HHAs—Trends in Revenues and Expenses

Mandatory Compliance Programs for Nursing Facilities and Skilled Nursing Facilities

Wednesday, July 18th, 2012

Mandatory Compliance Programs for Nursing Facilities and Skilled Nursing Facilities

SEC. 1128I. ACCOUNTABILITY REQUIREMENTS FOR FACILITIES.

  • (a) Definition of Facility- In this section, the term `facility’ means–
    • (1) a skilled nursing facility (as defined in section 1819(a)); or
    • (2) a nursing facility (as defined in section 1919(a)).
  • (b) Effective Compliance and Ethics Programs-
    • (1) REQUIREMENT- On or after the date that is 36 months after the date of the enactment of this section, a facility shall, with respect to the entity that operates the facility (in this subparagraph referred to as the `operating organization’ or `organization’), have in operation a compliance and ethics program that is effective in preventing and detecting criminal, civil, and administrative violations under this Act and in promoting quality of care consistent with regulations developed under paragraph (2).
    • (2) DEVELOPMENT OF REGULATIONS-
      • (A) IN GENERAL- Not later than the date that is 2 years after such date of the enactment, the Secretary, working jointly with the Inspector General of the Department of Health and Human Services, shall promulgate regulations for an effective compliance and ethics program for operating organizations, which may include a model compliance program.
      • (B) DESIGN OF REGULATIONS- Such regulations with respect to specific elements or formality of a program shall, in the case of an organization that operates 5 or more facilities, vary with the size of the organization, such that larger organizations should have a more formal program and include established written policies defining the standards and procedures to be followed by its employees. Such requirements may specifically apply to the corporate level management of multi unit nursing home chains.
      • (C) EVALUATION- Not later than 3 years after the date of the promulgation of regulations under this paragraph, the Secretary shall complete an evaluation of the compliance and ethics programs required to be established under this subsection. Such evaluation shall determine if such programs led to changes in deficiency citations, changes in quality performance, or changes in other metrics of patient quality of care. The Secretary shall submit to Congress a report on such evaluation and shall include in such report such recommendations regarding changes in the requirements for such programs as the Secretary determines appropriate.
    • (3) REQUIREMENTS FOR COMPLIANCE AND ETHICS PROGRAMS- In this subsection, the term `compliance and ethics program’ means, with respect to a facility, a program of the operating organization that–
      • (A) has been reasonably designed, implemented, and enforced so that it generally will be effective in preventing and detecting criminal, civil, and administrative violations under this Act and in promoting quality of care; and
      • (B) includes at least the required components specified in paragraph (4).
    • (4) REQUIRED COMPONENTS OF PROGRAM- The required components of a compliance and ethics program of an operating organization are the following:
      • (A) The organization must have established compliance standards and procedures to be followed by its employees and other agents that are reasonably capable of reducing the prospect of criminal, civil, and administrative violations under this Act.
      • (B) Specific individuals within high-level personnel of the organization must have been assigned overall responsibility to oversee compliance with such standards and procedures and have sufficient resources and authority to assure such compliance.
      • (C) The organization must have used due care not to delegate substantial discretionary authority to individuals whom the organization knew, or should have known through the exercise of due diligence, had a propensity to engage in criminal, civil, and administrative violations under this Act.
      • (D) The organization must have taken steps to communicate effectively its standards and procedures to all employees and other agents, such as by requiring participation in training programs or by disseminating publications that explain in a practical manner what is required.
      • (E) The organization must have taken reasonable steps to achieve compliance with its standards, such as by utilizing monitoring and auditing systems reasonably designed to detect criminal, civil, and administrative violations under this Act by its employees and other agents and by having in place and publicizing a reporting system whereby employees and other agents could report violations by others within the organization without fear of retribution.
      • (F) The standards must have been consistently enforced through appropriate disciplinary mechanisms, including, as appropriate, discipline of individuals responsible for the failure to detect an offense.
      • (G) After an offense has been detected, the organization must have taken all reasonable steps to respond appropriately to the offense and to prevent further similar offenses, including any necessary modification to its program to prevent and detect criminal, civil, and administrative violations under this Act.
      • (H) The organization must periodically undertake reassessment of its compliance program to identify changes necessary to reflect changes within the organization and its facilities.
  • (c) Quality Assurance and Performance Improvement Program-
    • (1) IN GENERAL- Not later than December 31, 2011, the Secretary shall establish and implement a quality assurance and performance improvement program (in this subparagraph referred to as the `QAPI program’) for facilities, including multi unit chains of facilities. Under the QAPI program, the Secretary shall establish standards relating to quality assurance and performance improvement with respect to facilities and provide technical assistance to facilities on the development of best practices in order to meet such standards. Not later than 1 year after the date on which the regulations are promulgated under paragraph (2), a facility must submit to the Secretary a plan for the facility to meet such standards and implement such best practices, including how to coordinate the implementation of such plan with quality assessment and assurance activities conducted under sections 1819(b)(1)(B) and 1919(b)(1)(B), as applicable.
    • (2) REGULATIONS- The Secretary shall promulgate regulations to carry out this subsection.’.

John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
500 First Street, Suite 8000
P.O. Box 8050
Wausau, WI 54402-8050

Tel 715.845.4336
Fax 715.845.2718

Ruder Ware is a member of Meritas Law Firms Worldwide

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