CMS recently issued guidance to the State Survey Agencies regarding changes to the survey procedures for Home Health Agencies (HHAs).  Effective January 1, 2011, the Centers for Medicare & Medicaid Services (CMS) Home Health Prospective Payment System (PPS) final rule amended the regulations for certification activities related to HHAs.  CMS’s goal in implementing these changes is to ensure that a newly-sold HHA is in compliance with the applicable Conditions of Participation (CoPs).

Specifically, the revised policies affect the enrollment of HHAs that undergo a change of ownership (CHOW) (i) within three (3) years of their initial Medicare enrollment; or (ii) within three (3) years of a previous change in majority ownership.  A change in majority ownership is a transaction in which the HHA experiences more than a fifty percent (50%) change in direct ownership by either an individual or an organization (i) during the thirty-six (36) months after the HHA’s initial Medicare enrollment; or (ii) thirty-six (36) months after its most-recent change in majority ownership.  

If an HHA is subject to the “36-month rule,” then the provider agreement and Medicare billing privileges do not transfer to the new owner.  Consequently, the new owner must obtain an initial survey from the State Survey Agency or a CMS-approved accreditation organization to participate in the Medicare program. 

However, four (4) exceptions to the new requirements exist.  The HHA is not subject to the new requirements:  (1) the HHA has submitted two (2) consecutive years of full cost reports; (2) the HHA parent company is undergoing an internal corporate restructuring such as a merger or consolidation; (3) the owners of an existing HHA are changing the existing business structure but the owners remain the same; or (4) an individual owner of an HHA dies.

The Memorandum can be accessed at:  http://www.cms.gov/Surveycertificationgeninfo/downloads/SCLetter12_15.pdf

If you have questions or concerns regarding the foregoing or would like additional information, please contact your regular Hall Render attorney, or Todd Selby at tselby@hallrender.com or 317.977.1440; Brian Jent at bjent@hallrender.com or 317.977.1402; or David Bufford at dbufford@hallrender.com or 502.568.9368. 

On February 8, 2012, the Office of Inspector General (OIG) for the Department of Health and Human Services issued an Alert cautioning physicians who reassign their Medicare benefits. The Alert included precautions to physicians to perform appropriate due diligence of the entities to which they reassign their benefits.

The OIG also alerted physicians to utilize sufficient caution when reassigning benefits to an entity for which the physician is serving as the medical director. Physicians should be aware of their right to review any claims submitted to the Medicare program via their reassigned Medicare billing privileges. According to the Alert, a recent failure by physicians to monitor such claims resulted in unqualified individuals acting as physical therapy “technicians” resulting in inappropriate Medicare claims. The failure of these physicians to monitor claims submitted via reassignment resulted in the OIG determining the physicians were an integral part of the billing scheme.

A copy of the OIG Alert is available at: http://oig.hhs.gov/compliance/alerts/guidance/20120208.asp

As part of their on-going video series, the Office of Inspector General (OIG) has posted a video on their self-disclosure protocols.

Self-disclosure is a key element of an effective compliance program, and can possibly reduce any civil monetary penalties (CMPs) associated with a violation or instance of noncompliance.

The OIG has provided many videos in this series that are beneficial for long-term care providers.  The full list of videos is available on the OIG Website.

Should you have any questions, please contact:
Todd Selby at 317.977.1440 or tselby@hallrender.com;
Brian Jent at 317.977.1402 or bjent@hallrender.com; or
David Bufford at 502.568.9368 or dbufford@hallrender.com,
or your regular Hall Render attorney.

The Centers for Medicare & Medicaid Services (CMS) has published a transmittal detailing changes for coding hospice discharges, which will provide greater clarity as to why the patient has been discharged from hospice care.   (more…)

The Centers for Medicare & Medicaid Services (CMS) has pushed back the start of two anti-fraud programs to June due to provider concerns.  Two pilot programs, one that would require prior authorization for scooters and power wheelchairs and one allowing recovery audit contractors (RAC) to review claims prior to payment, were initially slated to begin January 1, 2012.   (more…)

The New York Times (NYT) had an interesting article in their The New Old Age segment that described the issues men have in finding appropriate long-term care facilities.  The article highlighted an intuitive, yet often overlooked issue concerning the number of rooms a facility has versus the number of beds.  Many facilities have two beds in most rooms; these semi-private rooms have restrictions that require the residents to be the same sex.  As most residents in long-term care are female, finding another female to share a semi-private room is generally not difficult.  However, placing a male in semi-private room requires another male resident to fill the room. 

This demonstrates some of the issues long-term care providers must resolve.  While the facility is obviously limited in having males and females share semi-private rooms, having an odd number of male residents could result in empty beds, yet the inability to fill them.  With costs increasing, and governmental reimbursement cuts, facilities have to operate at a high census to remain solvent.  Quality of care and non-discriminatory admissions policies clearly should take precedence over profitabilty, but this does highlight both a current and future issue as more people require long-term care.

Should you have any questions, please contact:
Todd Selby at 317.977.1440 or tselby@hallrender.com;
Brian Jent at 317.977.1402 or bjent@hallrender.com; or
David Bufford at 502.568.9368 or dbufford@hallrender.com,
or your regular Hall Render attorney.

The Centers for Medicare & Medicaid Services (CMS) has responded to criticism detailing how Medicare contractors present hospice service charges in the Medicare Summary Notice (MSN) to beneficiaries.  In recent years, CMS has added new reporting requirements for visit data on hospice claims.  This resulted in an expansion of the information of the claim record to better understand the services provided under the hospice benefit.  However, the new data cause confusion for Medicare beneficiaries when they reviewed their MSN.

Effective July 1, 2012, with an implementation date of July 2, 2012, CMS will revise the presentation of hospice cost charges on the MSN.  The revised MSN will be similar to the home health MSN and more accurately reflect the claim data.

This change should reduce beneficiary confusion and present the hospice claim data more clearly.  Visit-charge descriptions will inform beneficiaries that the hospice service charge is included in the payment for the hospice daily level of care.  This will alleviate the perception of some hospice beneficiaries that they will be billed individually for covered services.

Should you have any questions, please contact:
Todd Selby at 317.977.1440 or tselby@hallrender.com;
Brian Jent at 317.977.1402 or bjent@hallrender.com; or
David Bufford at 502.568.9368 or dbufford@hallrender.com,
or your regular Hall Render attorney.

The Centers for Medicare & Medicaid Services (CMS) has issued a proposed rule that enacts a provision of the Patient Protection and Affordable Care Act (PPACA) that seeks to make Medicaid reimbursement for medications more transparent and more closely aligned with what pharmacies pay for the drugs.  In a press release, CMS states the rule will save states and taxpayers $17.7 billion on prescription drugs over the next five years.  The regulations would also increase the rebates paid by drug makers that participate in Medicaid and would establish rebates for drugs provided to enrollees in Medicaid managed-care plans.  Comments will be accepted on the proposed rule until April 2, 2012, with a final rule scheduled for 2013.

Should you have any questions, please contact:
Todd Selby at 317.977.1440 or tselby@hallrender.com;
Brian Jent at 317.977.1402 or bjent@hallrender.com; or
David Bufford at 502.568.9368 or dbufford@hallrender.com,
or your regular Hall Render attorney.

The Department of Justice (DOJ) has recommended to the Supreme Court of the United States (SCOTUS) that only the provisions of the Patient Protection and Affordable Care Act (PPACA) that require insurers to accept everyone regardless of health status and to apply “community rates” be overturned if the Justices rule that the law’s mandate is unconstitutional.   (more…)

The Centers for Medicare & Medicaid Services (CMS) released updated guidance on Section 6501 of the Patient Protection and Affordable Care Act (PPACA) that requires state Medicaid agencies to terminate the participation of any individual or entity if such individual or entity is terminated under Medicare or any other state Medicaid plan.   (more…)

This week, the Centers for Medicare & Medicaid Services (CMS) updated Section 40.1 of Publication 100-1, the Medicare General Information, Eligibility and Entitlement Manual, to reflect Section 3108 of the Patient Protection and Affordable Care Act (PPACA).  This update permits physician assistants to perform the initial certifications and recertifications of a beneficiary’s need for skilled nursing facility (SNF) level care.

This update’s implementation date is February 13, 2012, and is effective for services furnished on or after January 1, 2011.   (more…)

So-called “superbugs”, those bacteria strains that have developed resistance to antibiotics, have long generated high levels of concern for hospitals and long-term care facilities.  These infections are difficult to treat, and often generate serious complications for individuals with already impaired immune systems.  The Wall Street Journal (WSJ) today published a note detailing efforts by researchers to restore the antibiotic sensitivity of some of these superbugs.  The researchers utilize a process called lysogenization, whereby resistant bacteria is targeted with bacteriophages, viruses that can infect bacteria.  

Initial results showed certain strains of bacteria regained sensitivity to antibiotic treatment after the lysogenization process.  However, researchers point out this technique has not yet been attempted on the most pervasive of the health care superbugs, methicillin-resistant Staphylococcus aureus (MRSA).

Should you have any questions, please contact:
Todd Selby at 317.977.1440 or tselby@hallrender.com;
Brian Jent at 317.977.1402 or bjent@hallrender.com; or
David Bufford at 502.568.9368 or dbufford@hallrender.com,
or your regular Hall Render attorney.

The Medicare Payment Advisory Commission (MedPAC) voted on Wednesday of this week to recommend to Congress a significant change in the way skilled nursing facilities (SNFs) are reimbursed under the Medicare program within the next two years.  (more…)

Under the Patient Protection and Affordable Care Act (PPACA), skilled nursing facilities (SNFs) are required to seperately report expenditures for wages and benefits for direct care staff (breaking out (at a minimum) registered nurses, licensed professional nurses, certified nurse assistants, and other medical and therapy staff).  CMS recently posted updates to the Provider Reimbursement Manual detailing the changes, and guidance on completing the new cost report forms.    (more…)

Effective January 1, 2012, all standard and/or complaint surveys initiated on or after January 1, 2012, that generate an enforcement action, will be subject to the new Federal requirements governing the Independent IDR process.  The State survey agency must develop a written process that will then be approved by the Centers for Medicare & Medicaid Services (CMS).  Revisit surveys associated with standard and/or complaint surveys conducted prior to the effective date are not affected by the new regulations.

The purpose of the Independent IDR process is to provide a nursing facility, under certain circumstances, an opportunity to dispute cited deficiencies through a process that is unrelated to the State survey agency.  The circumstances under which nursing facilities qualify for the Independent IDR are those in which a CMS enforcement action is imposed and a civil money penalty (CMP) is (i) assessed; (ii) subject to collection or collected; and (iii) placed in an escrow account by CMS.  Initially, CMS will limit the assessment, collection, and placement in escrow of CMPs to deficiencies cited at or higher than a G level. 

Anytime CMS imposes and collects or proposes to collect a CMP, the Independent IDR must be offered to the affected nursing facility free of charge.  CMS must offer the Independent IDR to the nursing facility within thirty (30) days of providing notice of the imposition of the CMP.  The nursing facility must request the Independent IDR within ten (10) days of its receipt of the offer. 

The Memorandum can be accessed at: http://www.cms.gov/Surveycertificationgeninfo/downloads/SCLetter12_08.pdf

If you have questions or concerns regarding the foregoing or would like additional information, please contact your regular Hall Render attorney, or Todd Selby at tselby@hallrender.com or 317.977.1440; Brian Jent at bjent@hallrender.com or 317.977.1402; or David Bufford at dbufford@hallrender.com or 502.568.9368.

In December, the Office of the Inspector General (OIG) released an initial series of videos aimed at providers that focus on compliance issues.  These videos are part of the Health Care Fraud Prevention and Enforcement Action Team (HEAT) Provider Compliance Training initiative.  Health & Human Services Inspector General Daniel Levinson stated the videos are intended to help providers further enhance their compliance efforts.  (more…)

The Centers for Medicare & Medicaid Services (CMS) has issued revisions to the process Home Health Agencies (HHA) must undergo prior to initial certification.  The revised process adds an additional review of enrollment criteria performed by the Regional Home Health Intermediary (RHHI) or Medicare Administrative Contractor (MAC).   (more…)

The Department of Labor published a Notice of Proposed Rulemaking in late December aimed at giving the nation’s nearly two million home care workers minimum wage and overtime protections.  These workers have long been working  under an exemption from the Fair Labor Standards Act (FLSA) as “companion” employees.   (more…)

The National Labor Relations Board (NLRB) has again postponed the requirement for private employers to post notice of employee rights under the Nation Labor Relations Act (NLRA). See our previous analysis here, here, and here. Employers now have until April 30,2012 to post the required notice.  The board said it “has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.”  These legal challenges include the targeted legislation previously discussed. 

Should you have any questions, please contact:
Todd Selby at 317.977.1440 or tselby@hallrender.com;
Brian Jent at 317.977.1402 or bjent@hallrender.com; or
David Bufford at 502.568.9368 or dbufford@hallrender.com,
or your regular Hall Render attorney.

The Centers for Medicare & Medicaid Services (“CMS”) has recently instructed contractors to reopen certain claims that were previously denied for failure to meet the “face-to-face” requirements in certain circumstances and assuming all content requirements of the certification and the face-to-face documentation are otherwise met.  It came to CMS’ attention that certain claims were being denied by some CMS contractors for patients who use Home Health Agency (“HHA”) services following an acute or post-actue stay when:

• The HHA uses a single form (i.e., 485) for the plan of care and the certification with a single signature by the community physician who assumes oversight of the patient’s home healthcare.
• The physician who cared for the patient in the acute or post-acute setting is the certifying physician and has provided and signed attached documentation of the face-to-face encounter.

CMS does not mandate that a specific form be used for the certification or plan of care.  Many providers, however, have chosen to use the no-longer-required CMS-485 form to satisfy the plan of care and the certification.  Since April 2011, providers who use this form typically attach the face-to-face encounter documentation to the CMS-485, as an addendum.  This is because the CMS-485 contains only one physician signature line for both the plan of care and the certification of eligibility.

In the case of patients admitted to an HHA following an acute or post-acute stay, the Medicare Benefit Policy Manual (“BPM”) language allows for one physician to sign the certification and face-to-face documentation, while a different physician can sign the plan of care.  If the face-to-face encounter documentation and the CMS-485 form collectively satisfy all of the  certification and plan of care content requirements as defined in Chapter 7 Section 30 of the BPM, Medicare contractors have been directed to accept a CMS-485 form signed by the community physician who assumes oversight of the patient’s home healthcare with an addendum containing the face-to-face encounter documentation requirements signed by a physician who cared for the patient in an acute or post-acute setting, to satisfy the certification, face-to-face encounter, and plan of care requirements.  In this scenario, the certifying physician is the acute or post-acute physician, has initiated content on the CMS-485, and has completed and signed the face-to-face encounter documentation.  The physician who signs the CMS-485 assumes care for the patient’s home healthcare.

 Additionally, CMS acknowledged that some contractors are denying claims for failure of the acute or post-acute physician to identify the community physician who will assume care for the patient.  CMS has not mandated the acute or post-acute physician to follow a specific documentation protocol to hand-off a patient to the community physician. Therefore, these claims will be reviewed as well.

If you have questions or concerns regarding the foregoing or would like additional information, please contact your regular Hall Render attorney, or Todd Selby at tselby@hallrender.com or 317.977.1440, or Kendra Conover at kconover@hallrender.com or 317.977.1456

On November 30, 2011, Daniel R. Levinson, Inspector General, appeared before the Special Committee on Aging, and testified regarding the Office of Inspector General’s (OIG) findings pertaining to the use of atypical antipsychotic drugs by nursing home residents. 

The OIG hired psychiatrists who are experts in treating elderly patients to review a sample of 2007 medical records.  The review revealed four (4) significant results: 

(1)       Approximately 305,000 nursing home residents had Medicare claims for atypical antipsychotic drugs;

(2)       Half of these claims should not have been paid for by Medicare due to medically unacceptable usage;

(3)       One in five of the claims indicated the drugs had been dispensed in a way that violated the Government’s standards for their use (i.e., the resident’s dosage was too high or the resident had been using the medication for too long; and,

(4)       Sponsors in the Part D prescription drug plan (PDPs) lacked access to information necessary to ensure appropriate reimbursement of Part D drugs, including antipsychotics.

From these findings, the OIG concluded that Medicare is paying for drugs for which it should not be reimbursing the claimants, and that PDPs are unable to prevent these inappropriate payments.  Moreover, the OIG found that atypical antipsychotic drugs were being prescribed to high risk elderly patients with dementia for uses not approve by the FDA.  However, the OIG report indicated that a large majority of the claims was for this vulnerable population.

The complete report can be accessed at http://go.usa.gov/5jC .

If you have questions or concerns regarding the foregoing or would like additional information, please contact your regular Hall Render attorney, or Todd Selby at tselby@hallrender.com or 317.977.1440; Brian Jent at bjent@hallrender.com or 317.977.1402; or David Bufford at dbufford@hallrender.com or 502.568.9368.

The Centers for Medicare & Medicaid Services (“CMS”) announced yesterday the timeline for Round 2 competitive bidding for Durable Medical Equipment, Prosthetics, Orthotics and Suppliers (“DMEPOS”), with registration set to begin on December 5, 2011.

According to the release from CMS, the 60-day bid window for Round 2 and the National Mail-Order Competition for Diabetic Supplies opens on January 30, 2012 and closes on March 30.

Other important dates include:
      • December 22: “Authorized officials” are strongly encouraged to register no later than this.
      • January 12:  “Backup authorized” officials are strongly encouraged to register no later than this.
      • February 9: Registration closes.
      • February 28: Document review date for bidders to submit financial documents.

Also posted at the competitive bidding website yesterday were 21 new documents that provide critical information for Round 2.  The documents provide information on grandfathering, financial documentation, exemptions, enteral nutrition, capacity and expansion plans, contract supplier obligations, national mail-order competition for diabetic supplies, eligibility requirements, specialty suppliers, subcontracting and other details.

If you have questions or concerns regarding the foregoing or would like additional information, please contact your regular Hall Render attorney, or Todd Selby at tselby@hallrender.com or 317.977.1440, or Kendra Conover at kconover@hallrender.com or 317.977.1456.

In the next Centers for Medicare & Medicaid Services (CMS) Open Door Forum conference call, CMS will discuss the top regulatory issues skilled nursing providers face.  The monthly CMS Open Door Forum provides an opportunity for providers to listen to CMS discuss current topics, as well as participate in a Q&A session.  The next Open Door Forum is scheduled for December 1, next Thursday, at 2p.m. EST.  The Open Door Forum is free to participate in, and available at 1-800-837-1935, conference I.D. number 93952052.

Should you have any questions, please contact:
Todd Selby at 317.977.1440 or tselby@hallrender.com;
Brian Jent at 317.977.1402 or bjent@hallrender.com; or
David Bufford at 502.568.9368 or dbufford@hallrender.com,
or your regular Hall Render attorney.

The Elder Justice Act (EJA) was enacted as part of the Patient Protection and Affordable Care Act (PPACA) in March, 2010, and creates a duty for long-term care providers to swiftly report any reasonable suspicion of a crime committed against any individual who is a recipient of care from the facility, or face significant penalties.   (more…)

The National Fire Protection Association (NFPA) has recently released the 2012 Edition of the Life Safety Code (LSC).  Currently, the Centers for Medicare & Medicaid Services (CMS) enforces the 2000 Edition of the LSC.  The updated LSC includes many changes for health facilities, and addresses cultural changes for nursing homes.  For instance, to move a nursing home to more of a home-like setting, certain provisions will allow some seating in corridors, cooking facilities open to the corridor, and gas fireplaces.  These additions are intended to improve nursing home design, but are subject to many requirements and restrictions contained in the LSC. 

The new LSC provisions for health facilities will not be in effect until CMS and/or the Joint Commission (for facilities subject to accreditation) adopt the new LSC.  This process could take 18 months, or longer.

Should you have any questions, please contact:
Todd Selby at 317.977.1440 or tselby@hallrender.com;
Brian Jent at 317.977.1402 or bjent@hallrender.com; or
David Bufford at 502.568.9368 or dbufford@hallrender.com,
or your regular Hall Render attorney.