Archive for the ‘Litigation and Risk Management’ Category

New Vermont laws on abuse, neglect and exploitation of vulnerable adults residing in long term care facilities

Authored By: Sean J. Fahey

Vermont Governor Peter Shumlin recently signed Vermont House Bill 413 into law. The new law adds a new section to Vermont’s laws on abuse, neglect and exploitation of vulnerable adults residing in long term care facilities. The new section allows Vermont’s Attorney General the right to pursue a civil action against individuals, nursing homes and other long term care facilities, who, with reckless disregard or with knowledge violate Vermont’s laws abuse, neglect and exploitation of vulnerable adults. The new law provides that merely having a report filed with the Vermont Attorney General of abuse, neglect, exploitation or suspicion of those acts, is not be sufficient to demonstrate that a person or caregiver acted with reckless disregarded. Fines start at $5,000 if no bodily injury results and can rise to $50,000 if death occurs. The new law is effective July 1, 2012.

Vermont’s new law can be found here.
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;

David Bufford at 502.568.9368 or dbufford@hallrender.com; or

Sean Fahey at 317.977.1472 or sfahey@hallrender.com,

or your regular Hall Render attorney.

CMS Releases Final Rule Requiring Providers to Include NPI on Enrollment and Claim Filings

Authored By: David W. Bufford

The Centers for Medicare & Medicaid Services (CMS) just released a final rule requiring all providers of medical or other items or services and suppliers that qualify for a National Provider Identifier (NPI) to include their NPI on all applications to enroll in the Medicare and Medicaid programs and on all claims for payment submitted under the Medicare and Medicaid programs. The final rule will be published in the April 27th Federal Register, and the rule will become effective 60 days after publication, June 26.

(more…)

Home Health Agency Patient Surveys Now Available for Consumers

Authored By: David W. Bufford

Consumers can now compare results from home health agencies (HHA) patient surveys on the Quality Care Finder website. These results are designed to create incentives for HHAs to improve quality of care, as well as to give patients additional information as to the type of care they will receive from a particular agency. The Centers for Medicare & Medicaid Services (CMS) also states one of the goals of such public reporting is to enhance accountability by increasing transparency. (more…)

CMS Reverses Course on Requiring Independent Pharmacy Review

Authored By: David W. Bufford

In a surprise reversal, the Centers for Medicare & Medicaid Services (CMS) has dropped a controversial proposed regulation that would require nursing homes to hire independent pharmacists to oversee residents’ medication regimens.

The proposed rule had been developed in response to the belief that relationships between long-term care providers and pharmacy suppliers could conflict with the best interests of nursing home residents.

In response to overwhelming criticism, CMS has dropped the proposed regulation for now, which they acknowledged would be “highly disruptive to the industry.” Regulators “decided to further study the issue for future policy considerations,” Jonathan Blum, deputy director of the agency, said in a conference call with reporters.

CMS remains concerned about inappropriate medications for nursing home residents, and in a separate statement, encouraged nursing homes to voluntarily adjust how medications are prescribed or face stiffer regulations down the line.

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.

OIG Posts Video Guidance on Self-Disclosure

Authored By: David W. Bufford

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.

CMS Postpones Two Anti-Fraud Initiatives

Authored By: David W. Bufford

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…)

CMS Seeks Savings Through Changes in Medicaid Drug Payments

Authored By: David W. Bufford

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.

Administration Recommends Only Two Sections of PPACA be Overturned if SCOTUS Rules Unconstitutional

Authored By: David W. Bufford

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…)

CMS Clarifies Guidance on PPACA Mandatory Medicaid Terminations

Authored By: David W. Bufford

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…)

OIG Releases Provider Compliance Videos

Authored By: David W. Bufford

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…)

CMS Revises Initial Certification Process for HHAs

Authored By: David W. Bufford

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…)

Proposed Wage Regulations for Home Care Workers

Authored By: David W. Bufford

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…)

Overprescriped Antipsychotics in Nursing Homes

Authored By: Todd J. Selby

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.

CMS to Host Open Door Forum, Discuss Top SNF Regulatory Issues

Authored By: David W. Bufford

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.

NFPA Releases 2012 LSC

Authored By: David W. Bufford

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.

CMS Revisits Smoking Safety in Long Term Care Facilities

Authored By: David W. Bufford

The Centers for Medicare & Medicaid Services (“CMS”) just released a Survey & Certification Letter (S&C: 12-04-NH) to address a recent report of a nursing facility resident death due to a smoking accident. A resident who was deemed appropriate to smoke unsupervised, but failing to wear a smoking apron, died as the result of injuries she sustained while smoking unsupervised outside a facility. CMS published the Letter to review the current regulations and Guidance to Surveyors at 42 CFR 483.25(h), and tag F323, Accidents and Supervision.

CMS restated that survey agencies must do all they can to remind and encourage nursing homes with residents who smoke to take reasonable precautions to ensure the safety of residents to the maximum extent possible. The above regulation Guidance describes appropriate precautions such as smoking only in designated areas, supervising residents whose assessment and plans of care indicate a need for supervised smoking, and limiting the accessibility of matches and lighters by residents who need supervision when smoking. (more…)

Some Nursing Facilities Face OSHA Inspections Due to Excessive Employee Injuries

Authored By: David W. Bufford

The Occupational Safety and Health Administration (“OSHA”) has included nursing facilities in their Site-Specific Targeting 2011 (“SST-11″) Plan for facilities with high rates of injuries and illnesses experienced by workers. The SST-11 selects individual facilities for inspection identified through the 2010 Data Initiative survey. OSHA will target facilities with specific Days Away, Restricted, or Transferred (“DART”) rates and Days Away from Work Injury and Illness (“DAFWII”) case rates. Those facilities with a DART rate at or above 16.0 or a DAFWII rate at or above 13.0 will be selected for the primary inspection round. This is approximately 300 facilities. After the primary inspection round, OSHA may move on to facilities with lower DART and/or DAFWII rates. Multiple rounds of inspections are required due to a large number of facilities that reported high rates in the 2010 Data Initiative survey. (more…)

Nursing Home’s Failure to Notify Leaves Beneficiary Not Liable for Custodial Care Services

Authored By: David W. Bufford

A Medicare beneficiary is not liable for custodial care services rendered by a Mississippi nursing home because the facility failed to give adequate notice the services were not covered by Medicare, a federal appeals court panel ruled on October 25. The case (Mississippi Care Center of Morton LLC, Sebelius, 5th Cir., No. 10-60595, Oct. 25, 2011) concerned the application of 42 C.F.R. 411.404, which states a beneficiary is considered to have known custodial care or services that are not reasonable and necessary are not covered services under Medicare, provided the beneficiary received adequate notice the services are not covered under Medicare. (more…)

Medicare Provider Revalidation Requests

Authored By: Brian D. Jent

The Centers for Medicare & Medicaid Services has posted a list of providers who have been sent a request to revalidate their Medicare enrollment information. You can access and review the list, then select “Revalidation Phase 1 Listing.” The list will be updated monthly and providers are encouraged to review the list. If you are listed but have not received the request, contact your Medicare Administrative Contractor. Please note that revalidation applications are due sixty (60) days from the date of the request.

CMS Extends Timeline for Provider Revalidation

Authored By: David W. Bufford

The Centers for Medicare & Medicaid Services (“CMS”) has reevaluated the revalidation requirements in the Affordable Care Act (“ACA”), and believe the ACA allows for the extension of the revalidation period for an additional two years. This will extend the deadline for revalidation through March of 2015. Providers are reminded that if they have already received their notice to revalidate, they must complete the revalidation within the original time-frame. This only will extend the time-frame CMS has to issue the revalidation notices. This also does not affect the screening category certain providers or suppliers are assigned for revalidation.

New Federally Required Independent IDR Process for Nursing Homes

Authored By: Todd J. Selby

Pursuant to Section 6111 of the Affordable Care Act enacted on March 23, 2010, and the final rule published on March 18, 2011 in the Federal Register, a nursing facility must be offered the opportunity to request an Independent Informal Dispute Resolution (IIDR) if the Centers for Medicare & Medicaid Services (CMS) imposes a civil monetary penalty (CMP) against the facility and the CMP amounts are subject to being collected and placed in an escrow account. Initially, the CMPs collected will be limited to the most serious deficiencies.

Under this new rule, State Survey Agencies (SAs) must have in place no later than January 1, 2012, a functioning IIDR process containing key elements: More specifically, the IIDR process must contain provisions: (1) that an offer notification and relative information pertaining to the process (in the Notice of Imposition of a CMP letter) will be sent to the facility within 30 days of the imposition of a CMP that will be collected and escrowed; (2) whereby the provider must request the IIDR within 10 calendar days after receipt of the notice letter, and the SA must complete the process within 60 calendar days after receipt of the facility’s request; (3) for the IIDR process to generate a written record prior to the collection of the CMP; and (4) for notification to be provided to the resident or the resident’s representative(s) and the State’s long term care ombudsman by the SA to allow for any comments prior to the completion of the IIDR process.

The IIDR process must be approved by CMS and conducted by the SA or a CMS-approved entity that does not have a conflict of interest. Any expenses incurred by the SAs are eligible for federal funding. However, SAs must submit an estimated budget by November 30, 2011, in addition to its IIDR process. States may not charge facilities for conducting an IIDR except in instances where a facility does not qualify for an IIDR but one is provided by the State at its own discretion. Under this scenario, the State may elect to charge the facility a user fee for its own processes.

For more-detailed information and to review the IIDR sample worksheet, please visit: http://edocket.access.gpo.gov/2011/pdf/2011-6144.pdf.

Hospice Owner Indicted for $14.3 Million in False Claims

Authored By: Todd J. Selby

On October 12, 2011, the U.S. Department of Justice unsealed an indictment charging Matthew Kolodesh a/k/a Matvei Kolodech, with conspiracy to defraud Medicare of more than $14 million. According to the indictment, Kolodesh’s business, Home Care Hospice, Inc. (HCH), located in Philadelphia, PA, submitted Medicare claims for approximately $14.3 million dollars for patients who were ineligible for hospice benefits or who did not receive any services.

Some of the ineligible patients were not terminally ill and were on service in excess of six months. At the direction of Kolodesh, HCH staff was instructed to alter patients’ charts to document a patient’s medical condition as worse than it actually was. HCH staff was also instructed to bill claims at a higher, costlier rate of service than what was provided to the patient.

In February 2007, HCH was notified that is was the subject of a claims review audit. Again, A.P. and Kolodesh directed staff to falsify documentation that was to be submitted for the audit. In September 2007, HCH was notified it has exceeded the cap for Medicare reimbursement and would have to repay $2,625,047 to the Medicare program. At that time, A.P. and Kolodesh initiated a mass discharge program of the ineligible and inappropriately maintained hospice patients.

If convicted, Kolodesh faces a statutory maximum sentence of 370 year in prison and will owe Medicare approximately $14.3 million. The case was investigated by the Federal Bureau of Investigation and the Department of Health and Human Services Office of Inspector General. It is being prosecuted by the U.S. Attorney’s Office, Eastern District, Pennsylvania.

While this is a very egregious example of an attempt to defraud the Medicare program, having ineligible hospice patients on service or unusually long lengths of stay are precisely the types of activities the Medicare Administrative Contractor will review when conducting a claim audit. The lesson learned is that if you defraud the Medicare program you will get caught.

If you have 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.

Legislation Introduced to Dismantle “Specialty Healthcare” NLRB Decision, Further Limit NLRB Actions

Authored By: David W. Bufford

Representative John Kline of Minnesota introduced the Workforce Democracy and Fairness Act last week in response to recent NLRB actions affecting employers. One aspect of this Bill is the reversal of the NLRB’s Specialty Healthcare decision which altered the established standard for determining collective bargaining units in non-acute care health facilities. (more…)

OIG Publishes 2012 Work Plan

Authored By: Todd J. Selby

On October 5, 2011, the Office of Inspector General (OIG) published its proposed Work Plan for Fiscal Year 2012. As in the past, the Work Plan continues to identify compliance risk areas that subject Medicare and Medicaid providers to audit and enforcement initiatives. The 2012 Work Plan contains several new areas of focus by the OIG that potentially will impact current operating practices of nursing homes and hospices and the relationships between these types of providers. More specifically, areas of increased scrutiny are (i) nursing home compliance plans; (ii) billing patterns of Part B provider services during non-Part A nursing home stays; and (iii) hospice marketing practices and financial relationships with nursing facilities.

The OIG will review Medicare- and Medicaid-certified nursing homes to ensure the implementation of compliance plans as a part of their day-to-day operations. The compliance plans will be reviewed to ensure they contain the required elements of the OIG’s compliance program guidance. Under the Affordable Care Act, nursing facilities must operate a compliance and ethics program to prevent and detect criminal, civil and administrative violations and to promote quality of care. The Centers for Medicare & Medicaid Services (CMS) is charged with overseeing the program and incorporating the requirements into the Medicare Requirements of Participation. CMS also must issue regulations by 2012, and nursing facility providers must have compliance programs in place by 2013.

Billing patterns of nursing facilities and Medicare Part B providers will be scrutinized to confirm that services provided by Part B providers to nursing facility residents during a non-Part A stay are billed directly by suppliers and providers. More particularly, the OIG will analyze podiatry, ambulance, laboratory and imaging services for conformity with this requirement.

Lastly, the OIG will closely examine and monitor hospices’ marketing materials and practices and their financial relationships with nursing facilities. Recently, the OIG reported that a high percentage of hospice claims for services to Medicare Part A-eligible nursing facility beneficiaries did not meet the Medicare coverage requirements. Observations by MedPAC, an independent congressional agency that advises Congress on issues affecting Medicare, suggest that hospices and nursing facilities may be involved in inappropriate enrollment and compensation relationships. Consequently, practices of hospices with a high percentage of their patients in nursing facilities will undergo increased inspection as well as those hospices that aggressively market their services to nursing facility residents.

A complete copy of the 2012 Work Plan can be accessed at http://www.oig.hhs.gov/reports-and-publications/archives/workplan/2012/Work-Plan-2012.pdf

NLRB Postpones Requirement to Post Employee Rights Notice

Authored By: David W. Bufford

The NLRB announced last week that it has postponed the implementation date for its new notice-posting rule (previously discussed here and here) by more than two months in order to allow for “enhanced education and outreach to employers”, particularly those who operate small and medium sized businesses. The posting requirement for most private employers was originally set to become effective on November 14, 2011. The new effective date is January 31, 2012. (more…)

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