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.

Filial Responsibility Law – Another Tool for Nursing Homes to Get Paid – Son Liable for Mother’s $92,943 Nursing Home Bill Under Pennsylvania Law

Authored By: Sean J. Fahey

Recently, a Pennsylvania appeals court found a son liable for his mother’s $92,943 unpaid nursing home bill under Pennsylvania’s filial responsibility law. (more…)

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.

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Only One Week Left to Submit License to NSC in Round 2 Competitive Bidding

Authored By: Kendra Conover

Suppliers participating in Round 2 and/or the national mail-order competition of the Medicare Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (“DMEPOS”) Competitive Bidding Program must have all applicable state licenses on file with the National Supplier Clearinghouse (“NSC”). Bidding suppliers must ensure that copies of applicable state licenses are recieved by the NSC on or before Tuesday, May 1, 2012. Keep in mind, bids will be disqualified if the bidder does not meet all state licensure requirements to furnish the applicable product categories in every state in a competitive bidding area.

Should you have any questions, please contact:
Todd Selby at 317.977.1440 or tselby@hallrender.com;
Kendra Conover at 317.977.1456 or kconover@hallrender.com; or
or your regular Hall Render attorney.

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…)

OIG Publishes Report on Failure of Nursing Homes to Prepare, Respond to Disasters

Authored By: David W. Bufford

The Office of the Inspector General (OIG) just released a report on the failure of nursing facilities to develop and implement adequate emergency preparedness and response programs. The “Gaps Continue to Exist in Nursing Home Emergency Preparedness and Response During Disasters: 2007-2010″ report is the summation of an OIG study to assess emergency preparedness and response during recent disasters. (more…)

Wife’s Nursing Home Debt Cannot Be Discharged in Bankruptcy

Authored By: Sean J. Fahey

The United States Bankruptcy Court for the Eastern District of Kentucky held that the wife of a nursing home resident was contractually bound through a nursing home admissions agreement to apply for Medicaid benefits on behalf of her husband and who failed to do so, could not discharge the amount due to the nursing home through her bankruptcy. In re Plybon (U.S. Bankr. E.D. Ky., No. 11–10146, March 9, 2012).

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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.

Nursing Assistant Jailed for Posting Resident Photos to Facebook

Authored By: David W. Bufford

I wanted to highlight a post from one of our sister-blogs at Hall Render, the Litigation Analysis Blog, about a recent jail term for a nursing assistant who posted pictures of a resident to her Facebook account.

In that case, a judge sentenced a nursing assistant to eight days in jail, and two years probation for posting inappropriate pictures of residents on her Facebook page. While she did not admit to taking the photos, she did admit to posting them.

This is an issue that nursing facilities must take seriously. Such photographs are a violation of the resident’s rights, are exploitative, and can be demeaning. It is in a facility’s best interest to develop and implement policies related to employees use of personal devices in the care setting.

Reducing Avoidable Hospitalizations for Nursing Facility Residents

Authored By: Todd J. Selby

As a means of improving care to residents residing in Medicare/Medicaid nursing facilities, CMS announced on March 15, 2012 an initiative to help reduce avoidable hospitalizations. Organizations interested in participating in this initiative must submit an application to CMS by June 14, 2012.

The goal of the initiative is to improve care for residents of nursing facilities by helping avoid costly and avoidable hospitalizations by funding organizations who would partner with nursing facilities to provide enhanced on-site services to nursing facility residents. CMS will commit up to $128 million to support this initiative. The initiative will be a collaboration between the CMS Medicare-Medicaid Coordination Office and the Center for Medicare and Medicaid Innovation as created by the Affordable Care Act.

Organizations eligible to participate in the initiative include physician practices, care management organizations, and other public and not-for-profit entities. Eligible organizations will propose its own evidence-based intervention and improvement strategy. The organization will have staff on-site at nursing facilities to provide preventive services and will provide coordination and communication among providers. CMS is hopeful that the initiative will help reduce hospital re-admissions of nursing facility residents. It has been estimated that 45% of hospital admissions of nursing facility residents could have been avoided. It is estimated that 314,000 admissions could have been avoided which cost the Medicare program $2.6 billion in 2005.

More information on how to apply for this initiative can be found here or by searching for CFDA 93.621 at www.Grants.gov . The eligible organizaion must include letters of support from the State Medicaid Director and State Survey and Certification Director, and letters of intent from at least 15 nursing facility partners. Notices of Intent are due by April 30, 2012.

CMS Releases Waiver Guidance for Health Facilities use of 2012 LSC

Authored By: David W. Bufford

As expected earlier this month, the Centers for Medicare & Medicaid Services (CMS) have just released guidance for health facilities wishing to utilize specific features now available in the 2012 Life Safety Code (LSC). As previously discussed, the updated LSC provides new ways for nursing facilities to adopt a more home-like setting.

The recent changes in the 2012 LSC allow fixed furniture and wheeled equipment to be placed in egress hallways; alternative kitchen arrangements that can be open to corridors; (possibly) direct vent gas fireplaces in resident rooms and solid fuel (i.e. wood-burning) fireplaces in other areas, and combustible decorations on walls, doors, and ceilings.

All changes in the new LSC were addressed in response to the desire for culture change in nursing facilities to adopt a more home-like setting, rather than an institutional setting.

Effective immediately, CMS will consider requests for waivers from the currently enforced 2000 LSC for these items without requiring the facility to demonstrate compliance with the 2000 edition would generate an “unreasonable hardship”; the customary requirement for the approval of a LSC waiver.

Each waiver request will be considered individually to ensure the facility has followed all LSC requirements and the equipment has been installed properly. All waiver requests will be processed in the regular fashion with input from the State Survey Agency and final approval by the CMS Regional Office.

MedPAC Considers SNF Bundled Payments, Therapy Cap Changes

Authored By: David W. Bufford

The Medicare Payment Advisory Commission (MedPAC) is an independent Congressional advisory agency that makes formal recommendations to Congress in March and June of each year. MedPAC was created to advise Congress on issues affecting the administration of the Medicare Program. While Congress is not obligated to follow MedPAC’s recommendations, the recommendations are heavily considered.

This month, MedPAC released their semi-annual recommendation which included utilizing bundled payments to skilled nursing facilities (SNFs) and other post-acute providers to encourage more efficient coordination of care, and discourage high volumes of service. Many questions remain about how a budled payment would work, but it is something Congress is considering.

Another issue raised by the MedPAC recommendation was therapy caps. The therapy cap is a Medicare annual limit on the per-beneficiary out-patient therapy services benefit. MedPAC’s data shows therapy costs growing at a faster rate than therapy patients; meaning the therapy cost per patient is growing. MedPAC made recommendations to Congress on ways to stymie the increasing per-patient costs, including requiring stronger “physician attestations” on reimbursement claims, or overhauling the payment system.

Both of these issues still have many details to work out, but providers should be aware that Congress is considering such changes.

CMS Expected to Release Guidance on New LSC Adoption Soon

Authored By: David W. Bufford

The 2012 Life Safety Code (LSC) contains numerous provisions that address culture change in nursing facilities. These new provisions are somewhat of a liberalization of standards to permit a more home-like environment for residents, rather than an institutional setting. I am expecting the Centers for Medicare & Medicaid Services (CMS) to release a Survey & Certification Letter (S&C Letter) within the next few days that will permit facilities to adopt these new standards through a waiver process. (more…)

New York Times Article Discusses Move to Managed Home Care

Authored By: David W. Bufford

An article in the New York Times discussed a growing trend away from the utilization of nursing facilities in favor of managed care and home care. In light of reimbursement cuts from Medicare and Medicaid, the push to home health, managed care, and the Program of All-Inclusive Care for the Elderly (PACE) has received enthusiastic response from some patients and providers alike.

Revised Home Health Agency Survey and Certification Activities Related to a Change of Ownership

Authored By: Todd J. Selby

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 here.

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.

Office of Inspector General Cautions Physicians Who Reassign Their Medicare Benefits

Authored By: Brian D. Jent

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 here.

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.

Changes to Hospice Discharge Coding Coming this Summer

Authored By: David W. Bufford

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…)

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…)

Do Men Have a More Difficult Time Finding LTC?

Authored By: David W. Bufford

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.

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…)

Physician Assistants Now Permitted to Perform SNF-Level Certifications, Recertifications

Authored By: David W. Bufford

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…)

WSJ Cites Research Aimed at Restoring Antibiotic Sensitivity to Superbugs

Authored By: David W. Bufford

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).

Archive for the ‘Long-Term Care’ Category

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

Filial Responsibility Law – Another Tool for Nursing Homes to Get Paid – Son Liable for Mother’s $92,943 Nursing Home Bill Under Pennsylvania Law

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

Only One Week Left to Submit License to NSC in Round 2 Competitive Bidding

Home Health Agency Patient Surveys Now Available for Consumers

OIG Publishes Report on Failure of Nursing Homes to Prepare, Respond to Disasters

Wife’s Nursing Home Debt Cannot Be Discharged in Bankruptcy

CMS Reverses Course on Requiring Independent Pharmacy Review

Nursing Assistant Jailed for Posting Resident Photos to Facebook

Reducing Avoidable Hospitalizations for Nursing Facility Residents

CMS Releases Waiver Guidance for Health Facilities use of 2012 LSC

MedPAC Considers SNF Bundled Payments, Therapy Cap Changes

CMS Expected to Release Guidance on New LSC Adoption Soon

New York Times Article Discusses Move to Managed Home Care

Revised Home Health Agency Survey and Certification Activities Related to a Change of Ownership

Office of Inspector General Cautions Physicians Who Reassign Their Medicare Benefits

OIG Posts Video Guidance on Self-Disclosure

Changes to Hospice Discharge Coding Coming this Summer

CMS Postpones Two Anti-Fraud Initiatives

Do Men Have a More Difficult Time Finding LTC?

CMS Seeks Savings Through Changes in Medicaid Drug Payments

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

CMS Clarifies Guidance on PPACA Mandatory Medicaid Terminations

Physician Assistants Now Permitted to Perform SNF-Level Certifications, Recertifications

WSJ Cites Research Aimed at Restoring Antibiotic Sensitivity to Superbugs

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