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.

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…)

The Centers for Medicare & Medicaid Services (CMS) issued transmittal updating the Medicare Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) fee schedule by 2.4 percent on January 1, 2012.  The DMEPOS fee schedules are updated on an annual basis in accordance with statute and regulations.  This annual update in payment rates is tied to the Consumer Price Index for Urban Consumers (CPI-U) with an adjustment for productivity.   For 2012, the CPI-U adjustment is 3.6 percent increase, but the productivity adjustment for 2012 reduced that by 1.2 percent. Hence, the overall effect is a 2.4 percent increase. 

Notably, this update does not include items under competitive bidding contracts in Round 1 Rebid areas. The competitive bidding items are prohibited from receiving an update and will remain at single payment amounts for 2012. 

The transmittal also includes information such as: an update to labor payment rates, the payment amounts for stationary oxygen equipment, the payment amount for maintenance and servicing of oxygen equipment, HCPCS codes that have been added or deleted from the fee schedule, and updates to certain modifiers.

A copy of the transmittal is available at: http://www.cms.gov/transmittals/downloads/R2340CP.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, or Kendra Conover at kconover@hallrender.com or 317.977.1456.

Change Request (CR) 6421 was recently revised to remove chiropractors from the list of providers who may order or refer for Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS).  All other information in the CR remained the same.  As you will recall, in CR 6421, the Centers for Medicare & Medicaid Services (CMS) started the expansion of claim editing to meet the Social Security Act requirements for ordering and referring providers.    The claim editing is being expanded to verify that the ordering/referring provider on a claim is eligible to order/refer and is enrolled in Medicare and the Provider Enrollment, Chain and Ownership System (PECOS).

The editing expansion is being done in two phases.  We are still in Phase 1 of the implementation process, which began on October 5, 2009.   Under Phase 1, if the billed service requires an ordering/referring provider and the ordering/referring provider is not on the claim, the claim will not be paid. If the ordering/referring provider is on the claim, it will be verified that the ordering/referring provider is on the national PECOS file. If the ordering/referring provider is not on the national PECOS file, the claim will continue to process. 

Once Phase 2 is started, however, Centers for Medicare & Medicaid Services (CMS) will begin to reject claims if the ordering/referring provider does not have a PECOS record.  CMS has not yet announced when Phase 2 will begin, but has acknowledged that it will give providers sufficient notice before claims rejections begin.

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.

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…)

This past September, the Centers for Medicare & Medicaid Services (“CMS”) posted revised interpretive guidelines concerning the use of feeding tubes in nursing homes.  In late October, CMS retracted the Survey & Certification Letter detailing the revised changes so they could include instructions that pertain to the Quality Indicator Survey (“QIS”).  Further revised interpretive guidelines will be available soon.

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.

Oregon election officials took iPads into nursing homes in five Oregon counties for Tuesday’s election.  This effort was under a small pilot program designed to enable the state’s elderly and disabled population to vote.  The iPad was able to accommodate various disabilities, including enlarged font sizes and audible ballot reading for vision impaired voters, and attachments to control the screen for those with mobility impairments.

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 released instructions to prospective Accountable Care Organizations (“ACO”) for applying to the Shared Savings Program. The application process has both automated and paper options, but CMS strongly recommends using the automated application system. All organizations wanting to participate in the Shared Savings Program must submit a Notice of Intent to Apply no later than January 6, 2012 or February 17, 2012. Similar to other coordinated care programs being marketed by CMS, submitting a Notice of Intent does not bind organizations to participation in the Shared Savings Program. Applications to participate in the Shared Savings Program will be approved or denied on either March 16, 2012 or May 31, 2012, depending on the start date being targeted. Additional details, application instructions and the Notice of Intent are available here.

Please visit our Health Care Reform site  for current information and resources regarding health care reform issues and regulations.

Should you have any questions, please contact:
Brian Betner at 317.977.1466 or bbetner@hallrender.com;
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 released an updated Skilled Nursing Facility (“SNF”) Prospective Payment System (“PPS”) Factsheet.  The revised Factsheet includes background information and elements of the SNF PPS. 

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.

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…)

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.

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.