Category Archives: Nursing Homes
The Chevron Deference Rule: Pay Attention, Health Care Providers! CMS May Lose Control!
It has been nearly 40 years since the Supreme Court indicated in Chevron v. Natural Resources Defense Council that courts should defer to an agency’s reasonable interpretation of an ambiguous statute. Earlier this year, the Supreme Court heard arguments abolishing the Chevron deference rule. It that good or bad? Well, let’s hash it out. Regardless your opinion, the Supreme Court will decide the Chevron deference rule’s legality this summer. And, listening to the oral arguments earlier this year, it seems that a majority of the justices seemed ready to jettison the doctrine or at the very least significantly limit it.
The Chevron deference rule is a critical aspect of administrative law that often remains in the shadows of legal discourse but holds immense implications for the functioning of our government: the Chevron deference rule. This rule, born out of a Supreme Court case in 1984, has been a cornerstone of administrative law, dictating how courts should defer to federal agencies’ interpretations of ambiguous statutes. But as with any legal doctrine, it invites debate, scrutiny, and calls for reform.
In simple terms, the Chevron deference rule mandates that if a statute is ambiguous, courts should defer to the reasonable interpretation of that statute made by the agency tasked with implementing it, unless that interpretation is unreasonable. In essence, it grants federal agencies significant leeway in interpreting laws passed by Congress. This deference has profound effects on the balance of power between the branches of government. For example: CMS is an agency that is allowed deference in its rules that are not laws. See the importance? Without the Chevron deference rule, ALJs would not be bound by CMS’ rules that are not laws. For example, CMS is of the mindsight that extrapolation is legal, allowed, and upheld. The ALJs are bound to agree. No Chevron deference rule? The ALJs can make up their own minds.
The rationale behind Chevron deference is to recognize the expertise of administrative agencies in their respective fields. These agencies possess specialized knowledge and experience that enable them to navigate complex regulatory landscapes. By allowing them deference in interpreting ambiguous statutes, the rule seeks to promote consistency, efficiency, and expertise in policymaking and implementation.
However, as with any legal doctrine, the Chevron deference rule is not without its critics. Some argue that it unduly concentrates power in the hands of unelected bureaucrats, diminishing the role of the judiciary in interpreting the law. Moreover, it raises concerns about accountability and democratic legitimacy, as it can shield agency actions from robust judicial review.
Furthermore, the Chevron deference rule has become a subject of political contention, particularly in recent years. Critics argue that it enables regulatory overreach by agencies, allowing them to enact policies that may exceed the scope of their statutory authority. This concern has led to calls for judicial restraint and a reevaluation of the deference granted to administrative agencies.
So, should the Chevron deference rule stay in place? This question elicits a spectrum of opinions and requires careful consideration. On one hand, the rule promotes efficiency and expertise in governance, recognizing the specialized knowledge of administrative agencies. On the other hand, it raises concerns about accountability, democratic legitimacy, and the balance of power between the branches of government.
In navigating this complex terrain, we must strike a balance that upholds the principles of good governance, accountability, and the rule of law. Perhaps the solution lies not in abolishing the Chevron deference rule altogether but in refining it to address its shortcomings. This could involve clarifying the conditions under which deference is appropriate, ensuring robust judicial oversight, and promoting transparency and accountability in administrative decision-making.
The Chevron deference rule stands as a pivotal element of administrative law, shaping the relationship between the branches of government and influencing the course of public policy. Its effects are profound and far-reaching, touching upon fundamental principles of governance and democracy. As we navigate the complexities of modern governance, let us engage in thoughtful dialogue and debate to ensure that our legal framework reflects the values of accountability, transparency, and the rule of law.
In Medicare Provider Audits, the Best Defense Is a Good Offense
Today I want to discuss upcoming 2024 audits. It has been almost four years since the world shut down due to COVID. Life has been divided into “before COVID” and “after COVID.” Before COVID, the Centers for Medicare and Medicaid Services (CMS) aggressively pursued audits against durable medical equipment suppliers, home health, hospice, behavioral health, long term care facilities and hospitals. When COVID hit, most audits were paused. But not for long. As you know, CMS resumed its audit activities as early as August 2020. However, in the world of COVID, there were exceptions to every rule, many of which were state specific. Even exceptions had exceptions. It is imperative that you maintain for your type of health care service every policy, exceptions, bulletins, advisory opinions from 2020 through the present. If you have not assigned this task to someone in your facility, do it today.
We have seen an uptick in increased audit activity with pneumonic compression devices (PCDs). PCDs were not listed in the top error rates for the 2021 Improper Payment Report, but in the 2023 report, PCD’s have the second highest error rate behind oral cancer drugs at 78.9%. With an error rate that high, PCD’s will be a focal point of audits. Other items identified in the 2023 improper payment report for having high error rates include urological supplies, parenteral and enteral nutrition, manual wheelchairs, and various orthoses. These items will all see increased audit activity in the upcoming year. Basically, as long as the error rates remain high, audit activity will continue.
Surgical dressings have also been consistently audited. Surgical dressings are relatively a complex product to bill. DME suppliers of surgical dressings and physicians who order surgical dressings are seeing an uptick in denials. The 2021 Medicare fee for service supplemental improper payment report covering claims from July 1st, 2019, through June 30th 2020, listed surgical dressings as having the highest improper payment rate at 69.7%, followed closely by therapeutic shoes with an error rate of 67.9%. Since then, there has not been much improvement. The 2023 Improper Payment Report covering claims submitted between July 1st, 2021, and June 30th, 2022, shows the improper payment rate for surgical dressings is still at 62.1%. Therapeutic shoes did show some improvement with an improper payment rate of 51.4%, but this is still significant. For the 2023 reporting period, insufficient documentation accounted for 82.4% of improper payments for surgical dressings. Other types of errors for surgical dressings were no documentation at 1.9%, medical necessity at 1.7%, incorrect coding at 1.9% and other at 12.2%.
Targeted Probe and Educate (TPE) were some of the first audits resumed by CMS. Recovery Audit Contractor (RAC) audits are also increasing. I consider RACs to be the bounty-hunters of Medicare and Medicaid. Audits of skilled nursing providers are going to see a hike this year, with a growing number of federal and state recovery audits adding to specialized compliance reviews announced last year. In 2023, regulators instituted audits of facilities using potentially inappropriate diagnosis of schizophrenia as well as a new, 5-claim audit of every US nursing home that was specifically meant to root out improper payments. CMS came under additional pressure this past summer. That’s when the Government Accountability Office said the agency needs to do a better job of recouping overpayments. What do we think CMS will do in light of the GAO instructing the agency to do a better job recouping? The answer is: audit more. But, as they say in football, the defense is a good offense. The same is true in Medicare and Medicaid provider appeals. Be prepared.
2024 SNF Audits Are Robust! What You Need to Know:
Skilled Nursing Facilities (“SNF”) have special audits or should I say, more robust audits. The overall gist of these federal audits of SNFs for Medicare compliance, staffing seems to be the most troubling.
We all know that in March of 2020, both The Joint Commission (TJC) and the Centers for Medicare & Medicaid Services (CMS) pressed pause on audits, accreditation surveys, and health inspections due to COVID-19. Shortly thereafter, CMS inspections and rating updates were back in full swing as of January 2021, TJC audits and surveys are proceeding more robustly. COVID funds are especially scrutinized. Passing audits and inspections are crucial to maintaining your nursing home’s accreditation and Medicare-certified status so you can stay in business. Here’s what your HR department should know about SNF audits and ratings, and how you can help prepare for them.
Skilled Nursing Facility Audits and Quality Rating System
Together, the CMS and The Joint Commission (“TJC”) assess skilled nursing facilities’ patient care, quality of service, and provider qualifications.
The TJC survey and auditing process is designed to evaluate accredited nursing care centers once every 3 years through unannounced visits and documentation reviews that include:
- Assessments of patient safety
- Observations of services and provider or caregiver performance
- On-site or virtual staff interviews
- Physical survey of the facility
- Review of the facility’s ability to maintain updated practitioner documentation
CMS tests nursing home quality levels using a five-star quality rating system, which is updated regularly on its facility comparison site, Nursing Home Compare. The site organizes nursing homes by rating and helps consumers and their families and caregivers choose the right facility. This rating system gives each nursing home a score of between 1 and 5 based on four major factors:
- Health inspections. This portion of the rating is a combination of the results from a facility’s three most recent health inspections and three most recent investigations due to complaints. Trained inspectors pay an on-site visit to test the nursing home’s ability to meet minimum quality requirements through a specific process.
- Staffing. This rating takes into account the average hours of RN care per resident day as well as total staffing hours (RN, LPN, and CNA) based on resident needs.
- Quality measures. This rating is based on 15 different physical and clinical measures to test how well nursing homes are meeting resident needs.
- Retention. This rating measures the amount of turnover at a facility and rewards employers who retain employees for longer periods of time.
Emphasize time and attendance
In 2019, the CMS tightened their quality rating restrictions, reducing the number of days facilities could go without having an on-site nurse. This and other changes resulted in over one-third (37%) of skilled nursing facilities losing one or more stars. It’s impossible to predict what other changes may come in the future, but needless to say, time and attendance will continue to be crucial.
Your facility may not be able to recruit enough new nurses to fill your roster completely, which is why prioritizing timeliness is an important part of maintaining your rating. Make it a point to reward staff who clock in and out on time and stay on top of missed days and late arrivals.
Focus on Retention
In July 2022, CMS announced that staffing and turnover data would be used in assessing star ratings for facilities. As CMS administrator Chiquita Brooks-LaSure stated, “research and experience tell us that staffing levels and staff turnover can substantially affect quality of care and health outcomes for people living in nursing homes.” My BFF DeeDee Murphy is GC for Principal Long-Term Care, which owns hundreds of SNFs. Staff turnover is a huge problem, especially since COVID, according to her.
Retention has long been a practical concern for long-term care facilities, but now the issue is increasingly under the spotlight. Focus on your retention by offering creative and enticing benefits, such as flexible scheduling and flexible benefits. Also, focus on creating career opportunities for your employees, so they stay within the facility instead of seeking career growth elsewhere.
Types of Nursing Home Audits
As an administrator, you’ll likely oversee many different types of audits. Here are some of the most common ones.
- Resident Assessment Instrument (RAI)
The Resident Assessment Instrument is a comprehensive assessment tool used to evaluate the needs of nursing home residents. RAI audits focus on the accuracy and completeness of resident assessments, including the collection and documentation of information related to the resident’s physical, mental, and psychosocial health. These audits aim to ensure that residents’ care plans are individualized and based on accurate and up-to-date assessments.
2. Falls Risk Assessment
Falls are a significant concern in nursing homes, as they can lead to serious injuries and complications. Falls risk assessment audits evaluate the nursing home’s procedures for identifying residents at risk of falling and implementing appropriate interventions to prevent falls. These audits assess whether fall risk assessments are conducted regularly, documented properly, and used to develop personalized care plans to minimize the risk of falls.
3. Medication Management Audit
Medication management audits focus on the safe and effective administration of medications to nursing home residents. These audits assess whether medication orders are properly documented, medications are stored securely, and administration procedures follow established protocols. They also evaluate medication reconciliation processes, medication error reporting, and staff training related to medication management.
4. Infection Control Audit
Infection control audits are conducted to assess the nursing home’s adherence to infection prevention and control practices. These audits evaluate hand hygiene practices, proper use of personal protective equipment (PPE), cleaning and disinfection procedures, and compliance with isolation precautions. The goal is to identify areas where infection control pracctices can be improved to minimize the risk of healthcare-associated infections among residents and staff.
5. Staffing Audit
Staffing audits focus on evaluating the nursing home’s staffing levels and skill mix to ensure adequate staffing for resident care needs. These audits assess compliance with staffing requirements set by regulatory agencies, review staff qualifications and training, and evaluate the nursing home’s processes for monitoring and maintaining appropriate staffing levels. The goal is to ensure that there are enough qualified staff members available to provide safe and quality care to residents.
As you help prepare your facility for potential audits and inspections, it’s also a good idea to take a closer look at your system for storing and submitting documentation. Your personnel records may be up-to-date, but are they as accessible as they could be?
Many HR departments still handle paperwork manually, with paper folders and filing cabinets rather than a centralized system. And while this may still work for some, it can get tricky if you’re juggling multiple review requests or multiple facilities.
Digitizing files in a central location can help you avoid unnecessary compliance violations and simplify employee management. With access to all files at once, your facility can stay organized, prepare ahead of time, and have all the documentation you need at your fingertips, just in case.
Tips for Audit and Inspection Preparation
You want your facility to look good. My best friend is general counsel you can help your facility prepare for whatever comes their way and increase their rating at the same time.
Here are a few ways your team can improve compliance and maintain your SNF’s quality rating:
- Educate staff about documentation
All nursing home facility staff should be on the same page when it comes to documenting and reporting care. Consider holding a staff meeting to go over the main points of documentation with your attending physician or RN in charge. During this meeting, emphasize the importance of documenting elements like:
- History of reticent care and behavior towards care
- The skilled services provided
- Need for services based on resident’s condition and situation
- Resident’s response to services
- Future care plans
All documentation should be legible (although legibility is NOT a law, just a suggestion or best practices) and report care clearly and accurately. And make sure everyone knows to check state regulations for reporting and documenting COVID-19 procedures and care.
Improve Employee Satisfaction
Satisfied employees mean a better work environment and fewer complaints from residents, which can negatively impact your quality rating. Positive work cultures have been linked to better work attendance and performance, workforce retention, and mental health. It pays to ensure that your RNs, LPNs, CNAs, and other staff members are happy, healthy, and able to attend fully to their work.
Work with your staff to ensure that they’re getting what they need, whether that means flexible scheduling or healthy food on late-night shifts. Check in about their mental health and ask what resources you can provide to help them combat burnout.
NC Medicaid Expansion: More Consumers, Not More Providers!
Republican-run Congress passed Medicaid expansion today, March 23, 2023.
Today North Carolina took a commendable step forward in healthcare by expanding Medicaid to cover more low-income individuals. Now there are 10 States that have not expanded Medicaid. This decision will provide much-needed healthcare coverage to over 600,000 people in the state who previously did not have access to affordable healthcare. North Carolina has 2.9 million enrollees in traditional Medicaid coverage. Advocates have estimated that expansion could help 600,000 adults. In theory. On paper.
As a legal professional, I commend the North Carolina lawmakers for making this decision. The expansion of Medicaid will go a long way in improving the health and wellbeing of North Carolinians. It is well known that access to quality healthcare is critical for people to lead healthy and productive lives. By expanding Medicaid, the state is taking a proactive step towards ensuring that its citizens have access to the healthcare they need.
However, it is important to note that despite this expansion, many healthcare providers still do not accept Medicaid due to low reimbursement rates and regulatory burdens. This is a major issue that must be addressed if the benefits of the expansion are to be fully realized.
According to a report by the Kaiser Family Foundation, Medicaid patients often face significant challenges in accessing healthcare services due to a shortage of healthcare providers who accept Medicaid. In North Carolina, as of 2021, only 52% of primary care physicians accept Medicaid patients, while only 45% of specialists accept Medicaid patients. 600,000 North Carolinians will get a Medicaid card. A card does not guarantee health care services. See blog.
One area that has been severely impacted by the shortage of Medicaid providers is dental care. According to the American Dental Association, only 38% of dentists in the United States accept Medicaid patients. This has led to many low-income individuals going without essential dental care, which can lead to more serious health issues down the line. Remember, Deamante Driver? See blog.
Another area that has been impacted by the shortage of Medicaid providers is nursing homes. In many cases, nursing homes that accept Medicaid patients struggle to find healthcare providers willing to provide care to their residents. This can lead to residents going without essential medical care, which can have severe consequences.
Specialists are another area where the shortage of Medicaid providers is particularly acute. According to the Kaiser Family Foundation, only 45% of specialists accept Medicaid patients. This can be especially challenging for patients with complex medical needs, who often require specialized care.
The shortage of Medicaid providers is a complex issue that requires a multifaceted solution. One approach is to increase reimbursement rates for healthcare providers who accept Medicaid patients. This would incentivize more healthcare providers to accept Medicaid patients, thereby increasing access to healthcare services for low-income individuals.
Another approach is to reduce regulatory burdens for healthcare providers. This would make it easier for healthcare providers to participate in Medicaid, thereby increasing access to healthcare services for low-income individuals.
These statistics highlight the urgent need to address the issue of low reimbursement rates and regulatory burdens faced by healthcare providers. If more providers are incentivized to accept Medicaid patients, more people will have access to the care they need, and the benefits of the expansion will be fully realized.
In conclusion, North Carolina’s decision to expand Medicaid is a significant step forward in healthcare, and it should be applauded. However, it is crucial that policy change to incentivize providers to accept Medicaid. From dental care to nursing homes and specialists, low-income individuals who rely on Medicaid face significant challenges in accessing essential healthcare services.
Medicare Auditors Fail to Follow the Jimmo Settlement
Auditors are not lawyers. Some auditors do not even possess the clinical background of the services they are auditing. In this blog, I am concentrating on the lack of legal licenses. Because the standards to which auditors need to hold providers to are not only found in the Medicare Provider Manuals, regulations, NCDs and LCDs. Oh, no… To add even more spice to the spice cabinet, common law court cases also create and amend Medicare and Medicaid policies.
For example, the Jimmo v. Selebius settlement agreement dictates the standards for skilled nursing and skilled therapy in skilled nursing facilities, home health, and outpatient therapy settings and importantly holds that coverage does not turn on the presence or absence of a beneficiary’s potential for improvement.
The Jimmo settlement dictates that:
“Specifically, in accordance with the settlement agreement, the manual revisions clarify that coverage of skilled nursing and skilled therapy services in the skilled nursing facility (SNF), home health (HH), and outpatient therapy (OPT) settings “…does not turn on the presence or absence of a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care.” Skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.”
This Jimmo standard – not requiring a potential for improvement – is essential for diseases that are lifelong and debilitating, like Multiple Sclerosis (“MS”). For beneficiaries suffering from MS, skilled therapy is essential to prevent regression.
I have reviewed numerous audits by UPICs, in particular, which have failed to follow the Jimmo settlement standard and denied 100% of my provider-client’s claims. 100%. All for failure to demonstrate potential for improvement for MS patients. It’s ludicrous until you stop and remember that auditors are not lawyers. This Jimmo standard is found in a settlement agreement from January 2013. While we will win on appeal, it costs providers money valuable money when auditors apply the wrong standards.
The amounts in controversy are generally high due to extrapolations, which is when the UPIC samples a low number of claims, determines an error rate and extrapolates that error rate across the universe. When the error rate is falsely 100%, the extrapolation tends to be high.
While an expectation of improvement could be a reasonable criterion to consider when evaluating, for example, a claim in which the goal of treatment is restoring a prior capability, Medicare policy has long recognized that there may also be specific instances where no improvement is expected but skilled care is, nevertheless, required in order to prevent or slow deterioration and maintain a beneficiary at the maximum practicable level of function. For example, in the regulations at 42 CFR 409.32(c), the level of care criteria for SNF coverage specify that the “. . . restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.” The auditors should understand this and be trained on the proper standards. The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition.
When you are audited by an auditor whether it be a RAC, MAC or UPIC, make sure the auditors are applying the correct standards. Remember, the auditors aren’t attorneys or doctors.
Regulatory Fright: Audits Citing Harm, Abuse, Neglect, or Exploitation
There is little more daunting than the Division of Health Services Regulation (“DHSR”) – or whatever acronym is used in your State – slapping penalties on long term care facilities, nursing homes, and other residential facilities, such as residential homes housing handicapped recipients, mentally ill recipients, or substance abuse consumers. Many of these penalties are immediate and can easily put a facility out of business and a resident without a home. DHSR falls under the umbrella of DHHS, the “single State entity” that manages Medicaid in each respective State. DHSR may be a different acronym in your State, but the essence will be the same.
The primary difference between adult care homes and nursing homes is as follows:
“Adult Care Homes” provide care and assistance to people with problems carrying out activities of daily living and supervision to people with cognitive impairments whose decisions, if made independently, may jeopardize the safety or well-being of themselves or others and therefore require supervision. Medication in an adult care home may be administered by designated, trained staff. Smaller adult care homes that provide care to two to six unrelated residents are commonly called family care homes.
“Nursing Homes” are for people who need chronic or rehabilitative care, who, on admission are not acutely ill and who do not usually require special facilities such as an operating room, X-ray facilities, laboratory facilities, and obstetrical facilities. A “nursing home” provides care for people who have remedial ailments or other ailments, for which medical and nursing care are indicated; who, however, are not sick enough to require general hospital care. Nursing care is their primary need, but they will require continuing medical supervision.
Regarding Violations & Penalties in Adult Care Homes
Pursuant to G.S. 131-D-34 (a), the Department shall impose an administrative penalty in accordance with provisions of the Article on any facility which is found to be in violation of requirements of G.S. 131D-21 or applicable State and federal laws and regulations. Citations for violations shall be classified and penalties assessed according to the nature of the violation.
Type A1 and A2 Violations & Penalties: A monetary penalty fine may be imposed when a “Type A1” or “Type A2” violation has occurred.
- “Type A1 Violation” means a violation by a facility of applicable laws and regulations governing a facility which results in death or serious physical harm, abuse, neglect, or exploitation of a resident.
- “Type A2 Violation” means a violation by a facility of applicable laws and regulations governing the licensure of a facility which results in substantial risk that death or serious physical harm, abuse, neglect, or exploitation will occur.
- For family care homes (licensed for two to six beds), the penalty amount may range from $500.00 to $10,000 for each Type A violation.
- For adult care homes (licensed for seven beds or more), the penalty amount may range from $2000.00 to $20,000 for each Type A violation.
Examples of a Type A1 violation may include the following:
- The facility failed to provide supervision to a confused resident who exhibited wandering and exit seeking behaviors resulting in the resident leaving the facility unsupervised and without the knowledge of the facility’s staff. The resident was hit by a car and sustained multiple injuries causing death.
- The facility failed to administer an antibiotic medication for 7 days as ordered for a resident discharged from the hospital with diagnoses including pneumonia. The resident required a subsequent 11-day hospitalization for diagnoses including respiratory failure and an infection in the bloodstream.
Examples of a Type A2 violation may include the following:
- The facility failed to send a resident to the hospital for evaluation after the resident drank approximately 24 ounces of hand sanitizer on one occasion; drank approximately 8 ounces of body wash and ate an unknown amount of solid deodorant on a second occasion; and failed to notify the resident’s primary care provider of the resident drinking non-consumable substances on more than one occasion which placed the resident at substantial risk of serious physical harm and neglect.
- A resident was administered medications that belonged to another resident. The medications administered had the strong potential of adverse side effects. The resident required emergent evaluation and treatment in the emergency department of the local hospital which placed the resident at substantial risk of serious physical harm.
Unabated Violations and Penalties:
If a facility has failed to correct any violation within the specified date of correction (30 days for Type A violations; 45 days for Type B violations), these are “unabated violations.” Additional penalty fines may be imposed for unabated violations.
Unabated Type A1 and A2 Violations & Penalties:
When a facility has failed to correct a “Type A1” or “Type A2” violation within 30 days, a monetary penalty fine may be imposed in the amount of up to $1,000 for each day that the Type A1 or Type A2 violation continued to occur beyond the date specified for correction.
The Department has legal authority to impose a monetary fine for:
- The inspection in which the Type A1 or Type A2 violation was first identified and
- Additional monetary penalty fines as a result of each inspection in which the unabated Type A1 violation or unabated Type A2 violation continued to occur beyond the specified date of correction
Unabated Type B Violations & Penalties:
Another unabated violation that could result in the imposition of penalty fines is a “Type B” violation that has not been corrected by the facility within the specified correction date (45 days per regulatory authority), known as an Unabated B violation.
- A “Type B” violation means a violation by a facility of applicable laws and regulations governing a facility which is detrimental to the health, safety, or welfare of any resident, but which does not result in substantial risk that death or serious physical harm, abuse, neglect, or exploitation will occur.
- The range of the fine for an Unabated “Type B” violation that was not corrected is up to $400.00 for each day that the violation continues beyond the date specified for correction.
- Additional penalty fines may be imposed as a result of each inspection in which the unabated Type B violation continued to occur beyond the specified date of correction.
Examples of Unabated Type B violations may include the following:
- Several residents have orders to receive pain medications every evening but on one evening, staff forget to give the residents the ordered pain medications. One resident suffers from shoulder pain and could not sleep from the missed dose. Subsequent doses are given as ordered. The facility is cited a Type B violation for the non-compliance and on a follow-up visit, additional medication errors are noted; therefore, the facility is fined up to $400/day until compliance with medication administration is determined, which must be verified by another follow-up inspection.
- The facility’s pest management program is not effective, and roaches are noted in a couple of the residents’ rooms on one out of two halls in the facility. The facility is cited a Type B violation for the non-compliance and on a follow-up visit, additional roaches and insects are noted; therefore, the facility is fined up to $400/day until compliance with pest management is determined, which must be verified by another follow-up inspection.
The Department will determine whether each violation has been corrected.
Pursuant to Chapter 150B and N.C. Gen. Stat. § 131D-34(e), adult care homes have the legal right to appeal the imposition of a penalty fine by filing a petition for contested case within 30 days after the Department mails a notice of the penalty imposition decision to a Licensee.
Once a penalty has been imposed, payment is due within 60 days unless an appeal is timely filed at the at the Office of Administrative Hearings (OAH).
If a penalty is appealed, it will go to a hearing at the Office of Administrative Hearings (OAH). Alternatively, the Department and the Licensee may agree to resolve the penalty by executing a settlement agreement.
I emphasize, if you disagree with the sanction and/or the accusation, APPEAL. I have been successful in eliminating severe penalties that a residential home, nursing home, or adult care homes by arguing at the OAH. Just remember, DHSR can accuse anything of happening to constitute “abuse or neglect” of a consumer. But DHSR must prove it to a Judge!
Nursing Homes Face Higher Scrutiny and Increased Penalties
Some nursing homes are facing tougher penalties, including the loss of federal funding. In an effort to increase quality of care in nursing homes, the Biden administration implemented revisions to the Special Focus Facility (“SFF”) program, which targets the “worst” nursing homes in each State. Nursing homes are selected for the program by the “single State agency” using a point system based on the number and severity of deficiencies cited during their past 3 inspections.
CMS released a revised SFF Program policy memo QS0-23-01-NH and these revisions are meant to increase: (A) the requirements for “graduation” of the SFF program; and (B) the enforcement for facilities that do not demonstrate improvement. A high-level overview of key changes made in the revised memo are as follows:
- Staffing levels is a consideration for SFF selection: CMS has directed states to consider a facility’s staffing level when selecting facilities for the SFF program. CMS recommends if a State is considering two candidates with a similar compliance history, it should select the facility with lower staffing ratios/rating as the SFF.
- Criteria for Graduation of the Program Escalated: CMS has added a threshold that prevents a facility from exiting based on the total number of deficiencies cited. To graduate from the program, facilities must complete two consecutive standard health surveys, with no intervening complaint, LSC, or EP surveys with 13 or more total deficiencies, or any deficiencies cited at scope and severity of “F” or higher.
- Involuntary Termination Enforced: SFFs with deficiencies cited at immediate Jeopardy (“IJ”) on any two surveys (standard health, complaint, LSC, or EP) while in the SFF program, will now be considered for discretionary termination.
- Enforcement Actions Increased: CMS will impose immediate sanctions on an SFF that fails to achieve and maintain significant improvement in correcting deficiencies on the first and each subsequent standard health, complaint and LSC/EP survey after a facility becomes an SFF. Enforcement sanctions will be of increasing severity for SFFs demonstrating continued noncompliance and failure to demonstrate good faith efforts to improve performance.
- Sustainable Improvements Incentivized: CMS will closely monitor graduates from the SFF program for a period of three years to ensure improvements are sustained. For SFFs that graduate but continue to demonstrate poor compliance identified on any survey (e.g., actual harm, substandard quality of care, or IJ deficiencies), CMS may use its authority to impose enhanced enforcement options, up to, and including discretionary termination from the Medicare and/or Medicaid programs.
It is imperative to note that your past alleged violations will work against you. This means that if you are cited with a deficiency, it is of the utmost importance, if you disagree with the assessment, to appeal the alleged deficiency. If you merely pay the penalty and roll over like an old dog, your lack of appealing can aid toward your demise. You are basically being held to a giant, bell curve against the other nursing homes in your State.
Once in the SFF program, nursing homes are inspected at least every six months rather than annually. State inspectors apply progressive enforcement—penalties, fines, withholding of payments—until the facilities significantly improve or are terminated from Medicaid and/or Medicare.
Nationally, 88 nursing homes participate in the SFF program, about 0.5% of all nursing homes. It is mandatory if chosen.
The facilities with the most points in a state then become candidates for the SFF program. The number of nursing homes on the candidate list is based on five candidates for each SFF slot, with a minimum candidate pool of five nursing homes and a maximum of 30 per State. State Agencies (“SAs”) use this list to select nursing homes to fill the SFF slot(s) in their State. Additionally, since a facility’s staffing (staffing levels and turnover) is very important to residents’ care, CMS recommends that SAs consider a facility’s staffing information when selecting SFFs from the SFF candidate list. See the list of current candidates in Table D, current as of December 7, 2022. For example, NC has 10 facilities on the proposed list for participation in the SFF program. Each State is allotted a number of SFFs the State may allot. See below.
Once a State selects a facility as an SFF, the SA, on CMS’s behalf, conducts a full, onsite inspection of all Medicare health and safety requirements every six months, and recommends progressive enforcement (e.g., civil money penalty, denial of Medicare payment, etc.) until the nursing home either: (1) graduates from the SFF program; or (2) is terminated from the Medicare and/or Medicaid program(s). While in the SFF program, CMS expects facilities to take meaningful actions to address the underlying and systemic issues leading to poor quality.
Once an SFF graduates or is terminated, each SA then selects a new SFF from a monthly list of candidates. CMS also informs candidate nursing homes of their inclusion on the SFF candidate list in the monthly preview of the Five-Star Quality Rating System. The facility will graduate from the SFF program once it has had two consecutive standard health surveys with 12 or fewer deficiencies cited at S/S of “E” or less on each survey (these surveys must have occurred after the facility has been selected as an SFF). To avoid situations where a facility remains an SFF for a prolonged period of time, CMS is establishing criteria that could result in the facility’s termination from the Medicare and/or Medicaid programs. SFFs with deficiencies cited at Immediate Jeopardy on any two surveys while in the SFF program, will be considered for discretionary termination.
While the initial SFF designation is not appealable, the facility does have some appeal rights. Federal regulations allow for dispute resolution and to appeal a finding of noncompliance determined under an SFF survey that results in an enforcement remedy.
If you find yourself on the SFF list, you must hire a lawyer with expertise. Your lawyer should be able to help you “graduate” from the SFF list without termination or closure. Your lawyer can help negotiate Systems Improvement Agreements (“SIAs”) with SAs and CMS to provide additional time for nursing homes to improve their internal systems and the quality of care they provide.
Are UTIs Preventable? OIG Says Yes and CMS Will Audit!
I hope everyone had a fantastic Thanksgiving and are now moving toward the Christmas or Hanukkah holiday. As I discussed last week, CMS and its contracted auditors are turning their watchdog eyes toward nursing homes, critical access hospitals (“CAHs”), and acute care hospitals (“ACHs”). You can hear more on this topic on Thursday, December 8th at 1:30 when I present the RACMonitor webinar, “Warning for Acute Care Hospitals: You Are a Target for Overpayment Audits.”
October 2022, OIG published a new audit project entitled, “Potentially Preventable Hospitalizations of Medicare-Eligible Skilled Nursing Facility Residents.”
Residents of nursing homes and long-term care facilities are frequently transferred to an Emergency Department as an inpatient when they need acute medical care. A proportion of these transfers may be considered inappropriate and may be avoidable, says OIG.
OIG identified nursing facilities with high rates of Medicaid resident transfers to hospitals for urinary tract infections (“UTIs”). OIG describes UTIs as being “often preventable and treatable in the nursing facility setting without requiring hospitalization.” A 2019 OIG audit found that nursing facilities often did not provide UTI detection and prevention services in accordance with resident’s individualized plan of care, which increases the chances for infection and hospitalization. Each resident should have their own prevention policy for whatever they are prone to get. My Grandma, for example, is prone to UTIs, so her personal POC should have prevention measures for trying to avoid contracting a UTI, such as drinking cranberry juice and routine cleansing. In addition to UTIs, OIG noted that previous CMS studies found that five conditions were related to 78% of the resident transfers to hospitals: pneumonia, congestive heart failure, UTIs, dehydration, and chronic obstructive pulmonary disease/asthma. OIG added a sixth condition citing that sepsis is considered a preventable condition when the underlying cause of sepsis is preventable. In my humble opinion, the only condition listed as preventable that is actually preventable is dehydration.
OIG’s new audit project involved a review of Medicare and Medicaid claims related to inpatient hospitalizations of nursing home residents with any of the six conditions noted previously. The audit will focus on whether the nursing homes being audited provided services to residents in accordance with the residents’ care plans and related professional standards (or whether the nursing homes caused preventable inpatient admissions due to non-compliance with care plans and professional standards).
What can you do to prepare for these upcoming audits? Review your facilities’ policies, procedures, and practices germane to the identification of the 6 conditions OIG flagged as preventable. Ensure that your policies and procedures lay out definitive steps to prevent or try to prevent these afflictions. Educate and train your staff of detection, prevention, treatment, and care planning related to the six conditions. Collect and analyze data of trends of frequency and cause of inpatient hospitalizations and determine whether these inpatient hospitalizations could have been prevented and how.
In summary, be prepared for audits of inpatient hospitalizations with explanations of attempted prevention. You cannot prevent all afflictions, but you can have policies in place to try. As always, it’s the thought that counts, as long as, it’s written down.
Licensure Penalties, Plans of Corrections, and Summary Suspensions, Oh My!!
Most of you know that I also appear on RACMonitor every Monday morning at 10:00am eastern. I present a 3-minute segment on RACMonitor, which is a national, syndicated podcast that focuses on RAC audits and the casualties they leave in their wakes. I am joined on that podcast with nation Medicare and Medicaid experts, such as Dr. Ronald Hirsh, health care attorneys David Glaser and me, Tiffany Ferguson, who speaks on the social determinants of health and Matthew Albright, who presents on legislative matters. Other experts join in a rotating fashion, such as Mary Inman, a whistleblower attorney who resides in London, England, Ed Roche, an attorney and statistical wizard who debunks extrapolations, and it is hosted by my friend and producer, Chuck Buck and Clark Anthony and Chyann and others….
But there are other audits that wield similar dire results: OTHER THAN RAC, TPE, MAC, and ZPICs. Licensure audits, for example, can cause monetary penalties, plans of corrections, or even summary suspensions…OH MY!!! (A reference to The Wizard of Oz, obviously).
For hospitals and other health facilities, the licensure laws typically cover issues such as professional and non-professional staffing; physical plant requirements; required clinical services; administrative capabilities; and a vast array of other requirements. In most states, in addition to hospital licensure, full-service hospitals require other licenses and permits, such as laboratory permits, permits relating to hazardous wastes, food service permits, and transportation licenses for hospital-affiliated ambulances. Other residential healthcare facilities, such as nursing homes or behavioral health homes, are typically subject to similar requirements.
Penalties are brandished once audits ensue. Licensure audits do not possess the same financial incentives as RAC audits. In NC the entity that conducts licensure audits is DHSR, the Department of Health Service Regulation. DHSR is still under the umbrella of DHHS, which is the single state entity charged with managing Medicaid. Every State has a DHHS although it may be named something else. In New Mexico, the single state entity is called HSD or Health Services Department. In CA, the single state entity is called DHCS or Department of Health Care Services.
The entity in your State that conducts licensure audits will be under the umbrella of your State’s single State entity that manages Medicaid.
Penalties can be severe.
Summary suspensions occur in all 50 States. A summary suspension is an action in administrative law in which a judge suspends a provider’s license upon the receipt of allegations and prior to a full hearing on the matter. In general, the summary suspension is based on a finding that the suspension is necessary, given the allegations, to protect safety or public health. The summary suspension is a temporary, emergency ruling pending a full hearing on the allegations. For example, in Washington State WAC 170-03-0300(1)(a), permits summary suspension of a child care license by the Department where “conditions in the licensed facility constitute an imminent danger to a child or children in care.”
Imminent dangers can be alleged in hospitals, nursing homes, or residential facilities. I say “alleged” because an allegation is all it takes for a summary suspension to be bestowed. Allegations, unfortunately, must be defended.
Appeal! Appeal! Appeal! Be like Dorothy and get to the Wizard of Oz – no matter what, even if she has to defeat the Wicked Witch of the West!
Last year I had two residential facilities receive summary suspensions at the same time. What do you do if your facility receives a summary suspension?
PANIC.
Kidding. Do not panic. Contact your Medicaid attorney immediately.
Ultimately, we went to trial and defended these two facilities successfully.
A Decline in Home Health and Long Term Care Providers
Hello and Happy birthday Medicare and Medicaid. You are now 56 years old. Medicaid was never supposed to be long-lasting or a primary insurance that it has become. Over 81 million citizens rely on Medicaid. President Lyndon Johnson signed both landmark social programs into law on July 30, 1965.
I have two newsflashes to discuss today. (1) Nursing homes will be targeted by audits because few surveys occurred during COVID, according to a newly published OIG Report; and (2) long-term care facilities, in general, are decreasing in number while the need escalates.
First, the OIG, Addendum to OEI-01-20-00430, published July 2021, “States’ Backlogs of Standard Surveys of Nursing Homes Grew Substantially During the COVID-19 Pandemic,” which is an audit of a mass number of nursing homes across the country.
Nationally, 71 percent of nursing homes (10,913 of 15,295) had gone at least 16 months without a standard survey as of May 31, 2021. By State, the backlogs for standard surveys ranged from 22 percent to 96 percent of nursing homes. Expect a surge of standard audits.
Insert chart.
Second, enrollment in fee-for-service (FFS) Medicare and Medicaid has skyrocketed in recent years, especially due to COVID and longer life-expectancies. This equates to more consumers. It means a need for more providers willing to accept the low reimbursement rates offered by Medicare and Medicaid. More providers plus more consumers equals more RAC and MAC audits. Medicare remains the nation’s largest single purchaser of health care, with home health care services accounting for a decent chunk of spending. Of the $3.2 trillion spent on personal health care in 2019, Medicare accounted for 23% — or $743 billion — of that total.
There were 11,456 home health agencies operating in 2020. That total is down slightly compared to the 11,571 agencies operating in 2019. The number of home health agencies has actually been declining since 2013. Before that, the industry had experienced several years of substantial growth in terms of new agencies opening. The decline in agencies has been most concentrated in Texas and Florida. The number of skilled nursing facilities (SNFs) is also decreasing, though not quite as fast.
My humble opinion? The government needs to be more aware of how aggressive Medicare and Medicaid auditors are. How overzealous. Congress needs to pass legislation to protect the providers who accept Medicare and Medicaid. Like the military, we should be saying, “thank you for your service.”
