Category Archives: Legal Remedies for Medicaid Providers

CMS Published 2023 Medicare/caid Health Care Providers’ Audit Process

THE CENTER FOR MEDICARE AND MEDICAID SERVICES (“CMS”) 2023 Program Audit Process Overview came out recently. The report is published by the Division of Audit Operations. CMS will send engagement letters to initiate routine audits beginning February 2023 through July 2023. Engagement letters for ad hoc audits may be sent at any time throughout the year. The program areas for the 2023 audits include: 

  • CDAG: Part D Coverage Determinations, Appeals, and Grievances
  • CPE: Compliance Program Effectiveness
  • FA: Part D Formulary and Benefit Administration
  • MMP-SARAG: Medicare-Medicaid Plan Service Authorization Requests, Appeals, and Grievances
  • MMPCC: Medicare-Medicaid Plan Care Coordination 
  • ODAG: Part C Organization Determinations, Appeals, and Grievances
  • SNPCC: Special Needs Plans Care Coordination

The Program Audit Process document is only 13 pages. Yet, it is supposed to set forth the rules that the auditors must abide by in 2023. My question is – what if they don’t. What if the auditors fail to follow proper procedure.

For example, similarly to last year, an audit consists of 4 phases.

  1. Audit engagement and universe submission
  2. Audit field work
  3. Audit reporting
  4. Audit validation and close out

I would like to add another phase. Phase 5 is appeal.

According to the Report, and this is a quote: “the Audit Engagement and Universe Submission (which is the 1st stage) is a six-week period prior to the field work portion of the audit. During this phase, a Sponsoring organization is notified that it has been selected for a program audit and is required to submit the requested data, which is outlined in the respective Program Audit Protocol and Data Request document.” My question is: The sponsoring organization? CMS is referring to the provider who getting audited as a sponsoring organization. And why does CMS call the provider who is getting audited sponsoring? Is it because after the audit the sponsoring organization will be paying in recoupments?

It is interesting that the first phase “Audit Engagement and Universe Submission,” lasts 6 weeks. At this point, I want to know, does the provider know that the facility has been targeted for an audit? As an attorney, I get to see the process in the aftermath. Folks call me in distress because they got the results of an audit and disagree. I have never had the opportunity to be involved from the get go. So, if any of y’all receive a notice of an audit, please call me. I won’t charge you. I just would love the experience of walking through an audit from the get go. I think it would make me better at my job.

In other news, as you know, CMS may issue civil money penalties to providers for alleged noncompliance. Other penalties exist as well, which may or may not be worse that civil penalties. On January 23, 2023, CMS published a correction that Total Longterm Care, Inc. d/b/a InnovAge Colorado PACE (InnovAge CO) corrected its violations. In 2021, CMS had suspended its ability to re-enroll. Another facility was imposed with pre-payment review, which means that the facility must submit claims to an auditor prior to receiving reimbursements. Pre-payment review is probably the worse penalty in existence. A client of mine was told yesterday that pre-payment review is imminent. The only recourse for pre-payment review is a federal or State injunction Staying the suspension of reimbursements. You cannot appeal being placed on pre-payment review. But you do have a chance to Stay the suspension. The suspension makes no sense to me. It’s as if the government is saying that you are guilty before an ability to prove innocence.

Recoupment, Recoupment, Everywhere and Not a Drop to Keep

The Rime of the Ancient Mariner, a poem written by Samuel Coleridge, states “Water, water everywhere, nor any drop to drink.” It is a tale of retribution. The poem talks about a mariner who is traveling with his fellow sailors. Suddenly, when the mariner finds an albatross chasing them, the mariner at once kills the albatross in cold blood without any major reason. After the killing of the bird, nothing goes well with the mariner. He is not in a position even to hold communion with God. Killing an albatross is symbolic of showing a criminal disregard for a creature of nature.

Now, imagine the mariner is a Medicare or Medicaid auditor. You are the albatross. According to Coleridge, an auditor that needlessly and mindlessly accuses you of owing $1 million in alleged overpayments should suffer dire consequences. However, unlike in poetry, the auditors suffer nothing. The albatross may or may not perish. A health care company may or may not go bankrupt due to the mariner/auditor’s inane actions.

I have a case right now that the auditor applied the 1995 AND 1997 guidelines, instead of only the 1995 or 1997 guidelines. The auditor created a more rigid criteria than what was actually required. Not ok.

So, how do you stop recoupment when you are accused of owing money for allegedly improperly billing Medicare or Medicaid?

  1. Hire an attorney as soon as you receive a Tentative Notice of Overpayment (“TNO”). Do not do, what multiple clients of mine have done, do not wait until the last few days of being allowed to appeal the TNO until you contact an attorney. You want your attorney to have time on his or her side! And yours!
  2. Appeal timely or recoupment will begin. If you do not appeal, recoupment will occur.
  3. Start putting money aside to pay for attorneys’ fees. I hate saying this, but you are only as good (legally) as what you can pay your attorneys. Attorneys have bad reputations regarding billing, but in a situation in which you are accused of owing mass amounts of money or, in the worst case scenario, of fraud against Medicare, you want an experienced, specialized attorney, who understands Medicare and Medicaid. Note: You do not need to hire an attorney licensed or located in your State. Administrative Law Courts (where you go for Medicare and Medicaid legal issues) do not require the attorneys to be legally licensed in the State in which they are practicing. At least, most States do not require attorneys to be licensed in the State in which they are practicing. There are a few exceptions.
  4. Meditate. The process is tedious.

Don’t Like the Reimbursement Rates? Maybe Litigation Is the Answer!

The Medicare and Medicaid reimbursement rates are a disgrace to health care providers nationwide. The low reimbursement rates are the reason why so many providers refuse to accept Medicare and/or Medicaid patients. Yet, with the pandemic, it is estimated that 100 million people will be on Medicaid by next year. Having a Medicaid card to wave around is useless if providers refuse to accept it.

Hospitals in Nebraska are not putting up with it – and they should not put up with it! Not only can hospitals NOT turn away any person; thus being forced to accept Medicaid and Medicare … and uninsured patients, but the overhead for a hospital is astronomical.

Saying more than half of the state’s hospitals are operating in the red, the Nebraska Hospital Association is calling for a 9.6% increase to Medicaid reimbursement rates this year, and 7.7% next year, after seeing a 2% bump each of the last two years.

The Hospital Association has never demanded this high of a rate increase. Inflation has significantly impacted the costs for Nebraska hospitals. The association says drug costs are up 35%, labor costs are up 20%, supplies are up 15-20%, and food and utilities are up 10%. Overall, it says inflation is up more than 20% per patient compared to the pre-pandemic level. The cost of labor has spiked, especially during the pandemic when emergency room nurses were in such short supply and such demand. Some hospitals were forced to pay nurses $10k a week! Traveling nurses became a “thing,” which allowed nurses to jump around hospitals for the best pay. In no way, I am not campaigning for lower salaries for nurses. Nurses are essential. However, the reimbursement rates are supposed to reflect society’s needs.

The Nebraska Hospital Association is completely in the right to sue for higher reimbursement rates. I commend them. I beseech more association groups to do the same. The dental, pediatric, primary care, home health, long term care facilities, behavioral health care, and other associations across the country should follow suit.

The legal argument is clear. Under §1902(a)(30)(A) of the Social Security Act, State Medicaid programs must ensure that provider payments are “consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers” to provide access to care and services comparable to those generally available. On November 2, 2015, CMS issued a regulation (42 CFR Part 447) under this authority requiring State Medicaid programs to demonstrate that their Medicaid fee-for-service (FFS) non-waiver payment rates ensure sufficient access to care. See blog.

Hospitals lose money on Medicare and Medicaid patients. Considering the legal requirement of reimbursement rates to be consistent with efficiency, economy, and quality of care, I am shocked that MORE associations haven’t litigated this issue. Perhaps the providers within these associations, who pay high yearly memberships, should demand that associations fund this type of litigation.

I have no doubt that the cost of litigation dissuades most associations from making the expensive decision to litigate for better rates. But isn’t litigating for higher reimbursement rates the job of the associations? The cost would be prohibitive for single provider facilities. And, aren’t we always more strong when we band together?

Family Practice Doctors: Is It CPT 1995 or 1997 Guidance?

Right now, CMS allows physicians to pick to follow the 1995 or 1997 guidelines for determining whether an evaluation and management (“e/m”) visit qualifies for a 99214 versus a 99213. The biggest difference between the two policies is that the 1995 guideline allows you to check by systems, rather than individual organs. Starting January 1, 2023, there are a lot of revisions, including a 2021 guidance that will be used. But, for dates of service before 2021, physicians can pick between 1995 and 1997 guidance.

Why is this an issue?

If you are a family practitioner and get audited by Medicare, Medicaid, or private pay, you better be sure that your auditor audits with the right policy.

According to CPT, 99214 is indicated for an “office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a detailed history, a detailed examination and medical decision making of moderate complexity.”

Think 99214 in any of the following situations:

  • If the patient has a new complaint with a potential for significant morbidity if untreated or misdiagnosed,
  • If the patient has three or more old problems,
  • If the patient has a new problem that requires a prescription,
  • If the patient has three stable problems that require medication refills, or one stable problem and one inadequately controlled problem that requires medication refills or adjustments.

The above is simplified and shorthand, so read the 1995 and 1997 guidance carefully.

An insurance company audited a client of mine and clearly used the 1997 guidance. On the audit report, the 1997 guidance was checked as being used. In fact, according to the audit report, the auditors used BOTH the 1997 and 1995 guidance, which, logically, would make a harder, more stringent standard for a 99214 than using one policy.

Now the insurance company claims my client owes money. However, if the insurance company merely applied the 1995 guidance only, then, we believe, that he wouldn’t owe a dime. Now he has to hire me, defend himself to the insurance company, and possibly litigate if the insurance company stands its ground.

Sadly, the above story is not an anomaly. I see auditors misapply policies by using the wrong years all the time, almost daily. Always appeal. Never roll over.

Sometimes it is a smart decision to hire an independent expert to verify that the physician is right, and the auditors are wrong. If the audit is extrapolated, then it is wise to hire an expert statistician. See blog. And blog. The extrapolation rules were recently revised…well, in the last two or three years, so be sure you know the rules, as well. See blog.

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.

A Story of Three Medicaid Providers’ Erroneous Terminations

I have a story for you today that affected three, Medicaid, behavioral health care providers back in 2013. Instead of me spouting off legal jargon that no one understands, I am going to tell you a nonfictional story.

Since both stories occurred in NC, we will use DHHS, the Department of Health and Human Services, which is the acronym for NC’s Medicaid agency.

In 2013, a Residential Level IV facility was shut down overnight by the managed care organization (“MCO”), Alliance, which was one of many MCOs that managed all behavioral health care for NC Medicaid recipients within their respective, catchment areas. The facility, we will call Alpha, housed 5-6, at-risk, teenage, African American, males, who could not reside in their family’s home due to mental illness, substance abuse, legal trouble, and/or violence. The owners of Alpha, themselves were large, muscular, African American males, which, I can only imagine, was to their benefit.

Alliance terminated Alpha from its catchment area, but since Alpha only provided Medicaid services in Alliance’s catchment area, Alliance’s decision would close a business immediately, terminate all staff, cause the owners to lose their careers, and the residents would have no home.

Alpha hired me. We were successful in obtaining an injunction. Click on “injunction” to read my blog about this exact situation in 2013, written by me in 2013. I have written numerous blogs on the topic of erroneous terminations of Medicaid providers over the years. Here are a couple: blog and blog.

An Administrative Law Judge (“ALJ”) ruled in our favor that Alliance does not have the legal authority to terminate a provider for no reason or any erroneous reason. The ALJ Stayed the termination and Ordered Alliance to reverse the termination and continue to contract with Alpha.

Whew! We thought. Then, Alliance flat-out ignored the ALJ’s Order.

We brought a Motion for Contempt and/or Sanctions; however, we were instructed, at the time, that a Writ of Mandamus was the appropriate venue in Superior Court. This too was unsuccessful.

During our legal battle for Alpha, we were successful in obtaining injunctions for two other provider also terminated without cause.

Alpha did close. But the bright side of the story is what happened in the future. Those 3 injunctions, which were ignored by MCOs to the detriment of the three providers, were the last ones to be ignored. In the years that followed, OAH ALJs routinely held MCOs accountable for erroneous terminations and without cause terminations.

My team has witnessed successful injunctions across the country that protect providers from arbitrary and capricious terminations. We have litigated many of these successful injunctions.

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!

District Court Upholds ALJ’s Decision that Extrapolation Was Conducted in Error

Today, I am going to write about a hospital in Tennessee that underwent an audit, and the MAC determined that the hospital owed over $5 million. The hospital challenged both the OIG contractor’s sampling methodology and its determinations on specific claims by requesting a hearing before an ALJ. The District Court decision was published in September 2022. The reason that I want to make you aware of this case, is because there have been numerous Medicare provider appeals unsuccessfully challenging the extrapolation, and the ALJs upholding the extrapolations. In this case, the ALJ found the extrapolation in error, the Council reversed the ALJ on its own motion, and the district court reaffirmed the ALJ, saying the extrapolation was faulty. Whenever good case law is published, we want to analyze the Court’s reasoning so we, as attorneys, can replicate the winning arguments.

One of the main reasons that the district court agreed that the extrapolation was faulty was because no testimony supporting the OIG contractor’s extrapolation process or the implementation of its statistical sampling methodology were submitted to that hearing on June 11, 2020, and the contractor did not appear. It’s the mundane scene with an ALJ level appeal and the auditor failing to appear to prove the audit’s veracity. See blog.

In addition to finding that additional claims satisfied Medicare coverage & payment requirements, the ALJ also found that OIG’s statistical extrapolation process did not comply with § 1893 of the Social Security Act, nor with the MPIM’s guidance on statistical extrapolation.

The ALJ held that HHS policy requires that the OIG’s audit must be able to be recreated and that as the audit’s sampling frame utilized data from outside of the audit, the audit could not be recreated.

The Council subsequently reviewed the ALJ’s decision on its own motion and reversed that decision in part, finding that the ALJ’s determination that the sampling process was invalid was an error of law. The Council then concluded that the OIG contractor’s statistical extrapolation met all applicable Medicare legal and regulatory requirements. 

The hospital appealed to the federal district court. The district court’s review consists of determining whether, in light of the record as a whole, the Secretary’s determination is supported by “substantial evidence.”

According to the Court, the hospital amply demonstrated that the Council did not have the authority to overturn the decision of the ALJ on own-motion review. Accordingly, the hospital’s Motion for Summary Judgement was GRANTED and the extrapolation was thrown out.

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.