AHCA Releases Sobering Report on NF Medicaid Reimbursement

In January, the American Health Care Association released its findings in an eye-opening report on long term care and Medicaid reimbursement shortfalls, especially with respect to nursing facilities. A Report on Shortfalls in Medicaid Funding for Nursing Home Care highlights that an astounding $5.6 billion is estimated in unreimbursed Medicaid allowable nursing home costs in 2010, and the fact that the average nursing home Medicaid reimbursement shortfall for 2010 is $17.33 per Medicaid inpatient day. In looking ahead to 2011, the Report paints an even bleaker picture, as the Federal share of Medicaid reimbursements, which have been temporarily increased under the stimulus bill, will return to their previous lower rates at the end of June 2011.

If you have any questions about the Report, please contact Susan E. Ziel at 317-238-6244 or Leigh Ann O'Neill at 317-238-6346.

Long Term Care Issues: Life Safety Code Update

Due to a drafting error in the 2000 edition of the Life Safety Code ("LSC), interior wall finishes that had were in place before 2000 and that were less than 1/28" in thickness were inadvertently subject to regulations that required documentation of flammability or flame spreading ratings. While the 2000 version did in fact intend to regulate interior wall finishes less than 1/28" in thickness that were completed after the publication of the LSC, it was only recently discovered that the drafters had accidentally omitted an exception for interior finishes in existence prior to the 2000 publication. Unfortunately, due to the oversight, hundreds of thousands of dollars in deficiency citations have been issued to date. If your facility has been cited under the oversight, you are encouraged to contact your state survey agency contact personnel to seek clarification.

If you have questions about the 2000 LSC or the omitted exception, please contact Susan Ziel at 317-238-6244.

AHCA Expresses Concern Over "Pro-Union Push" by NLRB

The National Labor Relations Board ("NLRB") has undergone recent transformations, taking it from a 2-person, bipartisan committee, to a 4-person committee consisting of 3 democrats and 1 republican. The American Health Care Association ("AHCA") has expressed concern over these changes due to AHCA's opposition to any far-reaching action amending federal labor standards. Of particular concern to the AHCA is a recent NLRB decision, Specialty Healthcare and Rehabilitation Center of Mobile vs. United Steelworkers, in which the NLRB found in favor of changing the standards for what are appropriate bargaining units in subacute facilities. Additionally, the AHCA has expressed concern over a proposed rule issued by the NLRB on December 22, 2010 which requires certain notices be posted for employees by employers, with failure to do so resulting in various sanctions.

In support of its positions, the AHCA will file an amicus brief in the above-cited case, and will also submit formal comments with respect to the proposed rule. If you have any questions about the NLRB, its recent cases, or the proposed rule, please contact Susan E. Ziel at 317-238-6244 or Leigh Ann Lauth O'Neill at 317-238-6346.

Bed-Hold Reimbursement and Policy Update

The IHCA recently received feedback from the Office of Medicaid Policy and Planning ("OMPP"), the Division of Aging (the "Division"), and the Indiana State Department of Health ("ISDH") regarding the impacts of OMPP's decision to eliminate Medicaid reimbursement for bed-holds effective February 1, 2011. The following guidance, in Q & A format, is based on the collective responses of the above agencies.

Q: Are comprehensive care facilities required to hold beds for Medicaid residents or any other residents?

A: No, there is no requirement that a comprehensive care facility hold a bed for any resident. However, every facility must have a bed-hold policy and must give information to residents about what the facility's bed-hold policy allows.

Q: What must be included in a facility's bed-hold policy?

A: At a minimum, the policy must state that Medicaid does not pay for bed-holds and, if the facility offers an option for residents to personally pay for holding a bed, what the resident's options are in order to hold the bed and the facility's charge for holding a bed. The policy must also address readmission of a Medicaid resident to the first available semi-private bed if the Medicaid resident has exceeded the Medicaid allowable bed-hold period, if the resident requires nursing home level care and is eligible for Medicaid. Because the Medicaid allowable bed-hold period as of February 1, 2011 is zero, a Medicaid resident must be re-admitted in the manner described above. Facilities must inform all residents upon admission of the facility's bed-hold policy and all residents must be informed thirty (30) days in advance of any changes to rates or services that are covered by the rates.

Q: Is a comprehensive care facility required to readmit a Medicaid resident that has left the facility on hospital or therapeutic leave?

A: Yes. Under Federal and State regulation, a comprehensive care facility must readmit a Medicaid resident to the first available semiprivate bed, assuming the resident requires comprehensive care services and qualifies for Medicaid, when the resident's leave exceeds the Medicaid coverage limitation. Because the Medicaid allowable bed-hold period as of February 1, 2011 is zero, a resident must be readmitted in the manner described above.

Q: How can a comprehensive care facility charge a Medicaid resident to hold a bed?

A: Because Medicaid will no longer reimburse to hold a bed under any circumstances, all bed-holds are considered a non-covered service that a resident may elect to personally pay for, if the facility offers such an option. In addition to the required information about the facility's bed-hold policy that must be given to a resident, the facility must follow the requirements for billing Medicaid recipients for non-covered services as set forth in the Indiana Health Coverage Programs Provider Manual, Chapter 4, Section 5. Facilities can only charge Medicaid residents for items and services requested by the resident.

Q: Will comprehensive care facilities be required to submit a new from 450B and resubmit pre-admissions screening forms following a hospital or therapeutic leave of absence?

A: A facility must resubmit a new form 450B and resubmit pre-admissions screening forms only when the resident has been discharged from the facility. Depending on the facility's bed-hold policy, a resident may not be discharged upon leave. In any event, as long as the resident intends to return to the facility there is no requirement to discharge the resident. If, however, the facility does not anticipate the residents' return to the facility the resident must be discharged and all new admissions criteria must be followed if the resident is re-admitted to the facility.

Q: Under what circumstances should a comprehensive care facility submit a claim to OMPP for bed-hold days?

A: Until January 31, 2011, comprehensive care facilities must submit claims for bed-hold days as set forth in the Indiana Health Coverage Programs Provider Manual Chapter 14, Section 3. Beginning February 1, 2011, comprehensive care facilities should not submit any claims for bed-hold days under any circumstances, including Revenue Code 180. Because OMPP will no longer reimburse for bed-hold days, OMPP will no longer be tracking bed-hold days via claims.

The OMPP is also providing further clarification on this issue on it's website.

The IHCA continues to collect questions about the impacts of the OMPP decision to eliminate Medicaid reimbursement for bed-holds. The IHCA is currently in discussion with OMPP and the Division regarding how the elimination of bed-hold reimbursement will impact the overall Medicaid rate setting process. Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001 with any questions or comments.

MDS 3.0 Training in South Bend

The IHCA is proud to endorse the Community Foundation of St. Joseph County's training session on the MDS 3.0 on January 26, 2011 at the Logan Center in South Bend. "MDS 3.0 Beyond the Form: A Team Approach" is a regional nursing home learning collaborative offered by the Foundation and Health Care Excel. This intial training will help nursing home leaders focus on using the MDS 3.0 as a quality improvement tool for stabilizing your workforce, individualizing care, and improving your outcomes.

Wednesday, January 26, 201110 a.m.–2 p.m.
LOGAN Center
2505 E. Jefferson Blvd.
South Bend, IN 46615

Open to nursing homes in St. Joseph County at NO COST
Strongly encourage all Administrators, DONs & MDS Coordinators to attend
Practical approaches that you can immediately apply to improve your experience with MDS 3.0
Potential for a more intensive, yearlong training
CEUs available
Lunch provided

RSVP to Christopher Nanni, Vice President, Program, at the Community Foundation of St. Joseph County: (574) 232-0041 or email chris@cfsjc.org.

Quality Indicator Survey Training

The IHCA is beginning its QIS educational programs for members and non-members in 2011 by offering three, one-day training sessions on the QIS process across the state in January. The sessions will guide participants through the fundamentals of the Quality Indicator Survey.

January 25, 2011 - Holiday Inn, Indianapolis
January 26, 2011 - Courtyard by Marriott Chicago Southeast/Hammond
January 27, 2011 - Jasper Inn and Convention Center

For more information or to register, click here.

Tracking RAC Info Made Easy

The American Health Care Association (AHCA) recently announced the launch of a new website which will make it easier for health care providers to track new information in the realm of Recovery Audit Contractor (RAC) activity. It is important for long term care providers, such as skilled nursing facilities, to keep track of the new issues being reviewed by the RAC. To view the latest RAC postings coming out of the Centers for Medicare and Medicaid Services (CMS) visit the AHCA Medicare RAC website, http://www.ahcancal.org/facility_operations/MedicareRAC/Pages/default.aspx.

If you have questions or require additional information, please contact Susan Ziel at 317-238-6244 or sziel@kdlegal.com.

Indiana Medicaid Reduces Payment for Transportation Services and Limits Therapy Visits

On December 8, 2010, Indiana Medicaid published two bulletins reducing Medicaid payment for transportation services and limiting the number of therapy visits reimbursable by Indiana Medicaid beginning January 1, 2011. For transportation services (IHCP Bulletin 201057), reimbursement for ambulance transportation services will be reduced by 5 percent and reimbursement for non-ambulance transportation services will be reduced by 10 percent. For therapy services (IHCP Bulletin 201058), reimbursement for speech, occupational and physical therapies will be limited to 25 therapy visits for each type of therapy per rolling 12-month period to all members age 21 or older.

If you have questions or require additional information, please contact Susan Ziel at 317-238-6244 or sziel@kdlegal.com.

AHCA Submits Comments on Proposed LTC/Hospice Contract Rule

In October, the Department of Health and Human Services published a proposed rule which would require that a written agreement be established between a long term care (LTC) facility in which a Medicare beneficiary is residing, and a Medicare-certified hospice program that is providing care to the resident. Specifically, the proposed rule states that when an LTC facility chooses to arrange for hospice services for its residents through an agreement with a Medicare-certified hospice program, the two entities must have in place a written agreement which must "clearly identify the responsibilities of each entity when arranging for the provision of hospice services to an LTC resident who elects the hospice benefit. This agreement would be required even if the Medicare-certified hospice and the LTC facility were under common control and/or ownership." In casesof an LTC facility that chooses not to formally arrange hospice care for its residents, the proposed rule will require that such facilities assist residents in transferring toa different LTC facility that would arrange for hospice care services to be provided to the resident.

On December 21, 2010, the American Health Care Association (“AHCA”) submitted its formal comments on the proposed rule to HHS. Among its comments, the AHCA raised concern over a provision of the proposed rule which places on nursing facilities a responsibility to ensure that the contracted hospice provider meets certain professional standards,and that services are timely provided. The AHCA contended that it is not possible or reasonable for the nursing facility to ensure that the hospice meets these requirements.The AHCA also noted and requested clarification of an inconsistency between the proposed contract requirements and the conditions of participation for hospices relating to certain notice requirements. Additionally, in response to the proposed rule’s requirement that the written agreements ensure that a resident’s plan of care include services furnished by the LTC facility to attain or maintain the resident’s highest possible physical, mental, and psychosocial well-being, the AHCA commented that due to the changes likely to take place for residents once they choose hospice care, confusion may arise as to what constitutes the resident’s highest practicable well-being. Therefore, the AHCA suggested that the proposed rule be amended to clarify that the determination of highest practicable well-being should be made in consideration of changes in the resident’s health status and choices relating to the type of care the resident wishes to receive.

If you have questions about the proposed rule or the AHCA’s comments thereto, please contact Susan Ziel at 317-238-6244 or sziel@kdlegal.com.

OIG Releases Report on Long Term Care Payments

On December 22, 2010, the Office of Inspector General ("OIG") released a report which examined billing trends of skilled nursing facilities ("SNFs") from 2006-2008. The purpose of the report was to determine if certain services had higher utilization rates over the span of the 2 years, to see if ownership differences existed from 2006 to 2008, and to identify SNFs with questionable billing practices in 2008.

Among its findings, the OIG determined that higher-paying rehabilitation-related resource utilization groups ("RUGs") were billed in 2008 than in 2006, and that this trend correlated positively with for-profit status, whereas not-for-profit or government-owned SNFs were less likely to bill for the higher-paying RUGs. The OIG also found that for-profit SNFs had longer lengths of stay than other SNFs, and that the longer lengths of stay were not related to the types of populations in the various different types of SNFs.

For a copy of the OIG Report, go to http://oig.hhs.gov/oei/reports/oei-02-09-00202.pdf. If you have questions or require additional information, contact Susan Ziel at (317) 238-6244 or sziel@kdlegal.com.

Yet Another HIPAA Security Breach...

Detroit, Michigan hospital -- Henry Ford Health Systems -- had one of its laptops stolen out of an unlocked physician's office in September. The laptop contained certain individually identifiable patient information protected under HIPAA. The Hospital acknowledged that although the laptop was "password protected," this did not represent a health data protection standard required by the Hospital under its updated health information privacy and security policies.

As required by the HITECH Act amendments to HIPAA, the Hospital was required to notify the subject patients within 60 days of the breach. The Hospital is also obligated to notify HHS' Office of Civil Rights (OCR). A recent review of the OCR database of breaches involving 500 or more individuals, which can be accessed at http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/breachtool.html, reveals that many of the reported breaches to date involve the the loss or theft of laptops and other types of portable electronic devices that had not otherwise been properly secured by way of "encryption" in accordance with the new HITECH Act amendments to HIPAA.

If you would like additional information, please contact Susan Ziel at sziel@kdlegal.com or (317) 238-6244.

"Bed Hold" Reimbursement Update

IHCA previously issued an alert to members in late December regarding the Indiana Office of Medicaid Policy and Planning (“OMPP”) posting of BT 201061, which provides formal notice of the elimination of reimbursement for bed-hold days on nursing facilities effective as of February 1, 2011. For a copy of this bulletin, click here. This change willspecifically eliminate reimbursement for the following codes: 180 (leave days), 183 (for therapeutic purposes), and 185 (from nursing homes for hospitalizations).

Since OMPP’s announcement, IHCA has received many questions from members about the impact of this reimbursement change on bed-hold policies and billing/cost-report procedures.IHCA has been in communication with OMPP, the Indiana State Department of Health (“ISDH”) and the Division of Aging (“DA”) regarding these questions and has requested that theagencies, either individually or collectively, issue guidance to the long term care profession to clarify what is or is not required of comprehensive care facilities as a result of this reimbursement change.

Several IHCA members have asked whether comprehensive care facilities will be “required” to hold beds for Medicaid residents after elimination of Medicaid reimbursement for bed-hold days. Under the current law, and the law as it will exist on February 1, 2011 when Medicaid bed-hold reimbursement is eliminated, there is no requirement that facilities hold beds for Medicaid residents (unless, of course, Medicaid reimbursement is being paid or the individual resident is paying the facility in order to hold the bed).

Under ISDH regulations, however, each facility must have a policy and provide written information to residents regarding bed-holds that is consistent with the Medicaid State Plan. The language in the Medicaid State Plan regarding bed-holds for comprehensive care facilities states “Although it is not mandatory for facilities to reserve beds, Medicaid will reimburse” facilities that meet the occupancy criteria and for 15 or 30 day periods for hospital and therapeutic leaves, respectively. That language gives facilities a choice as to whether it wants to hold beds for Medicaid residents, and if the facility chose to do so then the facility’s policy on bed-hold had to take into account the Medicaid State Plan. At the time of this publication, it is unclear whether the ISDH will be amending its rule (410 IAC 16.2-3.1-12(25) and (27)) in light of the Medicaid reimbursement change. Even if ISDH does not amend its rule to reflect the lack of a bed-hold policy under Medicaid, each comprehensive care facility must still have a policy in place and provide information to residents regarding bed-holds.

Other questions that IHCA has received relate to the discharge and re-admission process with Medicaid residents who have been on hospital or therapeutic leave. When the bed-hold reimbursement rule was adopted in 2002, OMPP published BT200204 that walked through the bed-hold reimbursement rule, the occupancy calculation and impacts of the reimbursement change on the 450B process and claims and financial reporting processes. Since publication of that bulletin, OMPP further clarified discharge, re-admission andthe 450B processes in the Medicaid Provider Manual. At the time of this publication, IHCA is aware that OMPP is analyzing the impact of the reimbursement change on each of the above discharge, re-admissions and claims issues and has offered to assist OMPP in issuing guidance to the long term care profession to clarify these processes going forward.

IHCA recommends that each comprehensive care facility examine its bed-hold policy and be prepared to amend the policies in order to take into account the elimination of Medicaid reimbursement for bed-holds and the facility’s operational needs. Each comprehensive care facility must, by ISDH rule, maintain these policies and information.

IHCA will continue to research and work on this issue in the coming weeks and will issue additional guidance at the appropriate time. IHCA is hopeful that guidance will become available prior to the February 1, 2011 effective date of the reimbursement change.
Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001 with questions, comments, examples or other information about the bed-hold reimbursement change.