IHCA
by Zach Cattell, J.D., IHCA General Counsel
On June 17th, 2011, the Centers for Medicare and Medicaid Services (“CMS”) released Survey and Certification Memorandum 11-30-NH (the “Memorandum”) (for a copy click: S&C 11-30-NH) that provides guidance to State Survey Agencies (“SSA”), the Indiana State Department of Health (“ISDH”) in Indiana, regarding the reporting of reasonable suspicions of crimes in long term care facilities (“LTC”), also known as the “Section 1150B requirements.” The requirement for covered individuals to report suspicions of crimes in LTCs to the SSA and at least one law enforcement agency, as well as requirements on LTCs to notify covered individuals of their duty to report, all stem from the Elder Justice Act that was part of the Patient Protection and Affordable Care Act of 2010.
Summary of the Memorandum
1. Scope and Applicability
The Memorandum has been long expected by the LTC industry and by SSAs and serves as the only official guidance from CMS on the suspicion of crimes reporting requirement. CMS acknowledges that there are “no CMS regulations that apply specifically to section 1150B [the reporting requirements]” and the Memorandum serves to explain the requirements of the new law so that it is implemented without any delay that may be caused due to the rule-making process. CMS notes further guidance will be released that addresses implementation of the Civil Monetary Penalty component of the Section 1150B requirements.
The reporting law applies to all LTC facilities that received at least $10,000 in annual federal funds during the preceding year. The Memorandum specifies that the reporting obligation applies to Nursing Facilities, Skilled Nursing Facilities, hospices that provide services in long-term care facilities and ICFs/MR. Based on the Memorandum it does not appear that CMS has interpreted Section 1150B to apply to assisted living facilities receiving Medicaid waiver funds. Under the new law, a covered long term care facility must:
1. Determine each year whether it received at least $10,000 in Federal funds in the preceding year;
2. Annually notify all covered individuals of the individual’s reporting obligation (covered individuals are owners, operators, employees, managers, agents or contractors of the facility);
3. Post a notice in appropriate and conspicuous locations for employees that details employees’ rights, including information on how to file a complaint with the SSA if an employee is retaliated against for making a report to the SSA pursuant to the reporting requirement;
4. Not retaliate against a covered individual who lawfully reports a reasonable suspicion of a crime under Section 1150B.
The Memorandum then goes on to discuss functions that will be executed by “[a] facility that effectively implements section 1150B,” which are:
1. Coordination with State and local law enforcement to determine what actions are considered crimes;
2. Review existing facility policies and procedures to ensure compliance with existing CMS and State requirements for reporting incidents and complaints (i.e. policies and procedures in place for reporting of abuse, neglect or misappropriation of resident property); and
3. Develop and maintain policies and procedures to ensure compliance with Section 1150B.
Civil Monetary Penalty and exclusion sanctions may apply to individuals who fail to comply with the reporting requirements, to LTC facilities that retaliate against an employee who makes a lawful report, and LTC facilities are ineligible to receive Federal funds for any period they employ an excluded individual due to certain violations of the new law.
2. Covered Individual Reporting
Covered individuals (owners, operators, employees, managers, agents or contractors of the facility) are required to report reasonable suspicions of crimes to the SSA and at least one local law enforcement agency. The required reporting time period depends on whether the reasonable suspicion was based on events that result in serious bodily injury; these suspicions must be reported immediately and no later than 2 hours after the suspicion was formed. All other events giving rise to a reasonable suspicion of a crime must be reported no later than 24 hours after the suspicion was formed.
While each covered individual has the right and duty to report to the SSA and at least one local law enforcement agency, multiple covered individuals may file a single report that includes information about the suspected crime from each covered individual. Each covered individual that joins a multiple-person report should be specifically identified. A multiple-person report may be further supplemented with additional information should additional covered individuals become aware of the incident or events giving rise to a reasonable suspicion of a crime. Thought the multiple-person reporting mechanism may be instituted by a facility, a facility may not prohibit an individual from directly reporting to the SSA or a local law enforcement agency.
3. Survey Agency Actions Based on Reports Received
The Memorandum also provides SSAs with guidance on distinguishing between types of allegations that it may receive from covered individual reports. The allegation categories specified by CMS are (1) Events Giving Rise to a Suspected Crime; (2) Allegations of Individual Failure to Report; and (3) Allegations of Facility Failure to Comply with Section 1150B. In each case, if an SSA receives a report that falls into any of the above three categories, the SSA must assess the reported information and investigate based upon existing CMS policies and procedures for addressing complaints or incidents. Any deficiency citations issued will be ones that are currently specified in existing CMS regulations and guidance.
For example, the Memorandum states that an allegation that a covered individual did not report or were not informed of their duty to report could lead to a F226 tag (failure to develop and/or implement policies and procedures for reporting abuse/neglect) or an F493 tag (failure to develop and/or implement policies and procedures regarding management and operation of the facility).
Association Actions and Next Steps
IHCA and the AHCA have been actively engaged in analysis of the Memorandum, and IHCA has engaged the ISDH to develop further State-specific guidance regarding implementation of the Memorandum in Indiana. While the Memorandum answers several questions that had arisen since passage of the law, open questions regarding what constitutes “reasonable suspicion” and “crime” still need to be addressed in order that LTC facilities are given proper guidance to comply with this very broad law.
AHCA has also released a sample reporting form (click here for a copy) and a sample policy and procedure (click here for a copy) that facilities may use as the basis for their own individualized reporting form and policy and procedure. In addition, the IHCA is considering appropriate steps to take with law enforcement leadership in Indiana to help further define the reporting requirement.
Conclusion
The Memorandum expressly states that SSAs are to focus on “(a) the events giving rise to the reports made under this [the Section 1150B] requirement and (b) the LTC facility’s responsibilities under existing CMS conditions and requirements to report incidents, prevent abuse or neglect, provide quality care and a safe environment, train staff, and similar duties of direct relevance to safety and quality of care.” The IHCA recommends that LTC facilities immediately develop stand alone policies and procedures addressing the Section 1150B requirements, and examine existing policies and procedures addressing the existing CMS requirements and incorporate the new Section 1150B reporting requirements into those policies and procedures.
The above guidance is not intended to be specific legal advice and facilities should seek independent legal counsel when developing facility-specific policies.
The IHCA is able to assist facilities find legal counsel. Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001.
Friday, July 1, 2011
Bed-Hold Policies: What is required of Indiana’s Long Term Care Facilities?
by Zach Cattell, J.D., IHCA General Counsel
IHCA continues to field questions from members regarding facility-level impacts of the decision by the Indiana Office of Medicaid Policy and Planning (“OMPP”) to eliminate reimbursement for bed-hold days. The elimination of reimbursement for bed-holds was effective February 1, 2011, (for a copy of this bulletin, click here) and the Indiana Medicaid State Plan will be amended in the coming months to finalize elimination of reimbursement. OMPP has also posted, and periodically updated, a news summary on IndianaMedicaid.com that discusses the impact of the reimbursement change on Indiana’s long term care facilities and their residents (Click here for the news summary).
More recently, requirements for long term care facilities to maintain updated bed-hold policies were discussed during a panel presentation at the 2011 IHCA Convention & Expo in May. In addition to the above OMPP-issued materials, the IHCA offers the following points for long term care facilities when developing bed-hold policies.
• Facilities must have a bed-hold policy that states whether or not the facility allows a resident to pay to hold a bed during a leave of absence
o Though facilities are not required to allow a resident to pay to hold a bed, facilities must still have a policy that states whether or not payment for holding a bed is permitted by the facility
• The duration of the bed-hold period must be clearly stated in the facility policy
• Bed-hold policies should state that Indiana Medicaid does not reimburse for bed-holds
• Payment by residents for bed-holds must follow applicable Medicare and Medicaid guidelines regarding billing for non-covered services
• Charges for bed-holds should be set at fair market value and must be equally applied to all residents regardless of payor source
o Facilities may be at risk for Anti-Kickback violations related to improper inducements to government program beneficiaries if charges for bed-holds are not fair market value and equal application of those charges are not maintained. However, an exception to the Anti-Kickback statute may apply in certain circumstances for bed-hold charges that are unable to be collected. This exception depends on certain elements regarding facility advertisements, other relevant services and financial need of the resident.
• If a resident on leave is expected to return to the facility, regardless of whether they have paid to hold a bed, the facility is not required to discharge the resident
• If a resident is discharged from a facility, however, the facility must permit the resident to return to the first available semi-private bed when (i) the resident continues to qualify for Medicaid, (ii) the resident requires nursing-level care and (iii) the facility is able to provide appropriate care for the resident.
o A resident may be discharged from the facility for many reasons including, but not limited to, the resident’s failure to pay for a bed-hold or when the bed-hold period expires. Facilities must follow applicable regulations and procedures when discharging a resident.
The IHCA encourages facilities to carefully review their bed-hold policies to ensure compliance with current law and regulation. The above guidance is not intended to be specific legal advice and facilities should seek independent legal counsel when developing facility-specific policies. The IHCA is able to assist facilities find legal counsel. Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001.
IHCA thanks Randy Fearnow and Susan Ziel of Krieg DeVault, LLP for contributions to this article.
IHCA continues to field questions from members regarding facility-level impacts of the decision by the Indiana Office of Medicaid Policy and Planning (“OMPP”) to eliminate reimbursement for bed-hold days. The elimination of reimbursement for bed-holds was effective February 1, 2011, (for a copy of this bulletin, click here) and the Indiana Medicaid State Plan will be amended in the coming months to finalize elimination of reimbursement. OMPP has also posted, and periodically updated, a news summary on IndianaMedicaid.com that discusses the impact of the reimbursement change on Indiana’s long term care facilities and their residents (Click here for the news summary).
More recently, requirements for long term care facilities to maintain updated bed-hold policies were discussed during a panel presentation at the 2011 IHCA Convention & Expo in May. In addition to the above OMPP-issued materials, the IHCA offers the following points for long term care facilities when developing bed-hold policies.
• Facilities must have a bed-hold policy that states whether or not the facility allows a resident to pay to hold a bed during a leave of absence
o Though facilities are not required to allow a resident to pay to hold a bed, facilities must still have a policy that states whether or not payment for holding a bed is permitted by the facility
• The duration of the bed-hold period must be clearly stated in the facility policy
• Bed-hold policies should state that Indiana Medicaid does not reimburse for bed-holds
• Payment by residents for bed-holds must follow applicable Medicare and Medicaid guidelines regarding billing for non-covered services
• Charges for bed-holds should be set at fair market value and must be equally applied to all residents regardless of payor source
o Facilities may be at risk for Anti-Kickback violations related to improper inducements to government program beneficiaries if charges for bed-holds are not fair market value and equal application of those charges are not maintained. However, an exception to the Anti-Kickback statute may apply in certain circumstances for bed-hold charges that are unable to be collected. This exception depends on certain elements regarding facility advertisements, other relevant services and financial need of the resident.
• If a resident on leave is expected to return to the facility, regardless of whether they have paid to hold a bed, the facility is not required to discharge the resident
• If a resident is discharged from a facility, however, the facility must permit the resident to return to the first available semi-private bed when (i) the resident continues to qualify for Medicaid, (ii) the resident requires nursing-level care and (iii) the facility is able to provide appropriate care for the resident.
o A resident may be discharged from the facility for many reasons including, but not limited to, the resident’s failure to pay for a bed-hold or when the bed-hold period expires. Facilities must follow applicable regulations and procedures when discharging a resident.
The IHCA encourages facilities to carefully review their bed-hold policies to ensure compliance with current law and regulation. The above guidance is not intended to be specific legal advice and facilities should seek independent legal counsel when developing facility-specific policies. The IHCA is able to assist facilities find legal counsel. Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001.
IHCA thanks Randy Fearnow and Susan Ziel of Krieg DeVault, LLP for contributions to this article.
"Employee Screening Choices- Know What to Look For"
by Gregory Dupree, USIS, IHCA Associate Member
Enter “Background Check” into any internet search engine and you will be inundated with companies offering their services. Just remember that the Best Price does not always mean Best Value. You should always consider the reputation of the company you are considering as well as the options offered so that you are better prepared to make an informed choice. You should look for companies that offer:
Multiple Automated Searches- these search options should be far-reaching with the ability to “Deep Dive” for information that is not easily retrieved during casual searches such as Education and Employment records. Social media searches such as Face book and Twitter should also be considered.
Multiple Screening Options- there is no “one size fits all” package when it comes to Background Investigations. You should be able to make your selection based on need (ala carte) not just on what is offered. That way you don’t end up paying for what isn’t necessary. The best way to do this is to classify employee positions based on internal security levels. The higher the security level, the more extensive your Investigation should be.
In-Person Interviews- this is the best (and sometimes most expensive) option for getting the most complete and accurate picture of an individual. You should always have this option available to you especially for high profile positions. A dynamic Face to Face interview always has the potential to garner unsolicited but important information.
A final thought to consider is that existing staff should periodically be re-investigated (check with HR about this). Even the smallest life changing event can sometimes alter a currents employee’s character. Remember, hiring and maintaining a good staff requires eternal vigilance.
Gregory O. DuPree is a Program Manager for Health Care and Pharma Solutions for USIS, the largest Background Investigations Company in the United States. He has over 15 years experience in conducting Federal and Commercial Investigations. Greg can be reached at: Gregory.dupree@usis.com. USIS is an Associate member of IHCA and conducts Investigations, Audits and Site Visits in the Federal, Health Care and Pharma arena.
Enter “Background Check” into any internet search engine and you will be inundated with companies offering their services. Just remember that the Best Price does not always mean Best Value. You should always consider the reputation of the company you are considering as well as the options offered so that you are better prepared to make an informed choice. You should look for companies that offer:
Multiple Automated Searches- these search options should be far-reaching with the ability to “Deep Dive” for information that is not easily retrieved during casual searches such as Education and Employment records. Social media searches such as Face book and Twitter should also be considered.
Multiple Screening Options- there is no “one size fits all” package when it comes to Background Investigations. You should be able to make your selection based on need (ala carte) not just on what is offered. That way you don’t end up paying for what isn’t necessary. The best way to do this is to classify employee positions based on internal security levels. The higher the security level, the more extensive your Investigation should be.
In-Person Interviews- this is the best (and sometimes most expensive) option for getting the most complete and accurate picture of an individual. You should always have this option available to you especially for high profile positions. A dynamic Face to Face interview always has the potential to garner unsolicited but important information.
A final thought to consider is that existing staff should periodically be re-investigated (check with HR about this). Even the smallest life changing event can sometimes alter a currents employee’s character. Remember, hiring and maintaining a good staff requires eternal vigilance.
Gregory O. DuPree is a Program Manager for Health Care and Pharma Solutions for USIS, the largest Background Investigations Company in the United States. He has over 15 years experience in conducting Federal and Commercial Investigations. Greg can be reached at: Gregory.dupree@usis.com. USIS is an Associate member of IHCA and conducts Investigations, Audits and Site Visits in the Federal, Health Care and Pharma arena.
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