Changes in Interpretive Guidelines for the Use of Feeding Tubes

by David Bufford, Hall Render, IHCA Associate Member

CMS released a Survey & Certification letter in September announcing revisions to surveyor guidance related to the use of feeding tubes in facilities, effective November 30, 2011. The revisions include the deletion of tag F-321, which addressed not utilizing a feeding tube unless it was unavoidable, and rolled the interpretive guidance for that tag into tag F-322.

The guidance for tag F-322 has been revised to provide clarification to nursing home surveyors when determining compliance with the regulatory requirements for feeding tubes. The actual federal regulation at issue, 42 CFR 483.25(g), has not changed. The guidance now better reflects the intent of the regulation to ensure the feeding tube is utilized only after an adequate assessment determines that the resident's clinical condition makes the intervention medically necessary. The feeding tube must be utilized in accordance with current clinical standards of practice and services are provided to prevent complications to the extent possible. Additionally, the facility must provide services to restore normal eating skills, to the extent possible.

The new guidance will address identify the key elements for tag F-322 that determine the level of severity. Severity Level 1 is not applicable to this tag.

CMS Provides Guidance for Nursing Facility Gardens

by David Bufford, Hall Render, IHCA Associate Member

CMS released a Survey & Certification letter in September providing guidance for nursing homes that desire to utilize on-site gardens to provide fresh produce for residents. After numerous inquiries from facilities, CMS confirmed that residents can benefit from home-grown foods as long as food-borne illness dangers are mitigated to the greatest extent possible.

The facility should follow safe food handling practices once foods are harvested and brought into the kitchen for preparation. Additionally, the facility must have in place policies and procedures for maintaining the garden. Such actions will permit the facility to remain in compliance with 42 CFR 483.35(i), Sanitary Conditions, and the related survey tag, F371.

In the event of an outbreak of a food-borne illness, surveyors will request the facility’s policies and procedures related to the garden if the facility’s main food source has been ruled out as the cause. The facility must immediately report any outbreak of a food-borne illness, regardless of the cause, to the local health department. The facility must also comply with any local or state requirements related to growing food on-site.

Medicaid RAC Rule Finalized

Section 6411 of the Patient Protection and Affordable Care Act (PPACA) expanded Federal efforts in the auditing and health care fraud arena by requiring that the Recovery Audit Contractor (RAC) program, which had previously only applied to Medicare, be applied to Medicaid as well. The Medicaid RAC programs will be operated by each individual State, but will be jointly funded by the State and the Federal government.
On September 16, 2001, the Centers for Medicare and Medicaid Services finalized the rule that will implement the health care fraud and abuse program. The Final Rule "provides guidance to States related to Federal/State funding of State start-up, operation and maintenance costs of Medicaid Recovery Audit Contractors (Medicaid RACs) and the payment methodology for State payments to Medicaid RACs." While the framework for the Medicaid RAC program was established in the corresponding proposed rule, the Final Rule sets forth the following important points:

· States may exclude Medicaid managed care claims from review by Medicaid RACs

· States must coordinate the recovery audit efforts of their Medicaid RACs with other auditing entities

· States must set limits on the number and frequency of medical records to be reviewed by the Medicaid RACs subject to requests for exceptions made by the RACs

· RACs must not review claims that are older than 3 years from the date of the claim, unless it receives approval from the State

· RACs should not audit claims that have already been audited or that are currently being audited by another entity

· If a provider appeals a Medicaid RAC overpayment determination and the determination is reversed, at any level, then the Medicaid RAC must return its contingency within a reasonable timeframe as prescribed by the State

· States must adequately incentivize the detection of underpayments and States must notify providers of underpayments that are identified by the Medicaid RACs

· States must provide appeal rights under State law or administrative procedures to Medicaid providers that seek review of an adverse Medicaid RAC determination

The Final Rule becomes effective on January 1, 2012.