IHCA
The Centers for Medicare & Medicaid Services (CMS) issued its Skilled Nursing Facility Prospective Payment System (SNF PPS) Final Rule for FY 2012 this afternoon. The American Health Care Association (AHCA) is conducting an in-depth analysis of the final rule, but AHCA's initial review shows cause for concern and extreme disappointment. The rule ignores a unified message from members, caregivers, lawmakers and stakeholders to find a responsible solution to Medicare payments.
Similar to what was first proposed by CMS in late April, the agency will cut Medicare payments by 11.1 percent starting October 1, totaling $3.87 billion. As you know, these reductions are an attempt to return the Medicare system back to budget neutrality for CMS after implementing RUG-IV and MDS 3.0.
CMS also implemented modifications to group therapy and to Change of Therapy (COT) and End of Therapy (EOT) Other Medicare Required Assessments (OMRAs), virtually without any modification from the proposed rule.
Unfortunately, CMS has disregarded AHCA's sound and reasonable approach to implement modest reductions to SNF payments over multiple years. AHCA's proposal would have protected long term care for seniors, while also achieving the government's goal of a budget-neutral payment system. CMS' action also failed to acknowledge the tens of thousands of letters, emails, and phone calls all of you made to let the agency know how damaging such a drastic proposal would be to the profession and the economy.
These are only the initial findings, and the AHCA team is combing through the 300 plus page final rule. But AHCA have already issued a strongly-worded statement demonstrating its disappointment with CMS for issuing such irresponsible public policy. In the coming days, AHCA will provide an overview and let you know what this means for the Association and the profession. But one thing is certain - AHCA will continue to work with CMS and lawmakers on Capitol Hill to implement regulations and policies that are fair to all involved.
Please keep watch for more detailed information very soon. If you have any questions, please contact Elise Smith, esmith@ahca.org, or Bill Hartung, whartung@ahca.org.
Tuesday, August 2, 2011
Monday, August 1, 2011
Accountable Care Organizations
By Ellen Ferringer, CPA, CAPPM, Katz, Sapper & Miller, IHCA Associate Member
The face of healthcare is changing. "Accountable care organization" is becoming a common term in the industry. What exactly is an accountable care organization? On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act, which empowers the Secretary of Health and Human Services to create a shared savings program to promote accountability of patient care through Accountable Care Organizations (ACO). As defined by the Centers for Medicare and Medicaid Services (CMS), an ACO is an "organization of healthcare providers that agrees to be accountable for quality, cost and overall care of Medicare beneficiaries who are enrolled in the traditional fee-for-service program who are assigned to it.” Ultimately, Medicare is trying to create an incentive program to reduce its costs while increasing the quality of care provided to patients.
The regulations regarding ACOs are still in proposed form and 427 pages in length. At a very high level, these proposed regulations provide the following requirements of ACOs:
• Provide care for at least 5,000 Medicare beneficiaries (based on their primary care physician)
• Participate in the program for three years, beginning Jan. 1, 2012
• Self-report 65 quality measures to the CMS
• Meet various anti-trust regulations
Under the proposed rule, Medicare would continue to pay healthcare providers for specific services under the Medicare payment systems. The ACO would then receive a share of the cost savings based on their Medicare patient population spending compared to benchmarks determined by CMS. The concept is that by better coordinating patient care between the primary care physicians and the specialists, there will be more information sharing and quality of service will increase, thus reducing costs.
Currently, many physician groups and hospitals are weighing the pros and cons of forming an ACO. Included in this mix are also long-term care facilities. Since they play an important role in keeping hospital readmissions down, long-term care facilities appear to be a perfect partner to hospitals and physicians. CMS estimates there will be 75 to 150 ACOs formed by Jan. 1, 2012. Even with this relatively small number, a huge change in patient care is expected as a result of this Act.
Ellen Ferringer is a director in Katz, Sapper & Miller’s Healthcare Resources Group. For more information, contact Ellen at 317.580.2013 or eferringer@ksmcpa.com.
The face of healthcare is changing. "Accountable care organization" is becoming a common term in the industry. What exactly is an accountable care organization? On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act, which empowers the Secretary of Health and Human Services to create a shared savings program to promote accountability of patient care through Accountable Care Organizations (ACO). As defined by the Centers for Medicare and Medicaid Services (CMS), an ACO is an "organization of healthcare providers that agrees to be accountable for quality, cost and overall care of Medicare beneficiaries who are enrolled in the traditional fee-for-service program who are assigned to it.” Ultimately, Medicare is trying to create an incentive program to reduce its costs while increasing the quality of care provided to patients.
The regulations regarding ACOs are still in proposed form and 427 pages in length. At a very high level, these proposed regulations provide the following requirements of ACOs:
• Provide care for at least 5,000 Medicare beneficiaries (based on their primary care physician)
• Participate in the program for three years, beginning Jan. 1, 2012
• Self-report 65 quality measures to the CMS
• Meet various anti-trust regulations
Under the proposed rule, Medicare would continue to pay healthcare providers for specific services under the Medicare payment systems. The ACO would then receive a share of the cost savings based on their Medicare patient population spending compared to benchmarks determined by CMS. The concept is that by better coordinating patient care between the primary care physicians and the specialists, there will be more information sharing and quality of service will increase, thus reducing costs.
Currently, many physician groups and hospitals are weighing the pros and cons of forming an ACO. Included in this mix are also long-term care facilities. Since they play an important role in keeping hospital readmissions down, long-term care facilities appear to be a perfect partner to hospitals and physicians. CMS estimates there will be 75 to 150 ACOs formed by Jan. 1, 2012. Even with this relatively small number, a huge change in patient care is expected as a result of this Act.
Ellen Ferringer is a director in Katz, Sapper & Miller’s Healthcare Resources Group. For more information, contact Ellen at 317.580.2013 or eferringer@ksmcpa.com.
DOL Issues Bulletin Offering Temporary Solution For Minors Operating Lifts
AHCA/NCAL has been working with the U. S. Department of Labor, Wage and Hour Division (WHD), and State Executives Patti Cullen (MN), Tom Moore (WI), and Shelly Peterson (ND) to obtain clarification to the Child Labor Regulations, Orders and Statements of Interpretation: Final Rule, released on May 20, 2010 that essentially prohibits individuals under 18 years of age from using mechanical lifts in healthcare facilities. View the July 2010 Fact Sheet # 52—The Employment of Youth in the Health Care Industry here.
After a year of discussion, WHD has finally released a Field Assistance Bulletin 2011-3, which states: "While continuing its review of this issue … WHD will exercise its enforcement discretion, and not assert child labor violations involving 16- and 17-year-olds who assist a trained adult worker [someone 18 or older] in the operation of floor-based vertical powered patient/resident lift devices, ceiling-mounted vertical powered patient/resident lift devices, and powered sit-to-stand patient/resident lift devices (lifting devices);" as long as the following conditions are met:
After a year of discussion, WHD has finally released a Field Assistance Bulletin 2011-3, which states: "While continuing its review of this issue … WHD will exercise its enforcement discretion, and not assert child labor violations involving 16- and 17-year-olds who assist a trained adult worker [someone 18 or older] in the operation of floor-based vertical powered patient/resident lift devices, ceiling-mounted vertical powered patient/resident lift devices, and powered sit-to-stand patient/resident lift devices (lifting devices);" as long as the following conditions are met:
- The child has completed at least the 75 clock hours (if not more) of nurse aide training required under OBRA.
- The child is assisting in the use of the lifting device as a junior member of at least a two-person team that is headed by someone 18 or older.
- As a junior member, the child can set up, move, position, and secure the lifting device. The child may assist a trained adult employee in attaching slings to and unattaching slings from the lifting device prior to and after the lift is completed. The child also may assist an adult in operating the controls. The child may act as a spotter/observer and may position items such as a chair, bed, etc., for the person being lifted.
- As a junior member, the child may not independently engage in "hands on" physical contact with the patient during the lifting process; but instead can only assist in these "hands on" activities when assisting a trained adult.
- The child is not injured while operating or assisting.
- The employer has provided to each child who will assist in the operation of a lifting device a copy of this bulletin.
Friday, July 1, 2011
Reporting of Crimes in Long Term Care Facilities
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.
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.
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.
Wednesday, June 29, 2011
Indiana Medicaid Estate Recovery – Indiana Ready to Get More Aggressive?
by Sean Fahey and Todd Selby, Hall Render Killian Heath & Lyman, P.C., IHCA Associate Member
Recently, the Indiana State Department of Administration, on behalf of Indiana's Family and Social Services Administration (FSSA), posted a Request for Proposals to contract with multiple attorneys for Indiana Medicaid estate recovery. The Request for Proposals is at http://www.in.gov/idoa/proc/bids/rfp-11-84/. It appears Indiana plans to get much more aggressive in Medicaid estate recovery, including opening probate estates. Contracts are scheduled to be awarded September 19, 2011.
The FSSA wants the attorneys selected to perform a broad range of responsibilities including preparing petitions to open probate estates as creditors, filing claims in probate estates, filing liens on real property, and pursuing non-probate assets. Indiana reportedly recovered over $9,700,000 from recipients in 2007.
The Indiana Medicaid estate recovery statute is found at I.C. Sec. 12-15-9-1. Indiana's Medicaid estate recovery laws allow FSSA to collect from probate estate assets, as well as from the non-probate estate assets of a deceased recipient. There can be no estate recovery while a surviving spouse or minor is living. Indiana also has lien laws that allow Medicaid to place liens on real estate owned by a Medicaid recipient. Also, in the event it does not file a lien on real estate held by a recipient, Medicaid can within five (5) months of the date of death open an estate administration, file its claim and force the sale of the real property to pay its claim.
During the 2010-11 Indiana legislative session, FSSA attempted to exempt Medicaid estate claims from I.C. Sec. 29-1-7-15.1(b), which provides that real estate in an decedent's estate cannot be sold to pay claims if an estate is not opened within five (5) months after death. Indiana attorneys testified against this provision and it was removed from legislation passed in the 2010-11 Indiana legislative session. However, the legislature referred this issue to the 2011 summer Probate Code Study Commission to study “how the probate code should be amended to permit the sale of real estate located in Indiana to satisfy a claim by ... [Medicaid, the U.S., or a state or subdivision of the state] against a decedent regardless of whether letters testamentary or of administration are issued within five (5) months of the decedent’s death.” Section 22, Senate Enrolled Act 331.
Long term care facilities should keep Indiana's renewed estate recovery focus in mind as they consider collecting their receivables that are due from deceased residents. Facilities will want to ensure that they have settled payment issues before a resident dies, as Medicaid will be more active in opening estates and asserting their priority claim.
If you have questions about this matter, please contact Todd J. Selby at (317) 977-1440 or Sean Fahey at (317) 977-1472 at Hall Render Killian Heath & Lyman, P.C.
Recently, the Indiana State Department of Administration, on behalf of Indiana's Family and Social Services Administration (FSSA), posted a Request for Proposals to contract with multiple attorneys for Indiana Medicaid estate recovery. The Request for Proposals is at http://www.in.gov/idoa/proc/bids/rfp-11-84/. It appears Indiana plans to get much more aggressive in Medicaid estate recovery, including opening probate estates. Contracts are scheduled to be awarded September 19, 2011.
The FSSA wants the attorneys selected to perform a broad range of responsibilities including preparing petitions to open probate estates as creditors, filing claims in probate estates, filing liens on real property, and pursuing non-probate assets. Indiana reportedly recovered over $9,700,000 from recipients in 2007.
The Indiana Medicaid estate recovery statute is found at I.C. Sec. 12-15-9-1. Indiana's Medicaid estate recovery laws allow FSSA to collect from probate estate assets, as well as from the non-probate estate assets of a deceased recipient. There can be no estate recovery while a surviving spouse or minor is living. Indiana also has lien laws that allow Medicaid to place liens on real estate owned by a Medicaid recipient. Also, in the event it does not file a lien on real estate held by a recipient, Medicaid can within five (5) months of the date of death open an estate administration, file its claim and force the sale of the real property to pay its claim.
During the 2010-11 Indiana legislative session, FSSA attempted to exempt Medicaid estate claims from I.C. Sec. 29-1-7-15.1(b), which provides that real estate in an decedent's estate cannot be sold to pay claims if an estate is not opened within five (5) months after death. Indiana attorneys testified against this provision and it was removed from legislation passed in the 2010-11 Indiana legislative session. However, the legislature referred this issue to the 2011 summer Probate Code Study Commission to study “how the probate code should be amended to permit the sale of real estate located in Indiana to satisfy a claim by ... [Medicaid, the U.S., or a state or subdivision of the state] against a decedent regardless of whether letters testamentary or of administration are issued within five (5) months of the decedent’s death.” Section 22, Senate Enrolled Act 331.
Long term care facilities should keep Indiana's renewed estate recovery focus in mind as they consider collecting their receivables that are due from deceased residents. Facilities will want to ensure that they have settled payment issues before a resident dies, as Medicaid will be more active in opening estates and asserting their priority claim.
If you have questions about this matter, please contact Todd J. Selby at (317) 977-1440 or Sean Fahey at (317) 977-1472 at Hall Render Killian Heath & Lyman, P.C.
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