CMS will not require independent LTC pharmacists

by Ruta Kadonoff, Vice President, Quality & Regulatory Affairs, American Health Care Association

In a welcome response to comments submitted by AHCA and other stakeholder groups, The Centers for Medicare and Medicaid Services (CMS) reported on April 2 that they will not move forward in the immediate term with a proposal to require LTC facilities to hire independent consultant pharmacists, while reserving the possibility of doing so in the future if reductions in “inappropriate prescribing,” including the off-label use of antipsychotic drugs, are not observed. This decision was reflected in a final rule with comment period for the Medicare Advantage and prescription drug benefits programs for Calendar Year 2013.

In an October, 2011 Federal Register Notice, CMS discussed a potential new requirement for LTC consultant pharmacists to be independent of any affiliations with the facility's pharmacies, pharmaceutical manufacturers and distributors, or any affiliates of these entities. CMS reasoned that such a requirement was necessary to ensure that consultant pharmacist decisions were objective, unbiased, and in the best interest of nursing home residents. CMS now indicates that, “From comments received on this issue, we now believe a more targeted and less disruptive approach is warranted.”

In December 2011, AHCA submitted comments to CMS on this proposal, which the AHCA Pharmacy Workgroup was instrumental in shaping. In those comments, AHCA agreed that it is important to minimize the potential for a conflict of interest on the part of the consultant pharmacist and argued that current regulations and Guidance to Surveyors provides adequate support for CMS to deal with potential conflicts. AHCA also provided 6 alternative suggestions to minimize potential conflict of interest, provided data from the one state that requires an independent pharmacist that suggests “independence” does not necessarily result in reduction of use of antipsychotics and listed (with supporting information) advantages to having the consultant pharmacist associated with the dispensing pharmacy.

CMS is now soliciting additional comments to help determine a more comprehensive approach to eliminate overprescribing and reduce the use of antipsychotic drugs in LTC. CMS also strongly encourages the LTC industry to voluntarily adopt the following changes to increase transparency:

• Separate LTC consultant contracting for dispensing and other pharmacy services;

• Pay fair market rates for consultant pharmacist services; and

• Disclose to LTC facilities any affiliations of consultant pharmacists that pose potential conflicts of interest (this may include the execution of consultant pharmacist integrity agreements.)

CMS adds that if the expected improvements in prescribing behavior and antipsychotic drug use do not occur through voluntary practice changes, they will use a future notice and comment rulemaking to propose requirements to comprehensively address these concerns.

The AHCA/NCAL Quality Initiative

Long term and post-acute care leadership from the American Health Care Association and the National Center for Assisted Living (AHCA/NCAL) have announced a multi-year initiative to meet new quality goals, including reducing hospital readmission rates and improving staff retention.

The Quality Initiative focuses on four goals designed to improve quality of care in America's skilled nursing centers and assisted living communities.

1. Reduce Hospital Readmissions: By March 2015, reduce the number of hospital readmissions within 30 days during a SNF stay by 15 percent.
2. Increase Staff Stability: By March 2015, reduce turnover among nursing staff (RN, LVN, CNA) by 15 percent.
3. Reduce the Off-Label Use of Antipsychotics: By December 2012, reduce the off-label use of antipsychotics by 15 percent.
4. Increase Customer Satisfaction: By March 2015, increase the number of customers who would recommend the facility to others up to 90 percent.
(Please note: NCAL is currently developing its specific measures and targets.)

The Quality Initiative goals have been defined for the next three years to foster sustainable change and set specific benchmarks for the long term and post-acute care profession to build upon. AHCA/NCAL is challenging its membership to hold itself accountable in ensuring a higher quality, lower cost health care system.

"The quality initiatives goals set forth by the AHCA compliment our efforts in Indiana as we move towards the most robust value-based purchasing program in the country," said Scott Tittle, President of the Indiana Health Care Association. "The combined focus of these measures and those in the VBP program relating to reducing employee turnover, improving staff retention, and achieving high marks in employee, resident, and family satisfaction should result in improving the experiences of residents and staff in our member facilities.  Indiana members want to thank the AHCA for taking this very important step and being the leader nationally in improving resident care."

Reaching the targets set in each goal in the Quality Initiative will improve the health of thousands of seniors and people with disabilities, while at the same time driving down health care costs. When AHCA members achieve the goal of reducing hospital readmissions by 15 percent, 26,000 fewer people will go back to the hospital each year. Improving staff satisfaction will result in more consistent staffing in long term and post-acute care settings, keeping more than 615,000 in their jobs.  Less off-label use of antipsychotic medications will help patients avoid the health complications that come with the drugs. More satisfied residents and families means that AHCA member facilities are fulfilling the mission of providing quality care.

AHCA/NCAL has created a volunteer-led Quality Cabinet to coordinate and monitor the progress of the Quality Initiative. More information about the Initiative is available online at qualityinitiative.ahcancal.org.

GAO Issues Study on Implementation of the Quality Indicator Survey

by Lyn Bentley, AHCA Senior Director of Regulatory Services

This week the GAO issued a study:  Nursing Home Quality: CMS Should Improve Efforts to Monitor Implementation of the Quality Indicator Survey.  The study states that CMS has not done an adequate job of monitoring the implementation of the Quality Indicator Survey (QIS).   While CMS has taken some steps to monitor implementation progress of the QIS, the monitoring has not been systematic nor is it consistent with federal internal control standards.

Of particular interest is the GAO position that “In the case of the QIS-based routine survey process, information collected through performance goals and measures could help CMS routinely monitor the extent to which the objectives of the QIS are being achieved.  This information could also inform future efforts by CMS to modify and improve the QIS process as needed.”  CMS agreed with the need for certain performance measures – particularly with regard to examining the effect of the QIS on surveyor consistency.

GAO Recommendations to CMS
• Develop a means – such as performance goals and measures – to routinely monitor the extent to which CMS is making progress in meeting the objectives established for the QIS;

• Develop and implement a systematic methodology to track state survey agencies’ progress with implementation activities; and

• Develop and implement a systematic method for obtaining, compiling, and sharing information from state survey agencies about their implementation experiences.

CMS Responses to the GAO Recommendations
CMS concurred with these recommendations and intends to:

• Establish new or modify existing measures or processes to more effectively monitor CMS’s progress towards meeting QIS goals and objectives.  CMS is already reviewing available data related to the QIS (for example, data on survey workload, survey deficiencies, and the number of surveys performed) to more effectively monitor the QIS and guide improvement efforts.

• Formalize the data collection method used to track states’ progress with QIS implementation activities.  CMS will institute an automated process to obtain updated information on states’ progress with training surveyors which, when combined with existing data, could provide a more accurate assessment of implementation activities in any state.

• Enhance existing and add new methods of sharing information on the QIS with states.  CMS plans to expand existing information sharing opportunities (for example, quarterly calls and presentations at annual meetings) to be available to all states, not just those in the process of implementing the QIS.  CMS is also considering using a web-based capability to facilitate sharing information on QIS implementation.

OIG issues memorandum report on Nationawide Program for Background Checks

In January, the Department of Health and Human Services Office of the Inspector General (OIG) issued a report entitled Nationwide Program for National and State Background Checks for Long-Term-Care Employees – Results of Long—Term-Care Provider Administrator Survey. As you may recall, this nationwide program is a voluntary program identified in and funded by the Affordable Care Act provides grants to states to implement programs to conduct federal background checks on prospective long-term-care employees. According to the OIG, the purpose of the survey was to collect baseline data on current practices regarding conducting background checks on potential employees and the effects on the long-term-care workforce.

This report focused on the impact national background checks have on the availability and quality of long-term-care employees. To determine the impact, a sample of long-term-care administrators in states participating in this program were surveyed. According to the OIG, the survey results indicate that 81 percent of the administrators had a sufficient pool of applicants for job vacancies. Those administrators who had an insufficient pool of applicants “cited prospective employees’ preferences for working in health care settings other than long-term care, low pay, and lack of desire to work in a rural area.”

Based on the timeline for development of this report, it is important to note that administrators from 10 of the 17 states that are currently participating in this program were surveyed. It is possible that results will differ when more states are included in the survey.

IHCA Chooses Silverchair Learning Systems as Its Online Training Partner

IHCA has chosen Silverchair Learning Systems as its partner to provide effective online training solutions that will help improve operations and reduce costs to members.

“We are very excited about the vast resources and experience that Silverchair will bring to our members through high-quality and cutting-edge online training,” said Scott Tittle, President of IHCA.

This partnership gives IHCA members access to a highly effective and affordable turn-key learning program that delivers, tracks, and reports on educational programs for their entire organization. Silverchair’s training program provides a complete curriculum of in-service and regulatory courses required by CMS and OSHA, as well as important resident care topics that specifically address the needs of senior care providers and their employees. The program can also be customized to include material specific to an organization.

“As a native Hoosier, I’m especially glad to have the opportunity to partner back home again in Indiana,” said Mike Mutka, President and COO of Silverchair Learning Systems. “We are excited to see how Silverchair will enhance the training of members at the more than 200 facilities that are partnered with IHCA.”

IHCA joins eight other American Health Care Association state chapters who have chosen Silverchair as their online learning partner. IHCA has negotiated exclusive pricing with Silverchair, making the learning management and online training system available to its members at a substantial discount.

Please visit the IHCA website for details on free courses and other benefits of this new partnership!

ISDH Establishes a New Independent Informal Dispute Resolution Process for Long Term Care Facilities

by Zach Cattell, JD, IHCA General Counsel

On December 30, 2011 the ISDH issued a new ISDH Division of Long Term Care Policy and Procedure implementing the Federal requirement to establish an Independent Informal Dispute Resolution (IIDR) process for long term care facilities. The new IIDR process has been established to provide long term care facilities an opportunity, without cost to facilities, for an entity independent of the State Survey Agency to review certain aspects of survey deficiencies.

The ISDH IIDR Policy and Procedure includes two attachments, one with contact information for the ISDH IIDR lead and one with a timeline of the IIDR process (click here for the documents: IIDR Policy and Procedure; Attachment A – Contact Information; Attachment B – Timeline). The ISDH has also established a Informal Dispute Resolution Information Center at http://www.in.gov/isdh/25304.htm.

Applicability of the New IIDR Process

The new IIDR process is an option for facilities to elect if the facility is the subject of a Civil Money Penalty (CMP) that may be collected and placed in an escrow account. Until further notice from Federal and State regulators only those deficiencies that cite actual harm or immediate jeopardy (G or above) will be subject to the CMP collection and escrow and only those deficiencies will trigger the opportunity for IIDR. Any CMPs imposed for D, E and F deficiencies will be collected under the current informal dispute resolution process run by the ISDH and are not subject to the new IIDR process.

In the December 30, 2011 ISDH Newsletter, the ISDH provided the following key components to the ISDH-developed IIDR process:

1. The new ISDH Informal Dispute Resolution Policy and Procedure is effective January 1, 2012.

2. The ISDH will continue to offer traditional informal dispute resolution for all licensing and certification surveys conducted at comprehensive care facilities. The "informal dispute resolution" process refers to the review process conducted by ISDH Long Term Care Supervisors. The informal dispute resolution process may be either a paper review or a face-to-face review as requested by the facility. There is no fee to the facility for the informal dispute resolution process.

3. Effective January 1, 2012, an independent informal dispute resolution process is available to skilled nursing facilities (SNF) and nursing facilities (NF) that meet certain requirements related to a civil money penalty (CMP) imposed by the Centers for Medicare and Medicaid Services (CMS). The process is conducted by a CMS-approved "independent entity" that has contracted with the ISDH to provide this service. There is no fee to the facility for the independent informal dispute resolution process.

4. The Independent Informal Dispute Resolution process will only apply to standard (annual) and/or complaint surveys begun on or after January 1, 2012, that initiate an enforcement action for which a civil money penalty is imposed and subject to being placed in escrow. Any revisit survey conducted on or after January 1, 2012, that is associated with standard or complaint surveys begun prior to January 1, 2012, will not be subject to the Independent Informal Dispute Resolution Process.

5. Only civil money penalties which are imposed based on a deficiency or deficiencies cited for actual harm or immediate jeopardy to resident health or safety (i.e., at a scope and severity level of G or above) will be subject to civil money penalty collection and escrow provisions. Those deficiencies which result in the imposition of such civil money penalties will trigger a facility's opportunity to participate in the independent informal dispute resolution process. CMS will provide notice of the opportunity to participate in the independent informal dispute resolution process. The facility will request an independent informal dispute resolution through the ISDH.

6. The ISDH will be contracting with an independent entity for the independent informal dispute resolution process. The ISDH will provide contact and process information for that entity when a facility requests the independent process.

Independent Informal Dispute Resolution Entity

As noted by the ISDH in item #6 above and in the December 30, 2011 ISDH Newsletter, the State has not yet awarded a contract as proposals to the State were due on January 5, 2012. The ISDH believes that the independent entity will be in place in time for use by facilities.

Additional Considerations

The new IIDR process, with its requirements and timing limitations, is untested in Indiana or anywhere else in the country and there will undoubtedly be questions that arise. Due to the timing limitations (the process must be completed within 60 days from a facility’s request for IIDR), the new IIDR process for Indiana facilities will be entirely paper-based and no in-person meetings will occur. For the traditional ISDH-led informal dispute resolution process, a facility can choose either paper-based review or in-person review.

Because the ISDH will continue to administer the ISDH-led informal dispute resolution process and because facilities will not be able to go through both the ISDH-led process and the new IIDR process for the same deficiencies, the ISDH will not schedule an ISDH-led informal dispute resolution process, if requested, until a determination of whether CMP will be imposed that can trigger a facility’s right to the new IIDR. It will be key that a facility submit all supporting documentation to the ISDH through the ISDH Survey Report System when electing the ISDH-led process as requests for that process will not be considered until all documentation is submitted. Once it is known whether CMP is to be imposed for a deficiency, then a facility can choose either the ISDH-led process or the new IIDR process.

In addition, facilities and their counsel should consider how the IIDR process will impact any decision to request or waive a formal hearing on cited deficiencies. CMS and ISDH have been clear that the new IIDR process is not and will not be used to delay timing of the formal hearing process. Request for a formal hearing will likely have to occur near the same time that an IIDR is requested due to timing requirements.

IHCA will continue to monitor the development of Indiana’s IIDR process. For additional information please contact Zach Cattell at zcattell@ihca.org or 317-616-9001.

Congress Agrees on Two-Month Extension to Payroll Tax Cut and Extended Unemployment Compensation: "Doc Fix" and Outpatient Therapy Caps Exceptions Process Receive Similar Reprieve

The U.S. Congress passed a two-month payroll tax cut extension just eight days before its scheduled January 1, 2012 expiration after House Republicans dropped their objections under growing political pressure. President Obama signed the extension, guaranteeing that 160 million workers will continue to receive a two percent cut in their social security payroll taxes. Also included in the package was a freeze in physician Medicare payments, which avoided a massive 27.4% cut set for January 1, 2012; an extension of expanded unemployment compensation benefits; and an extension of the Medicare Part B outpatient therapy cap exceptions process under which SNFs and other providers can avoid therapy caps for certain patient diagnoses.

Congress will use the two-month reprieve to try to come to a full year agreement on the “extenders” package. The Senate and the President had supported a one-year extension, but the House had originally balked at the idea, accusing them of “kicking the can down the road” and failing to enact any long range deficit reduction legislation. A one or two-year extension will hinge on the ability of Congress to come to an agreement about how to pay for the various program extensions. Congress has appointed a conference committee to resolve the controversy. The committee has until March 1 to decide what to fix, for how long, and how to pay for it. None of the conferees named to date are from Indiana.

The original House version of the “extenders” package had called for a cut in federal reimbursement for public and private Medicare “bad debts” to 55 percent. Such a cut would have had a huge impact in states, like Indiana, whose Medicaid programs do not reimburse SNFs for Medicare Part A co-payments. We understand in this two month review, our industry is once again in Congress’ sights as potential “pay for” solution. Our national affiliate, the American Health Care Association, is following the issue closely and advocating for alternative funding sources such as savings from reduced re-hospitalizations.

We will bring you more information on the issue as it becomes available. Meanwhile, members with questions may call (317-616-9031) or email IHCA President Scott Tittle at stittle@ihca.org for additional information.