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Volume VI, No. 2 Corporate
Compliance Insights from Our Experience. As most of you are aware, our firm has been working with nursing facilities in establishing corporate compliance programs for the last several years. In light of the OIG's admonition that all nursing homes should have a corporate compliance program in its final guidance to the industry in March, many more homes are now considering the adoption of a program. For those of you who are beginning to think about a formal compliance program, we wish to point out a few things to consider based on our experience:
Whistleblowers! The Department of Justice (DOJ) reported that more than 3,000 whistleblower suits have been filed since 1986, with almost half of the filings relating to healthcare fraud. The DOJ has recovered more than $3.5 billion, and whistleblowers have been paid more than $550 million as their share of recoveries, with additional awards pending. Exclusion Checking. It is vital that all nursing homes and ICFs-MR check to see whether their employees and contractors are excluded from a federal health care program. Under the law, no payment is to be made for any services provided by an excluded person or entity. In addition, a provider may be fined up to three times the amount that it billed the government and up to $10,000 per claim for services and supplies provided by an excluded person or entity. Our firm website has a link to the exclusion checking sites for the OIG and the General Service Agency for your convenience. How to Prosecute a Nursing Home… In February more than 300 federal and state prosecutors and nursing facility oversight officials from across the country met in Columbia, S.C., to discuss the "nuts and bolts" of investigating and pursuing quality of care cases against eldercare centers. Featuring lectures on "cases against corporate nursing home chains," "obtaining, preserving and handling evidence," and "pursuing criminal quality of care cases," the 3-day, invitation-only meeting was orchestrated by U.S. Assistant Attorney General John T. Bentivoglio. 3-Day Hospital Stay. A fairly old issue may have sparked the Feds' interest again. Recently the OIG conducted an audit of Illinois SNF claims and found that 57 percent of the audited claims lacked the prerequisite 3-day hospital stay. In all of the cases the recipient had been in the hospital for three consecutive days, however, the beneficiary received one or more days of outpatient services through the emergency room or during an observation period, which do not qualify as inpatient hospital days. The facilities in question will have to repay all of the money they were paid for the resident's entire stay. In addition, the SNFs cannot bill the Medicare beneficiaries because, according to the fiscal intermediary, the provider knew or should have known that Medicare would not pay for care. Thus, the provider is financially responsible for the noncovered care, including any deductible and coinsurance. Double Billing. In a recent audit, the OIG found that in over a third of the claims audited Medicare contractors are still making Part B payments to outside suppliers for services that are already included in the PPS payment to the nursing home. You should make sure that your ancillary contracts clearly define the billing responsibilities of each party. Yet Another Way to Prosecute NFs. A Northern California nursing home chain agreed to sell or shut down two of its homes after pleading no contest to felony charges of elder abuse and neglect. The prosecution of Guardian of the North Bay, Inc. marked the first time in the nation that prosecutors have used a criminal indictment as a tool to force a major nursing home chain to clean up its operation. The District Attorney who prosecuted the case, said the federal government could have forced Guardian to shut down or sell all 16 of its facilities if the corporation had been convicted at a trial. The DA's investigation of the case found five deaths that it alleged were at least partly attributable to neglect or abuse. The prosecution relied heavily on the statements of deficiencies issued by the state surveyors in their regulatory surveys. To avoid the upheaval closing would have caused for the 2,000 patients in Guardian facilities, a compromise agreement was reached with the help of the federal Office of the Inspector General. Though the DA said he could also have charged Guardian's corporate officers, he said he chose not to because he ``wanted to focus on the fact that the problems were with the corporation, not individuals.'' For that reason, he did not charge the six nurses and aides involved in an incident of neglect that first attracted his office to the case. As part of the court settlement, Guardian also was placed on probation for four years. The company agreed to pay $120,000 in fines - $20,000 for each of the six felony counts charged - plus $20, 000 to the family of a patient who died at Guardian and a like amount to another patient who suffered severely from substandard care. Guardian had offered $20,000 settlements to all of the patients or their families involved in the eight felonies originally charged. Two accepted the settlements, but the others said they will sue in civil court. Arbitration. In light of the significant increase in lawsuits against long- term care providers, we suggest that you consider the adoption of arbitration language in your admission agreements. Medical Records Release. Our clients are reporting an increasing number of requests for residents medical records by families and their attorneys. Your facility should review your medical record release policies and forms to ensure that you clearly define who may obtain such records and under what circumstances. In our seminars and compliance audits, we continue to see widespread misunderstanding regarding to whom a medical record may be released. LPN & MDS Assessments. According to a recent memorandum from ODH, an LPN may complete the MDS, however, he/she may not complete the Resident Assessment Protocol (RAP) because it requires skills that are beyond the LPN's scope of practice, i.e., the analysis of assessment data. OSHA Inspections. As we have reported through our email alerts, OSHA has stated that all nursing homes with a lost work day injury and illness (LWDII) rate at 14.0 or above will be inspected. According to the new directive, the LWDII rates used to target individual facilities for inspection in 2000 are 1998 rates collected in the agency's 1999 nationwide data initiative survey of approximately 80,000 general industry employers. Thus, facilities who were among those 80,000 employers and reported 1998 LWDII rates of 14.0 or higher should be prepared for an OSHA inspection. We recently sent an email alert to our clients whose names appeared on the OSHA list of facilities targeted for an inspection. Splitting SNF PPS Claims. The following is reproduced from AdminaStar Federal's web site under the News section: As required, Skilled Nursing Facilities must split their claims at the end of their fiscal year. With implementation of the Skilled Nursing Facility Prospective Payment System (SNF PPS), it has become necessary for providers to also split their claims at Medicare's fiscal year end, September 30. Medical Review of SNF PPS Claims. In March of 2000, HCFA published a program memorandum designed to provide instructions for Fiscal Intermediaries (FIs) in conducting medical review of SNF PPS claims. Since Medicare has begun paying SNF's under a PPS system, the methodology of claim review has changed from a review of individualized services to a review of the beneficiary's clinical condition. The program memorandum instructs FIs to first review all supporting medical information to determine whether the beneficiary did indeed meet the SNF level of care requirement. In other words, the FI is to determine whether, based on the supporting documentation, the resident was correctly assigned to the appropriate RUG-III group. If the beneficiary meets the level of care requirement, then the FI is to determine whether the furnished services and the intensity of those services were reasonable and necessary for the beneficiary's condition. In making the determination as to whether coverage was appropriate, the FI may request and consider all available information, including the MDS, the medical records including physician, nursing, and therapy documentation, and the beneficiary's billing history. Finally, if the FI determines either that the claim did not meet the level of care requirement or that the services were medically unnecessary, the FI may then adjust the RUG-III code billed appropriate and deny the claim in whole or in part. Tax Exempt Status. We continue to see nursing facilities unwittingly violating the requirements of their tax exempt status. Home for the Aged tax exempt status is determined by your facility's admission agreement. It does not matter what your policy is, what your course of action has been, nor what your Board resolutions state. The sole determinant is the contract between you and the resident. Thus, you must be certain that your current agreement does not retain the absolute right to discharge a resident for nonpayment. Tax Lien Date Reminder. Under Ohio law, a facility must be licensed as an adult care facility, residential care facility or a nursing facility by the tax lien date (January 1) of the year in which it wishes to claim tax exemption as a home for the aged. This is an important point for those of you with new projects in the works that will require licensure of your new construction. County Homes. Effective July 21, a county or district home may now be licensed as a residential care facility. LPN IV Therapy. Effective July 21, LPNs may now perform certain activities relating to the administration of intravenous therapy without obtaining permission from the Board of Nursing. Medicaid Fiscal Relief. A bill that has been passed by both the House and the Senate and is expected to be signed by the Governor will provide significant financial relief to many NFs. The bill if signed would become effective as law on July 1. Significant components of the bill are:
According to a recent United States Supreme Court decision, Olmstead v. L.C, providers should seek to integrate people with disabilities into the social mainstream, and promote equality of opportunity and individual choice. In Olmstead, two women were voluntarily admitted to a hospital in Atlanta, Georgia for treatment in a psychiatric unit. After a period of confinement, the treatment professionals for each of the women concluded that the women could be cared for appropriately in a community-based program. However, the women continued to remain institutionalized. Subsequently, a lawsuit was filed against state officials, alleging that the State had violated Title II of the Americans with Disabilities Act ("ADA") by failing to place the women in community-based programs once their treating professionals had determined that such a placement was appropriate. The case eventually reached the Supreme Court, where the Court ruled in favor of the plaintiffs. More specifically, the Court held that a state violates the ADA if it fails to provide community placement for an institutionalized individual if:
Although this case is not directly applicable to private parties, as the particular provision of the ADA that was violated applies only to "public entities," it is nevertheless apparent from the opinion that a private party or institution may violate the Rehabilitation Act by acting in the same manner as the state did in this case. The Rehabilitation Act, like the ADA, provides that disabled individuals should be placed in the most integrated setting possible. This Court decision will likely have a profound impact on the ICF-MR industry. Staffing. According to the results of the Ohio Nurses Association's statewide survey, 75.5% of nurses responding said that the time they have available to deliver direct patient care has decreased (the average decrease is 32%) due to "an increase in patient care load." Identity Theft. The Michigan Attorney General announced that thieves are stealing the identities of Michigan nursing home residents, applying for credit in their names and racking up thousands of dollars in debt. The AG's office is investigating several cases of patient identity theft in metro Detroit and western Michigan, as well as instances of stolen credit cards and checks. The AG advises that individuals and health-care facilities need to take precautions to guard patients'private information, especially Social Security numbers. But they also need to guard their mail, particularly credit card solicitations that can be stolen and used to apply for credit. Credit cards, debit cards and checks need to be locked away.
Medicaid Fraud Investigations. Recently, President Clinton signed a law that will permit state Medicaid fraud control units (MFCU's) to investigate alleged abuse even in long-term care facilities that do not participate in the Medicaid program. The newly signed law allows MFCU's the option to investigate complaints of abuse in privately owned facilities, such as assisted living, and ICF's/MR. Prior to the new law, complaints of abuse and neglect at non-Medicaid facilities were investigated by local law enforcement agencies. Distinct Part Requests. Effective June 1, HCFA will follow a new policy with regard to requesting changes in distinct parts. Facilities will now be able to request two changes per year rather than just one (although only one decrease will be allowed per year). In addition, the notice for such changes is reduced from 120 days to 45 days. This change was made effective through
Transmittal 16, modifying the SOM, and Transmittal
364, modifying the SNF Manual. Download these
transmittals from the following sites: www.hcfa.gov/pubforms/transmit/R16SOM.pdf MDS Correction Policy. The start date for facilities to begin the MDS correction policy is May 22, however, the software vendor systems will not be functioning until May 24. The changes to the correction policy include the following:
Additional information on the new MDS correction policy and the draft guidance to providers is available at HCFA's web address: www.hcfa.gov/Medicaid/mds20/mdssoftw.htm.
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