LONG-TERM CARE UPDATE Volume V, No. 3 July 1999 Spotlight: New Survey Procedures The Right to Appeal the Loss of Nurse Aide Training Corporate Compliance OSHA Year 2000 Survey & Enforcement Miscellaneous News RR&G News SPOTLIGHT: New Survey Procedures In our last newsletter, our lead article focused on the proposed new survey procedure changes and enforcement rule changes (regarding CMPs), that were scheduled to take effect July 1 or earlier. Since then, HCFA published final State Operations Manual provisions including new survey procedures and certain new Interpretive Guidelines effective July 1, 1999. ODH conducted training sessions on these provisions in the month of June for facilities. Without repeating the items covered in our last news article, as well as in the training sessions, we would like to emphasize the following: Remember to educate key members of your staff on all three shifts regarding the survey process in general, realizing that some of the staff members on your second and third shifts may have had little or no experience with the survey process. This education should include being prepared to answer surveyors' questions, particularly on subjects such as staffing, abuse and neglect and care assignments. Remember that staff on other shifts may not be aware of what to do if surveyors ask for quality assurance materials, incident reports, or if they ask to copy records. Staff should also be instructed to contact the administrator and the DON as soon as the surveyors arrive. Specific staff on second and third shifts should have access to the records which should be produced at the time of the entrance conference, or shortly thereafter. Staff should be instructed as to how to access and interpret the three QI reports generated by the State for quality assurance and survey readiness purposes. Medical directors and attending physicians should be educated on the new Interpretive Guidelines related to adverse drug reactions, and you need to develop new procedures for documenting the reason for using certain drugs. Appropriate members of your staff need to become familiar with the new Interpretive Guidelines on restraints and medication pass. Members of your dietary staff should be familiar with the new dining protocols and other changes in the survey process that relate to the dining experience. Your abuse and neglect policies should be reviewed and modified in light of the new abuse and neglect protocol and the new Interpretive Guidelines Your staff should be familiar with the new surveyor protocols in the State Operations Manual that are in their area of practice. Those protocols include adverse drug reactions, weight loss, pressure ulcers, dehydration, staffing, dining, and abuse prevention. You should consider including disclaimer language with respect to each tag due to the fact that individual deficiencies may be reported separately on certain computer generated report cards, etc. Certain new enforcement changes are scheduled to be implemented in September, such as modification of the plan of correction criteria, elimination of the poor performer and date certain concepts, states enforcing bans in lieu of HCFA, and elimination of the separate allegation of compliance. The Right to Appeal the Loss of Nurse Aide Training Effective July 23, 1999, HCFA published a final interim rule which allows nursing facilities to appeal their loss of nurse aide training programs. Historically, nursing facilities have been denied the right by HCFA to appeal the loss of nurse aide training. For example, in a survey situation in which an actual "remedy" such as fines, bans or termination were never imposed, the facility had no independent right to appeal to an Administrative Law Judge the loss of nurse aide training, or the deficiencies which caused this loss. While the facilities had the right to informal dispute resolution, if they were unsuccessful in challenging the deficiencies which caused the loss of the nurse aide training at the IDR level, there was no formal right under federal regulations to appeal further, e.g., no right to an evidentiary hearing before an ALJ. Moreover, under state law, facilities do have the right to appeal the revocation of nurse aide training, but that right had been severely limited due to HCFA's position that providers have no right to a hearing. The practical effect was that ODH Hearing Examiners in these cases would refuse to hear evidence regarding the efficacy of the underlying deficiencies which caused providers to lose their nurse aide training. Once ODH proved that an extended survey took place, for example, the Hearing Examiner would refuse to consider evidence showing that the survey should not have been extended because the deficiencies did not exist or were not of the scope or severity claimed by the surveyors. Therefore, the state right to a hearing was an empty one. This new rule now specifically provides that facilities will be allowed to challenge the level of noncompliance (scope and severity), which is essential in questioning most sub-standard quality of care cites. These rule changes are significant to providers in that they now have a second opportunity to remove from their record unjustified deficiencies, and also have an opportunity to formally challenge the revocation of their nurse aide training. Corporate Compliance In a groundbreaking case, a Santa Clara, California county grand jury indicted the owner of several nursing home facilities under the state's elder abuse statute on six felony counts of neglecting its elderly and disabled residents. The indictment alleged that six patients at three facilities were neglected, causing serious bodily injury or death. Prosecutors charged that one patient was sexually assaulted and that several patients went unattended for days, forced to lie in their own feces and urine and developed bed sores that often became infected. The case is unusual because it charged the owner of the facilities with criminal misconduct. HCFA has established a web site for states to share their legislation for the detection and prevention of fraud and abuse within the Medicaid program. The new National Health Care Fraud and Abuse Task Force held its first meeting at the end of April. Among one of the Task Force's priorities is targeting nursing homes. The Task Force, which will meet twice annually to develop directives and policy, includes Ohio Attorney General Betty Montgomery and John Guthrie, Director of the Ohio Medicaid Fraud Control Unit and President of the National Association of Medicaid Fraud Control Units. The OIG has released draft guidance to the hospice industry regarding its suggestions on how to design and implement a corporate compliance program, and final guidance for the DME industry. Another nursing facility has paid $195,000 to settle allegations from the OIG that it violated the False Claims Act by submitting claims to Medicare and Medicaid for inadequate care provided to its residents. The alleged deficiencies came to light during a routine survey in 1996 by the state's health department. The government alleged that the facility provided inadequate nutrition, wound and incontinent care to several residents. The settlement does not represent any admission of wrongdoing on the part of the facility. The OIG issued a final rule, that revises the OIG's exclusion and civil money penalty authorities established as a result of the Balanced Budget Act of 1997. The revisions are intended to enhance the OIG's administrative sanction authority through new or revised exclusion and civil money penalty provisions. According to a recent press release, HCFA is distributing posters and other educational materials to help residents and their families identify and report incidents of abuse and neglect. HCFA is asking nursing homes to display the posters as part of its education campaign to prevent abuse and neglect. OSHA Note that if you receive OSHA's "high hazard workplace" notification, the actions suggested in the letter are strictly voluntary. OSHA intends to conduct site-specific surveys of "risky" worksites prior to the end of the year. SNFs, RCFs and ICF-MRs whose 1997 OSHA 200 logs contained more than 16 lost workday injuries/illnesses per 100 full-time employees and who completed a 1998 mandatory OSHA survey reporting this injury/illness data are very likely to have a survey between now and the end of the year, unless they have been recently surveyed. A U.S. Court of Appeals struck down OSHA's "voluntary" safety compliance program because it amounted to new government regulations that should have gone through proper regulatory channels prior to implementation, such as a public comment period. Year 2000 A new bill was signed into law that contains protections for businesses from lawsuits arising from Y2K problems. Although the bill is welcome legislation for all businesses, it offers less protection to nursing home owners than to many other industries. For example, the legislation does not provide any protection from personal injury or wrongful death lawsuits - the nursing home industries greatest Y2K exposure. In addition, although the new law provides caps on punitive damages, it does not provide any such cap for businesses with over 50 employees. An AHCA survey recently identified the following areas of weakness in SNF preparation for Y2K problems: biomedical equipment, end-to-end testing and the development of contingency plans. Survey & Enforcement A judge has determined that a SNF that underwent a CHOW following its termination from the Medicare program did not have the right to appeal HCFA's determination not to allow it back into the program. AHCA has filed a lawsuit against the government alleging that HCFA's new CMP rules that allow the institution of "per instance" penalties are invalid because they were not promulgated correctly and exceed HCFA's legislative authority. Under the new definition of a "poor performer," the GAO reported that 2,275 nursing homes, or 15 percent of all facilities in the U.S., would be placed in that category as a result of violations over the last 15 months. Currently, just 1 percent of homes, or 137 facilities, fall into the "poorly performing" category. Miscellaneous News A nursing home in California has settled a wrongful death lawsuit for $1,000,000. The family of the deceased resident argued that the nursing home was understaffed, and that the facility's lack of care led to weight loss and bed sores that contributed to the resident's death; the facility admitted no wrongdoing in the settlement. Although the facts and the reason for the large settlement are unique to this particular case, highly publicized cases such as this one provide great encouragement and incentive to plaintiffs' attorneys. JCAHO has stated that it is going to start offering an accreditation program for assisted living facilities. The first surveys would likely take place in late 2000 or early 2001. DHHS has decided to provide hospices accredited by JCAHO deemed status for participation in the Medicare program. Hospices accredited by CHAP are also eligible for deemed status. HHAs participating in the Medicare and Medicaid Programs are required to initiate the use of the standardized assessment data set, OASIS, as follows for skilled patients: the Collection and Encoding effective date is July 19, 1999; the Transmission effective date is August 24, 1999. New Ohio Revised Code section 3721.025 reads as follows: "If the operator of a nursing home provides special services that are above the minimum services that must be provided to be licensed under this chapter as a nursing home, the operator shall submit to the Department of Health a written description of the special services provided. The Department shall maintain a registry containing all descriptions submitted under this section. On request, the Department shall provide a copy of a description submitted under this section." Blaming staffing levels for many problems associated with substandard care has been very popular with the SEIU and the National Citizen's Coalition for Nursing Home Reform, which recommends a minimum or 4.1 nursing hours per patient day. Such proponents have been getting the attention of federal and state lawmakers across the country. For example, at least 17 states are considering or have already passed legislation mandating minimum staffing levels for nursing homes this year. RR&G News We occasionally send out legal updates and other news that we find of interest for the long-term care industry via email. If you would like to be added to our distribution list, then please send an email to Aric Martin at admartin@rrglaw.com, or call and give him your email address. Carol Rolf has been selected to present a session at the American Health Care Association's Annual Convention, entitled "Self-Determination in the ICF-MR" on September 26, 1999. Carol will also be presenting a seminar at AOPHA's Annual Convention, entitled "Survey & Enforcement: Evolving Theories of Liability" on September 10, 1999. Dennis Roth will also be presenting a session at AOPHA's Annual Convention along with Chris Joos of Plante & Moran, entitled: "What Can You Do If It Costs Too Much?" on September 9, 1999. This session will examine fiscal and legal admission strategies in light of Medicare PPS. Seth Wolf has accepted a nomination to the Professional Advisory Committee of the Law-Medicine Center at Case Western Reserve University. We have recently updated our template DNR policy, and Abuse, Neglect & Misappropriation policy and related materials to comply with recent changes in the law. We have also developed a corporate inservice on the recent changes made to the survey and enforcement process. Let us know if you would like assistance in preparing your facility for addressing the new requirements.   | Practice Areas | Attorney Profiles | Publications | | Seminars | Screen for Exclusion | Contact Info | | Directions | Home | Rolf & Goffman Co., L.P.A. Phone 216-514-1100 E-mail info@rolfgoffman.com