LONG-TERM CARE UPDATE Volume VII, No. 1 Winter 2001 Spotlight: HIPAA Privacy Regulation Survey & Enforcement -- Orders for Residents with Diabetes -- Revisit Policy: Date of Compliance -- Surveys Too Predictable? -- Poor Performing Chain Proposal Shelved -- Recent Survey Appeal Decisions Risk Management & Compliance -- Quality Assurance Protection for NFs -- Psychiatric Services in SNFs -- Excluded Providers -- Lawsuits & Prosecutions -- Admission Agreement Arbitration Clause -- Resident Assessment Inspection Reports State News -- Medicaid Budget Cuts -- Notice Required for All Bed Size Changes -- Pharmacist Immunizations -- Probate Rejections -- Charges for Medical Records -- New Food Safety Regulations -- Changes to Non-Profit Corporations Law -- CON Exception Employment Issues -- FLSA Overtime Manual -- Employment Posters OSHA -- New Ergonomics Standards -- New OSHA Rules Mental Health Issues -- MR/DD Rule Changes -- ICF/MR's Miscellaneous Issues -- Return to Home Passes -- Consumer Reports Guide to NFs -- SNF PPS Presumption of Coverage RR&G News SPOTLIGHT: HIPAA Privacy Regulation An extensive new Federal regulation, which governs the privacy of health information, was published in the Federal Register on December 28, 2000 (the Privacy Rule). The Privacy Rule poses yet another compliance burden for the health care industry, and long-term care is no exception. The regulation will go into effect on April 14, 2001, meaning that all persons and entities covered by the rule, including nursing facilities, must achieve compliance by April 14, 2003. While a little more than two years may seem like a long time to some, because of the numerous and complex standards and requirements of the rule (the rule and corresponding comments comprise nearly 370 pages in the Federal Register), as well as the costs and time investment needed for compliance, it is important that all nursing facilities begin taking steps soon towards compliance. The overall purpose of the Privacy Rule is to protect the confidentiality of individual health information. Thus, the rule sets forth in very specific terms: Circumstances when health care providers are required to disclose a patient/resident's health information; For what purposes, to what parties and under what conditions health care providers may use and disclose a patient/resident's information; When providers may not disclose health information that identifies an individual without the obtaining the individual's explicit written authorization to do so; Requirements that the provider implement mechanisms to verify that the identity and authority of any recipient of health information is both appropriate and intended; Requirements that the provider ensure that it uses, discloses and requests only the minimum amount of health information necessary to accomplish the intended purpose of the use, disclosure or request; and Requirements that the provider establish a mechanism to formally account for most disclosures (i.e., including, but not limited to, when and to whom the disclosure is made). Although the primary scope of the Privacy Rule addresses the way in which health information is to be used and disclosed by health care providers, there are a number of other aspects to the rule as well. For instance, in order to achieve compliance, the rule also requires that health care providers to do each of the following: Afford residents a litany of "rights" with respect to their health information, such as: the right to receive notice as to the provider's health information practices; the right to access, inspect and copy their health information; the right to amend or correct inaccurate information; and the right to receive an accounting of disclosures made by the provider; Develop and implement a procedure to address resident complaints regarding the provider's health information practices; Enter into written agreements with all persons and entities to whom the provider may disclose health information in order that such person or entity may perform a function on behalf of the provider; Provide training to its employees on the policies and procedures implemented pursuant to the rule, as well as on the provider's health information practices in general; and Appoint a Privacy Official with clearly defined duties, who will oversee the compliance process. The Bush administration has opened up the final Privacy Rule to an additional 30-day comment period before the effective day of the regulation. Thus, there is a chance that some of the specific requirements of the rule may change. There is little chance, however, that this rule will be rescinded. Due to the complexity and voluminous nature of the Privacy Rule and the expenses associated with compliance, it is natural to view the upcoming implementation process with trepidation and confusion. Without question the regulation will be a challenge to everyone in the long-term care industry. To make matters worse, the Department of Health and Human Services is expected to publish another final rule, which will further expand on the principle of protecting heath information and that will also likely require compliance by 2003. It is anticipated that this rule will require that providers implement various physical, technical, and administrative security mechanisms to ensure the integrity of health information. To assist in understanding and implementing each of these regulatory standards, RR&G will be publishing a manual that will contain many helpful and informative tools designed to aid in the compliance process. The manual will include a detailed explanation of the regulations, as well as their specific impact on long-term care providers in Ohio. In addition, it will include checklists, template policies and procedures, template consent and authorization forms, employee job descriptions, template business associate contracts, diagnostic tools and other educational materials that will be useful in training employees. These materials have been designed to provide facilities with easy to use directions and guides to help meet the compliance dates efficiently, and in a timely fashion. The manual will be available soon after effective date of the Privacy Rule. For more information, contact Aric Martin. SURVEY & ENFORCEMENT Orders for Residents with Diabetes. Recently we have seen a trend in the survey enforcement arena in the state of Ohio, whereby state surveyors are citing nursing facilities solely on the basis of what is not contained in the written order of a physician. In other words, some surveyors have taken the position that, with regard to physician's orders for residents who require the administration of insulin and/or their condition is such that their blood sugar level must be monitored, the order must contain particular ranges of blood glucose levels. More specifically, the surveyors have cited facilities because physician orders did not contain parameters for the facility to follow as to when it should notify the physician when a resident's blood sugar level is either too high or too low. Revisit Policy: Date of Compliance. Although we reported on this in our last newsletter, many of our clients are still confused on this issue. Thus, we believe that it bears repeating. HCFA has changed its policy regarding the effective date of compliance following a survey when a facility receives a deficiency. For all surveys conducted on or after 9/22/00, where deficiencies are found in a quality of care area that constitute immediate jeopardy, actual harm or substandard quality of care, the state survey agencies have been directed to use the date of revisit as the effective date of compliance. This is a significant change in policy with serious consequences for nursing homes. Many more homes will now incur significantly larger civil monetary penalties, and will lose their nurse aide training (if the daily fines exceed $5,000 or if a ban on admissions is imposed). For example, assume a facility with an exit date of March 1 received a citation under tag F324 with a scope/severity of "G" and a fine of $350 a day effective March 1, and a denial of payment for new admissions effective March 20. The facility submitted a plan of correction with an alleged compliance date of March 10 and was revisited and found in compliance on March 25. Under the prior policy, the surveyors had the discretion to accept March 10 as the date of compliance, and thus limit the facility's fines to $3150 and avert the ban on nurse aide training. Under the current policy, the date of compliance is mandated to be the revisit date, and thus the fines in this example would be $8400, the denial of payment would be imposed for five days, and nurse aide training would be lost. (Note, however, that if the "G" citation had been found in any area other than quality of care, then the new policy would not apply.) HCFA has indicated that it is reviewing this policy, and we expect the revisit policy to be released by the end of March. We will let our clients know of this change (if it occurs) through our email newsletter list. Surveys Too Predictable? HCFA was recently criticized in a Senate Special Committee meeting for failing to make surveys more unpredictable. A representative of the General Accounting Office (GAO), the Congressional oversight agency that polices HCFA's activities, testified that most state surveys occur within a few weeks of the anniversary of the last annual survey, making surveys predictable to operators. Moreover, few surveys are conducted during off-peak or weekend hours. Look for HCFA to react to this criticism by pressuring State Agencies to increase the number of off-peak hour and weekend surveys, and to survey homes with less predictability. Poor Performing Chain Proposal Shelved. Sources inside HCFA have indicated that the agency has shelved plans to punish companies that own multiple nursing facilities for poor performance under a 'poor performing chain' theory. The proposed policy would have subjected chains to immediate enforcement remedies at all of their facilities in a particular State in the event that 25% of their facilities in that State had 'G' level deficiencies on two or more standard surveys or findings of substandard quality of care. Recent Survey Appeal Decisions. Administrative Law Judge (ALJ) and Departmental Appeals Board (DAB) cases provide some insight into how a case would be reviewed if a facility decided to formally appeal remedies that were imposed against it, and also provide bases for making arguments in an informal dispute resolution (IDR). Listed below are some recent holdings of interest: In a January 16, 2001 decision, an ALJ overturned the surveyors' determination that a facility was in immediate jeopardy under F224 and F353. For the F224 tag, the ALJ found that: nearly all of the examples rested on hearsay, and were attributed to unidentified individuals. In such case, the facility could not be expected to be able to respond to these complaints, and HCFA must present evidence that verifies the allegations. The ALJ also pointed out that facilities are sometimes justified in not responding to resident complaints, when residents use them chronically and as attention-getting devices. With regard to the F353 cite, the ALJ ruled that the regulation underlying this tag is "aimed at assuring that a facility maintains adequate numbers of staff, and does not directly address quality of care or quality of life in a facility," as these issues are addressed by other regulations. The ALJ also found that, "in the absence of an explicit standard in the (federal) regulation, it is reasonable to assume that facilities which comply with applicable state staffing requirements are in compliance." In an October 30, 2000 case, an ALJ determined that a facility was still liable for the abuse of a resident even though: the facility developed, implemented, and had in effect adequate and reasonable policies and procedures that prohibit mistreatment, neglect, and abuse of residents; the nurse aide involved was adequately screened; and the incident was reported or handled appropriately. The ALJ held that pursuant to the law and regulations, a resident has an absolute right to be free of abuse. The ALJ noted that HCFA's central office has published a policy which states that a facility has been found to take all necessary steps to prevent abuse and took appropriate actions after the abuse occurred, then a deficiency should not be cited. However, the ALJ noted that this is only HCFA's policy, and does not constitute its interpretation of the regulation. RISK MANAGEMENT & COMPLIANCE Quality Assurance Protection for NFs. Based on our concern regarding the exposure of Ohio's long-term care community to the rising tide of litigation that we have seen recently, our firm distributed a position paper in June of 2000 entitled, Long-Term Care Litigation & The Insurance Crisis. In that paper we laid out steps that we believed were important to protect the long-term care industry. We listed the following as the first step: "Statutory protection for nursing home quality assurance and peer review information needs to be enacted. In order to assure a candid and conscientious review of quality issues, Ohio law has provided hospitals with confidentiality and immunity for their peer review and quality assurance processes for over thirty years; nursing homes should be provided with the same protection for the same reasons." We were very pleased that the Ohio Health Care Association (OHCA) took the lead in lobbying the legislature to amend the peer review law that applies to hospitals. The diligent efforts of Pete Van Runkle and Todd Bergdoll paid off, and the legislature passed a bill to amend the law so that it would apply to all long-term care providers, which the governor has signed. In light of this new law and the increase in lawsuits against long-term care providers, we suggest that providers revisit their risk management policies and procedures. You will want to make sure to structure your quality assurance and peer review processes so that your facility or facilities can take advantage of the new law. In addition, you may also wish to establish a more formalized risk management program that includes policies and procedures on a variety of topics, such as customer and media relations, incident reporting, quality assurance, record keeping, requests for medical records, charting procedures, auditing of high risk areas, lawsuits and investigations. Our firm has prepared a template policy on QA documents, and provides a corporate inservice on the subject. For more details, contact either Carol Rolf or Aric Martin. Psychiatric Services in SNFs. A recent study by the Office of Inspector General has criticized the provision of psychiatric services in nursing homes as frequently unnecessary. The study claims that up to thirty-nine percent of psychiatric services in nursing homes are either medically unnecessary, lack proper documentation, or are generally questionable in nature. The OIG attributed this trend in part to inadequate and unclear utilization guidelines. Excluded Providers. Are you keeping up to date on who is excluded? RR&G sends out a monthly list identifying all new persons and entities from Ohio that have been excluded in the prior month via our email news list. If you want to receive these updates, then send an email to Subscribe@LTClawyers.com. Lawsuits & Prosecutions. Four civil lawsuits have been filed as a result of the oxygen/nitrogen mix up at the Dayton nursing facility that has been so widely reported. In addition, a grand jury has indicted the facility's corporate parent on four counts of involuntary manslaughter based on the deaths, and the supplier of the nitrogen tank has also been charged with four counts of reckless homicide. The 8th Circuit Court of Appeals (Missouri, Arkansas, Iowa, Minnesota, Nebraska, North Dakota, South Dakota) has ruled that where a purchaser of a skilled nursing facility assumes an existing provider agreement, the owner assumes the agreement subject to its prior terms and conditions, including civil monetary penalties (CMPs). In the case, purchasers of a skilled nursing facility and the corresponding provider agreement that was subject to CMPs sued HCFA in Federal Court, claiming the imposition of the penalties violated due process. The Court disagreed, stating that just as a plan of correction carries over to the next owner, so do CMPs when the owner accepts the seller's provider participation agreement. A company that owns or leases 105 nursing homes around the country, has agreed to pay $27 million to resolve allegations that it submitted inflated cost reports (employee time) to Medicare between 1991 and 1996. An administrator from one of the organization's Florida facilities, who was the whistleblower who originally brought the suit, will receive 20% of the recovery ($5.4 million). Another nursing home has been nabbed in Pennsylvania by the U.S. Attorney's office under the theory that it submitted False Claims when it submitted claims for payment for residents who received a poor quality of care. The facility has signed a consent order that includes the following elements: a $90,000 payment; retention of a government-selected consultant with a budget of up to $100,000 to address and monitor quality of care issues; provision of wound care under the Agency for Healthcare Research and Quality, and other specific care interventions. The facility and parent company have denied any wrongdoing. The Texas Supreme Court has ruled that a Texas law that imposes caps on the amount of damages that a plaintiff can receive does not apply to punitive damage awards. In the case, a jury awarded the estate of a nursing home resident $2,371,000 in actual damages and $90,000,000 in punitive damages due to the fact that the resident developed pressure sores and contractures in the facility. The trial court, interpreting Texas' damage cap law, reduced the jury's finding of damages to $1.5 million in actual damages and $9.5 million in punitive damages. The Supreme Court reversed the trial court and reinstated the jury's award. A Texas nursing facility has been ordered to pay $312.8 million to the estate of a deceased resident. The suit contended that the patient died as a result of malnourishment, dehydration and 16 severe bedsores that she suffered while a resident of the facility. According the Associated Press, a New York nursing home has recently agreed to a $3.5 million settlement of a lawsuit filed by the family of a former resident. The multiple sclerosis victim lost consciousness after choking on a hot dog and suffered brain damage as a result of oxygen deprivation. Admission Agreement Arbitration Clause. In an effort to assist the long-term care industry in defending itself against frivolous lawsuits, our firm provided a sample arbitration clause to OHCA and AOPHA to distribute to their members. If you did not receive a copy of this revised sample clause, and you would like to review it, please feel free to contact us. We will be happy to provide you with a copy. Resident Assessment Inspection Reports. In a recent report, the OIG found significant coding problems in MDS assessments. According to their reviewers, 76 percent of the cases reviewed had discrepancies when compared to the rest of the medical record. However, these consisted of both upcoding and downcoding, which may indicate confusion or difficulties with the assessment instrument rather than deliberate miscoding. Therapy minutes and activities of daily living are keys to the differences. The OIG recommended a number of steps which HCFA can take to address these problems, primarily by way of training and clarifying definitions and requirements. To review the report in their entirety, go to www.hhs.gov/oig/oei/reports/a504.pdf. STATE NEWS Medicaid Budget Cuts. The Taft administration has proposed budget cuts in Medicaid payments to Ohio's nursing facilities. We know that you will all receive a lot of information from your respective provider associations on this topic. Listed below are the basic components of the budget proposal: (1) Do not process a change of provider agreement if the previous provider does not comply with the 45-day notice requirements. (2) Reverse the change in depreciation recapture language accomplished by H.B. 698. (3) Eliminate the provisions for "extreme circumstances" rate adjustments for changes of ownership resulting from bankruptcy or reorganization. (4) Eliminate the return on equity for operators with more assets than debt. (5) Do not apply the 100% imputed occupancy penalty to direct costs, but do apply it to indirect, capital and other protected by dividing those costs by all beds in the facility. (6) Remove all non-Medicaid residents from the quarterly case-mix scores. Notice Required for All Bed Size Changes. HCFA allows skilled nursing facilities the opportunity to change the number of certified beds (Medicare or Medicaid) two times during the provider's fiscal year. (Note that this policy has been misinterpreted by many to only apply to Medicare distinct part changes, and not to all certified bed changes). The first change can be effectuated at the beginning of the cost reporting period and the second opportunity for change is the beginning of a cost reporting quarter. The request must be made 45 days in advance of the effective date. HCFA has also stated that only one decrease of beds per cost reporting period is permitted. Thus, a provider can increase beds up to two times per year but is allowed only one decrease of beds. The rule requires the provider to provide a map depicting the location of the beds with its request for change. An exception to the 45-day rule is where skilled nursing facilities change the location of certified beds. So long as the number of certified beds remains the same, only 30 days' notice is required. A skilled nursing facility may not make any bed size changes retroactively. Pharmacist Immunizations. Effective March 12, 2001, pharmacists may administer by injection adult immunizations for influenza, pneumonia, tetanus, hepatitis A, and hepatitis B, if: (1) the pharmacist has completed a specified training course; (2) is certified in basic life support procedures by the Red Cross or American Heart Association; and (3) practices in accordance with guidelines developed by a physician and approved by the State Board of Pharmacy. Probate Rejections. If an Ohio nursing facility presents a claim against the estate of a deceased resident as a creditor for monies owed, it needs to be aware of the applicable legal requirements that apply to the claim or risk having such claim barred forever. The law provides that a creditor's claim is deemed to be rejected (in whole or in part) if the executor or administrator of the deceased individual's estate gives the claimant written notice that the claim is being disallowed. In addition, the law states that if a creditor presents a claim against the estate in writing, requesting an allowance of the claim within five days, such claim is considered rejected if the executor or administrator fails to give the claimant a written statement of the allowance within such five day period. In any event, when a creditor's claim has been rejected, the law mandates that a creditor commence a legal action on the claim (or on the part that was rejected) within two months after the effective date of such rejection, which in the former case would be the date that the executor or administrator's written notice is received by the creditor, and in the latter case would be the date when the five day period expires. In either situation, if the creditor fails to initiate an action within this timeframe, it is banned from ever maintaining an action on the claim again. Charges for Medical Records. H.B. 508, which created a new law, Revised Code section 3701.741, establishes the charges that health care providers may charge for copies of medical records. For paper copies, the charge structure is as follows: (a) an initial fee of $15; (b) $1 per page for the first 10 pages; (c) $.50 per page for pages 11-50; (d) $.20 per page for pages 51 and higher; and (e) the actual cost of any postage incurred. While this law specifically excepts requests for records made pursuant to 42 C.F.R. § 483.10 (Federal resident rights regulation), it is our view that this new law establishes the "community standard" charge structure referenced in the State Operations Manual. New Food Safety Regulations. The Ohio Department of Health has promulgated a comprehensive set of new regulations governing food safety. The Ohio Uniform Food Safety Code, effective March 1, 2001, creates new regulations addressing service and food safety. Some highlights of the new regulations and their impact on long-term care are summarized below. You may access a full copy of the Uniform Food Safety Code's Regulations from the Ohio Department of Health's web site at www.odh.state.oh.us/rules/final/chap3717_1/Fr3717_1_lst.htm. The new regulations include requirements for management supervision of food service staff, new hand washing requirements, food service employee health requirements, food storage, and rules on contamination and cleanliness. Additionally, the new regulations lower the cold holding temperature requirements for refrigerated foods from 45° F to 41° F. Fortunately, institutions will have seven years to comply with the new cold storage requirement, which should give facilities time to replace refrigeration equipment that cannot chill to these temperatures. The new regulations also create special rules for the provision of food to Highly Susceptible Populations, which includes the elderly. Under the new regulations, institutions such as nursing homes and assisted living centers are prohibited from serving the following types of food to their Highly Susceptible Populations: Pre-packaged fruit juices that have not been pasteurized. Raw animal foods such as raw fish, raw marinated fish, raw molluscan shellfish, and steak tartare. Partially cooked animal foods such as lightly cooked fish, rare meat, soft-cooked eggs made from raw shell eggs, and meringue. Raw seed sprouts. Non-pasteurized shell eggs or non-pasteurized liquid, frozen or dry eggs or egg products may not be used in the preparation of Caesar salads, hollandaise or Béarnaise sauce, mayonnaise, egg nog, ice cream, and egg-fortified beverages. Food from original unopened packages may not be stored and re-served. Changes to Non-Profit Corporations Law. Ohio's Non-profit Corporations Law was recently modified. One of the most notable changes is that the new law does away with the designation of 'trustee' for the purposes of a non-profit's governing Board. Instead, members of the governing Board are to be referred to as 'directors', and all references to 'trustees' within the statute now state so accordingly. In addition, the new law alters the procedures for the dissolution or sale of substantially all of the assets, adoption and content of regulations; membership; notice requirements; voting; actions without a meeting; sales or other dispositions of assets by "mutual benefit" and "public benefit" corporations; mergers and consolidations; dissolution and winding up of affairs; and definitions. The law is available at http://legislature.state.oh.us/bills.cfm?ID=123_HB_597. CON Exception. We wanted to share with our non-profit clients an exception to the Certificate of Need (CON) law in Ohio that will be applicable to a small number of facilities - but could be a valuable option to those facilities. If you operate a facility (1) that has been in continuous operation since at least June 17, 1878, (2) are operating as a nonprofit entity under the law of Ohio or another state, and (3) are located in an "inner city area" (which is not defined by law), then you are eligible to add up to 30 licensed nursing home beds without a CON. The exemption would apply only as long as the beds are owned and operated by the facility to which the exemption was granted. EMPLOYMENT ISSUES FLSA Overtime Manual. The Federal Fair Labor Standards Act (FLSA) requires employees to be paid for overtime hours worked. While this law appears simple, it involves numerous requirements that are detailed in dozens upon dozens of interpreting regulations. In order to assist our clients with navigating these requirements, RR&G has developed an FLSA Overtime Manual. The manual addresses employee eligibility; computation of the "workweek," and alternatives to the standard "workweek" that may be adopted by health care providers; what does and what does not constitute "hours worked;" when payments beyond normal hourly or salary payments, such as shift differentials and bonuses, may be included as monies paid for overtime; record keeping requirements; and enforcement under the FLSA. If you are interested in this manual, then please contact Carol Rolf or Christopher Tost at (216) 514-1100 or e-mail Overtime@LTClawyers.com. Employment Posters. The Department of Labor has created a new website, Poster Advisor, to assist employers in determining what Federal labor posters need to be posted in accordance with the Fair Labor Standards Act, Equal Employment Opportunity Act and other Federal labor laws. Posters required for specific businesses depend on various factors including the number of staff employed. Poster Advisor asks the user a series of questions and provides the employer with a list of required posters. Poster Advisor allows the employer to download and print the posters at no cost. To access this information, go to www.dol.gov/elaws/posters.htm. OSHA New Ergonomics Standards. The Occupational Safety and Health Administration (OSHA) has published a final ergonomics program standard, which became effective on January 16, 2001. This controversial regulation will have a profound impact on long-term care, requiring employers to implement programs designed to reduce the number and severity of musculoskeletal disorders (MSDs) caused by exposure to risk factors in the workplace. MSDs are injuries and illnesses affecting muscles, nerves, tendons, ligaments, joints, or spinal discs, including carpal tunnel syndrome, tendinitis, rotator cuff syndrome, sciatica, low back pain, and epicondylitis. Nursing home employees are particularly prone to MSDs, due to the lifting and transfer requirements of residents. The new rule has been met with strong opposition from a variety a groups, including the long-term care industry. As of the date of this article, both AHCA and AAHSA have joined a lawsuit filed by the U.S. Chamber of Commerce challenging the legality of the regulation. Facilities who were implementing an ergonomics program of their own as of November 14, 2000, may continue to do so in lieu of OSHA's requirements. However, an alternative program to the OSHA ergonomics standard must be written and provide for prompt reporting of MSDs, and provide for appropriate responses by management. Alternative plans must also include provisions for employee participation, job hazard analysis, demonstrated use of engineering, work practices reorganization and design, and administrative controls to prevent and manage MSD hazards. For long-term care facilities that have not implemented an ergonomics program, they must share the following information with their employees by October 15, 2001: All employees are to be provided with basic information about MSDs and the importance of reporting them early. Employees are to be informed of OSHA's ergonomics standard and of its requirements. Employees are also to be educated of the risk factors and work activities that are most likely to lead to MSD concerns. New hires are to receive information concerning the ergonomics program within 14 days of commencing work. Information is to be posted in the workplace concerning how to report MSD problems. Employers are to instruct their employees how to report the signs and symptoms of MSDs in the workplace, which include: Painful joints Pain, tingling or numbness in the hands Shooting or stabbing pains in the arms or legs Swelling or inflammation Pain in wrists, shoulders, forearms, or knees Back or neck pain After October 15, 2001, facilities must begin to respond to employees' reports of MSDs. If an employee reports an MSD, the employer must determine if the symptoms qualify as an "MSD Incident." An MSD incident is a "work-related" MSD injury that requires: (a) days away from work or medical treatment beyond first aid, or (b) MSD signs or symptoms that continue for 7 consecutive days or longer. OSHA has stated that "employers have the right under this final rule to make a reasonable determination that particular MSDs are not work-related." Thus, if OSHA enforces the standard consistent with this statement, facilities should be able to avoid an OSHA citation by showing that it carefully considered an issue and involved the appropriate health care professionals in the decisionmaking process. This would allow facilities to consider what activities the employee alleging a work-related MSD has been engaging in outside of work, such as moving furniture. If an employee experiences an MSD incident, the employer must then determine whether the employee's job meets an "action trigger." This is determined by comparing the employee's job with the OSHA "Basic Screening Tool", a matrix that identifies job activities that place an employee at risk for developing an MSD. The job activities most relevant for nursing facilities are lifting more than 75 pounds at any one time, pushing or pulling more than 20 pounds for more than two hours total per day, or working with the back, neck or wrist bent or twisted more than two hours each day. If a single reported MSD meets the action trigger, then the employer must do either of the following: (1) If there has been no more than one MSD incident in that particular job and not more than two MSD incidents in the last 18 months, the employer may apply a "quick fix." A quick fix permits the employer to informally address the MSD through informal job task analysis and redesign to reduce the risk of an MSD. The employer must also obtain medical care for the affected employee free of charge, and place them on restricted work to permit recovery. In addition, the employer must obtain for the employee a formal written opinion from a health care professional evaluating and following up on the employee's MSD at no cost to the employee. All records of the quick fix must be retained for three years. (2) If the MSD incident does not qualify for a quick fix, then the employer must implement a formal ergonomics program consistent with OSHA requirements. The formal program, among other things, requires formal management designation to oversee and implement a program, employee participation, formal job hazard analysis, MSD risk management, re-engineering of MSD high-risk jobs, and implementation of other hazard reduction and control programs. The employer must also keep formal records of its activities, and permit OSHA and employee inspection of records upon request. In addition, the program must be reviewed for effectiveness at least every three years. Note that if a specific employee is on a work restriction program based on the MSD analysis, then the facility must insure that the employee who is unable to perform his or her job or any other available job receives 100 percent of his or her earnings until the earliest of one of the following: (1) the employee is able to resume work; (2) a health care professional determines that the employee will never be able to resume work; or (3) 90 calendar days have passed. It is estimated that the costs of compliance with this program will average $250 per individual employee workstation or task per year. However, the real cost of compliance with this regulation, if its implementation is not stopped by the current litigation, will depend on the extent to which OSHA decides to second-guess the judgment of facilities with regard to difficult medical and workplace issues. New OSHA Rules. The OSHA bloodborne pathogen standard has been revised to conform to the requirements of the Needlestick Safety and Prevention Act that was signed into law on November 6, 2000. The effective date of the rule is April 18, 2001. OSHA has also revised its recordkeeping rule, including the forms that employers use to record occupational injury and illness. The new requirements will be effective on January 1, 2002. MENTAL HEALTH ISSUES MR/DD Rule Changes. The Ohio Department of Mental Retardation and Developmental Disabilities (the "Department") is poised to promulgate changes to the regulations governing the Development of Licensed Residential Beds. The contemplated changes include increasing the aggregate total number of beds authorized for licensure by the Department, and revising some of the procedures for obtaining a bed license for both new and replacement beds. The rules also propose to change the procedures for responding to a County Board's Request For Proposals (RFP) for new and replacement MR/DD beds. The revisions propose to remove from County MR/DD Boards the power to establish policies and procedures for requesting RFPs, and for determining which particular plans to recommend to the Department for approval. Instead, the Department is proposing to establish standard procedures that all County Boards must follow when evaluating RFPs. In addition, the Department has proposed changes to the Contract dispute resolution process under the IO, OBRA, and HCBS Waiver programs. The proposed changes restrict a Contractor's right to appeal an adverse determination in a contract dispute with a County Board, and also propose to remove the contractor's right to appeal to the courts upon an adverse determination in an administrative hearing. ICF/MR's. HCFA has commissioned the Council on Quality and Leadership in Support for People with Disabilities to conduct look-behind surveys, complaint investigations, and crisis assignments at ICF/MR facilities. The team will conduct the unannounced look-behind surveys up to 30 days after completion of a survey by a state agency, and will conduct substantially the same survey as the state agency, using the State Operations Manual and guidance. ICF/MR's to be surveyed under the plan will be chosen by measuring ten to twelve variables. MISCELLANEOUS ISSUES Return to Home Passes. With AOPHA's support and advocacy, managed care "return to home" legislation was recently passed. In essence, this new Federal law mirrors Ohio's return to home law that sunset a couple of years ago. Under the law, managed care organizations must allow their enrollees to choose a "home" nursing facility (in which the enrollee or the spouse has resided) if the facility is in the organization's network, or if the facility agrees to accept the contract terms that apply to contracting facilities. Consumer Reports Guide to NFs. A new book by Consumer Reports lists and grades nursing homes, Consumer Reports' Complete Guide to Health Services for Seniors by Trudy Lieberman (Three Rivers Press, 2000). Consumer Reports has also published the listings on its web site, along with a "Nursing Homes to Watch" list. Consumer Reports states on its web site: "To compile our Watch List, the deficiencies shown in the surveys between July 1995 and October 1998 were evaluated on five criteria: (1) citations for failing to provide adequate access to the survey report; (2) high numbers of repeat deficiencies; (3) high severity deficiencies; (4) substandard quality of care deficiencies; and (5) high numbers of total deficiencies. This list includes the facilities with the most questionable patterns (approximately 10% in each state)." SNF PPS Presumption of Coverage. We have included as an insert in this LTC Update a copy of a clarification of the presumption of coverage that HCFA handed out at the January 22, 2001 Blue Cross Blue Shield SNF PPS and Consolidated Billing Update meeting in Baltimore. RR&G NEWS Seth Wolf has recently been elected a shareholder of the firm. In addition, we have hired a new attorney named Craig Haran to concentrate on long-term care operational issues. And for those of you who do not know, Kathy Estafanous recently had a second child, and has decided to take time off to be a full-time mother for a while. Carol Rolf and Aric Martin will be presenting a day and a half "Long Term Care Update" at the Ohio State University (10 hours of BENHA and NAB credit). For more information visit: http://fisher.osu.edu/exec/nursinghome/nh2001.htm. Carol and Aric also taught the legal portion of OSU's Core of Knowledge in February. Carol will be presenting a seminar on corporate compliance at HFMA's annual convention on April 26, 2001. Aric presented a session on resident rights at OCAL's Assisted Living Manager series on February 9, 2001. Carol and Aric both presented separate seminars on corporate compliance at Howard, Wershbale's Health Fair on January 8, 2001.   | Practice Areas | Attorney Profiles | Publications | | Seminars | Screen for Exclusion | Contact Info | | Directions | Home | Rolf & Goffman Co., L.P.A. 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