Facility Policies Can Become a Basis for Assessing Civil Monetary Penalties

From Williams Mullen Law Firm 
07.15.2016Facility Policies Can Become a Basis for Assessing Civil Monetary PenaltiesBy: Martin A. Donlan, Jr. & James T. Bailey

In Brenham Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., No. 15-60272, 2016 WL 454320 (5th Cir. Feb. 4, 2016), the United States Court of Appeals for the Fifth Circuit upheld a Final Agency Decision of the United States Department of Health and Human Services (DHHS) affirming a civil monetary penalty (CMP) for noncompliance with Medicare participation requirements.  Skilled nursing facility providers across the country should take note of this decision, as the controlling factor upon which the CMP was upheld was the facility’s failure to comply with its own policies.

This case illustrates an ominous and growing trend: state surveyors are using a facility’s policies, not state or federal regulations or federal manual provisions, to assess CMPs.                                                                                                                          

In Brenham, two certified nurse assistants (CNAs) discovered that a cognitively impaired 101 year-old resident had extensive bruising covering much of her body. The CNAs reported the bruising to the charge nurse, who informed the Director of Nursing (DON) and completed an incident report. The DON summarily concluded that the bruising was caused by a Hoyer Lift and did not report or investigate the incident further. 

State surveyors who inspected the facility discovered the resident’s bruising and reported that the facility was noncompliant at an “immediate jeopardy” level. The surveyors cited 42 CFR § 483.13(c), which requires facilities to develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents. That regulation also requires reporting of such incidents, including injuries of unknown origin, followed by a thorough investigation.

Brenham argued that 42 CFR § 483.13(c) merely required the facility to report alleged violations involving mistreatment, neglect or abuse, including injuries from an unknown source.[1] In its brief, it asserted that it reached “the reasonable and professional conclusion that the bruising incident did not meet the guidelines for reporting accidents and incidents” because there was no evidence of the requisite abuse or neglect, and there was no injury of unknown origin. DHHS argued that 42 CFR § 483.13(c) mandates that a facility develop and implement written policies and procedures to prevent the mistreatment, neglect and abuse of its residents. In concluding that this regulation was violated, DHHS states that Brenham failed to implement its anti-abuse policies.[2]

The Court’s decision turned on two internal policies that surveyors claimed the facility did not follow.  First, the Court found that its “Accident and Incidents” policy requires Brenham to immediately report and investigate suspected neglect or abuse, including “injuries of an unknown source.” Second, the Court found that “Facility Abuse” policy required the facility “to develop and implement a systematic process to investigate allegations of abuse, neglect and/or exploitation so that such events can be accurately and timely investigated and reported to the proper authorities.”[3]

The Court affirmed the DHHS Departmental Appeals Board’s (DAB) conclusion that Brenham was obligated to report and investigate the resident’s bruising as potentially linked to abuse and neglect because the bruising was an injury of unknown origin. Importantly, the DON’s summary conclusion that the bruising was caused by a Hoyer Lift and did not need to be reported was rejected as a defense, citing as “undisputed evidence:  (1) though Resident 4's bloodwork indicated her blood cell counts were slightly low, Brenham's management ruled out a hematological disorder as a possible cause; (2) CNA Q told surveyors that Brenham's DON instructed her to corroborate the Hoyer Lift causation theory, but CNA Q and CNA R nevertheless denied transferring Resident 4 with a Hoyer Lift; (3) LPN B told surveyors that Hoyer Lift equipment was not present in Resident 4's room; (4) Resident 4's care plan did "not address transfers at all, much less call for use of a Hoyer Lift;" and (5) both Resident 4's physician and Brenham's medical director opined that the bruising should have been reported. Thus, Brenham violated its own policy by not reporting the incident to state officials and not implementing a “systematic process to investigate” the bruising, which would have led to a different causation conclusion.

This case serves as a clear reminder that facilities must not only have and effectuate their internal policies, but they must write those policies in a manner that is clear and not susceptible of requiring more than state and federal regulations require. Here, the DON’s summary conclusion did not evidence a systematic process of investigation and made it easier to find that the federal requirement “to investigate thoroughly” was violated.      

We expect this decision to be followed broadly. As such, it may be prudent for skilled nursing facility operators to review their policies to be certain that they are properly tailored to ensure that the facility is capable of following them.
 

[1] Brenham Nursing & Rehab. Ctr. Petitioner, v. U.S. Dep't of Health & Human Servs., Respondent, 2015 WL 5471575 (C.A.5),  22.
[2] Brenham Nursing & Rehab. Ctr., Petitioner, Appellant, v. U.S. Dep't of Health & Human Servs., Respondent, Appellee, 2015 WL 6470932 (C.A.5), 37.
[3] Brenham Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., No. 15-60272, 2016 WL 454320, at *3 (5th Cir. Feb. 4, 2016).

CMS Contractor for Pepper Reports produce Peer Reports (Somewhat like the old Comparative Billing Reports)

Very useful to see if you should be expecting targeted Medical Review:

TMF Health Quality Institute has developed peer group charts for the skilled nursing facility (SNF) PEPPER target areas; they are available for three categories:

·         Location

·         Ownership type

·         Size (number of episodes)

For each target area, the charts display the target area percent that is at the 80th, 50th and 20th percentile for each peer group category for episodes ending in fiscal year 2015 (October 1, 2014 through September 30, 2015). SNFs can compare their Q4FY15 target area percent (from their PEPPER) for the target area to the peer group subcategory they consider is most similar to their facility. A document describing the methodology used to develop the peer groups and a listing of all SNFs and their peer group classification are also available on the "Data" page of PEPPERresources.org on the "SNF" tab. These resources will be updated annually.

TMF is committed to providing statistics that support providers' efforts to identify and prevent improper Medicare payments. To provide feedback on PEPPER, please use thePEPPER Feedback Form. To request assistance please visit the Help Desk atwww.PEPPERresources.org.

The PEPPER Team

Providers now May be Subject to False Claims Act Liability based on Subjective Government Materiality Standard

This is from my business attorney, Peter Mellette, P.C. in Williamsburg VA:

CLIENT ADVISORY: “YOU DON’T KNOW WHAT YOU DON’T KNOW”: PROVIDERS NOW MAY BE SUBJECT TO FALSE CLAIMS ACT LIABILITY BASED ON A SUBJECTIVE GOVERNMENT MATERIALITY STANDARD

June 23rd, 2016

The unanimous June 16, 2016 Supreme Court decision in Universal Health Services, Inc. v. United States and Massachusetts, ex. rel. Julio Escobar and Carmen Correa (“Escobar”) significantly expands provider exposure to liability under the False Claims Act (“FCA”). Prior to Escobar, Federal circuit courts disagreed as to whether providers could face FCA liability under the “implied certification theory.” Under that theory, the Federal government argues that by submitting a claim for reimbursement to a Federal health care program a provider implies that it has complied with Federal rules as a precondition to receiving payment. Thus, failures to disclose violations of regulations affecting eligibility to receive payment from a government program constitute false claims and subject a provider to penalties.  

Under Escobar, the Supreme Court has largely accepted the government’s theory that providers may be held liable for false claims for violating “material” regulations if they do not disclose such violations when submitting claims. Practically, given the acceptance of the implied certification theory and the subjectivity in determining which violations are “material,” the Federal government now likely has broader power to recover funds through FCA litigation and settlements.

Prior Application of the Implied Certification Theory to FCA Liability  

Federal appellate courts previously took three diverging approaches to the government’s implied certification theory cases. The first group rejected the theory completely, finding that only express falsehoods in seeking payment violated the FCA, i.e., a provider had to make a false statement or sign a statement that it has complied with the regulations and statutes to violate the FCA. A second group of federal appellate courts accepted the implied certification theory but only found providers liable for violations of statutes or regulations for which compliance was a “condition of payment.” A third group of federal appellate courts held that no condition of payment was required to find liability under the implied certification theory and that providers could face FCA liability for a violation of any applicable statute, regulation, or contract provision.

The Escobar Case and Its Bad Allegations

Arbour Counseling Services (“Arbour”), a subsidiary of Universal Health Services, Inc. (“UHS”), provided Yarushka Rivera with mental health services for five years. Arbour received payment for Rivera’s care through Massachusetts’ Medicaid program and was subject to all compliance requirements under that program.  In May 2009, a “purported” doctor at Arbour prescribed Rivera a drug for bipolar disorder that caused her to have seizures. After continuing to take the drug under the health provider’s direction, Rivera suffered a seizure that resulted in her death. 

Subsequent to Rivera’s death, an Arbour counselor revealed to Rivera’s parents that few of the staff at Arbour were actually licensed to provide mental health services and that there was little to no supervision of these medical providers. Specifically, the practitioner who prescribed the medication to Rivera represented that she was a psychiatrist when in fact she was a nurse who lacked authority to prescribe absent supervision. In sum, 23 of Arbour’s employees reportedly lacked the appropriate licenses and qualifications to provide mental health services, and Arbour had allegedly aided its employees in obtaining National Provider Identification (NPI) numbers that did not match their qualifications or actual licenses. 

Rivera’s parents initially filed complaints with various Massachusetts agencies alleging Medicaid fraud against Arbour, as its ostensibly unlicensed professionals submitted reimbursement claims for services provided that did not comply with Massachusetts Medicaid regulations. Arbour was the subject of a corrective action plan, and two employees entered consent agreements with their licensing boards. Finding state remedies insufficient, Rivera’s parents subsequently filed a Federal qui tam action alleging FCA violations against UHS. A district court initially dismissed the case because it found that none of the alleged violations of the state Medicaid rules violated a “condition of payment”.  However, taking Rivera’s allegations as true, the First Circuit Court of Appeals reversed, holding that the FCA liability should simply be based upon whether the provider knowingly misrepresented compliance with a material precondition of payment in submitting the claim—in this case, failing to employ appropriately licensed professionals and to adequately supervise staff.

UHS appealed the First Circuit’s decision to the US Supreme Court. The Supreme Court granted UHS a review to resolve the question of whether providers could be liable under the implied certification theory and whether the violation had to be of a condition of payment or if all violations of statutory, regulatory or contractual provisions could potentially result in FCA liability. The Supreme Court held in Escobar that the implied false certification theory can be a basis for FCA liability when two conditions are satisfied:

• The claim must make “specific representations about the services provided” for which the claim is being requested and may not be a simple request for payment; and
• Noncompliance must be with provisions that are material and therefore failure to disclose noncompliance must be considered “misleading” or “half-truths” perpetrated on the government to induce payment to the provider.

The Supreme Court remanded the case back to the lower court for additional fact finding on these matters.

Materiality remains Murky under the Implied Certification Theory 

The Court’s FCA materiality standard is murky at best. The Court stated that a requirement may not be considered “material” merely because it is labelled a “condition of payment” or because the government would have the option to refuse to reimburse the provider if it knew of the provider’s noncompliance. Instead, proof of the materiality of a statutory, regulatory, or contractual requirement exists if the government has consistently refused to pay claims in the “mine run of cases” based on noncompliance with a particular requirement. The Court also stated that noncompliance with a requirement that is a condition of payment could still be considered a factor in determining whether the requirement is material but that this condition alone is not dispositive of materiality.

The Court’s materiality standard in Escobar is subjective and material provisions will not be easily identifiable for providers. In each FCA case, the materiality of a regulation and a provider’s knowledge that it is violating that regulation will be a fact-specific inquiry. With minimal case law developed to instruct them, lower courts will likely differ on whether the government rightfully considers a regulation material and providers have little to no instruction on the liabilities they face. The first providers sued under this standard may suffer as sacrificial lambs, as they will have little to no government or judicial guidance on potential culpability under the new standard. Even after the new standards are applied, each case is likely to have fact-specific nuances that may be distinguished in subsequent cases by the government and the courts. Further, the availability of case law on the matter all assumes that these claims will go to trial, which is unlikely given the cost and time necessary to litigate FCA cases. Providers accused of violating the FCA are likely to be bullied into accepting settlements, even on meritless claims, to avoid the costs of litigation.

Avoiding FCA Liability

Providers should always have effective programs and policies in place to maintain compliance with all requirements under government programs, but they should pay particular attention to how compliance efforts affect the care provided to patients. The Court appears to have taken a tough stance in Escobar due to the egregious facts pled in the case of a death of a 17 year old patient due to untrained, unlicensed, and unsupervised medical professionals. Regulatory noncompliance resulting in patient harm is not the only scenario that could lead to liability, but it is certainly a scenario that may attract negative attention.  It is possible that in cases where the care provided or outcome would have been the same whether or not the provider complied with the requirement, the government may be less likely to find the noncompliance material.

Should you or your organization have any questions regarding FCA liability for your organization under the implied certification theory and new materiality standard, please contact Peter Mellette (Peter@mellettepc.com), Nathan Mortier (Nathan@mellettepc.com), Harrison Gibbs (Harrison@mellettepc.com), or Nicole Fisher (Nicole@mellettepc.com), or call Mellette PC at (757) 259-9200.

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up to date and fact specific advice

VHCA announcement of FY17 Virginia Medicaid Rates

With the start of the Commonwealth’s new fiscal year (FY) on July 1, new Medicaid reimbursement rates for dates of service on or after July 1 will begin.  For FY 2017, rates were increased for inflation at 0.51% relative to FY 2016 rates.  FY 2017 also represents the final year of the transition from cost-based rates to price-based, with price-based now representing 75% of the blended rate.

For FY 2018, which will begin July 1, 2017, rates will be fully price-based and will be rebased.  As previously reported, the two year (2017 and 2018) impact of the inflationary adjustments contained in the 2016 Appropriations Act represents  approximately $34 million in additional Medicaid funding for nursing center care.

From NARA on Manual Medical Review

Update on CMS Targeted Manual Medical Review Process

June 6, 2016

NARA has received an update on the implementation of CMS' plans for implementing the targeted manual medical review (MMR) provisions established by Congress in MACRA.  CMS has met, discussed and reviewed a great deal of information from the previous process before implementing the new process.  They acknowledge some providers treat an abundance of chronically ill patients who often exceed the cap due to their conditions and they want to prevent providers of this nature from constantly receiving ADRs which are almost always denied and then overturned.  Following are some items of importance to you:

• The Supplemental Medicare Review Contractor ("SMRC"), Strategic Health Solutions will examine providers who furnish "a lot" of minutes/hours of therapy per day at the patient level as well as providers of service who have a "high" percentage of patients that exceed the $3,700 threshold.  According to CMS, the SMRC is permitted to define what "a lot" and "high" percentage means; however, they have an understanding on how therapy is provided in all settings.  These definitions could evolve over time as the SMRC improves and assesses its data. 
• A different analysis of claims and minutes will be used between individual providers and large groups, for example, if a solo provider is billing 16 hours a day, 365 days a year, this is would be a red flag. 
• The SMRC has been directed to compare like providers such as SNF to SNF, private practice to private practice, etc.
• The review contractor will send one ADR for 40 claims per provider.  Providers should only expect one request with the possibility of additional requests if the provider appears to have significant compliance issues.
• The SMRC has 45 days to review the claims and medical records and issue a determination to the provider which will address all 40 claims under review, some of which may be denied and others approved.  Procedurally, the provider may engage the SMRC in a discussion period to provide additional details that may overturn the initial determination in the provider's favor.  Any denials not resolved during the discussion period will be turned over to the applicable Medicare Administrative Contractor (MAC) for recoupment at which time the provider may appeal the SMRC's determination.
• The SMRC has updated its website and it now includes a sample ADR letter for reference.  https://strategichs.com/smrc/current-smrc-projects/.

CMS does not want to penalize providers who are providing proper services the proper way; however, it is difficult to identify who these providers are with their limited resources.  The change in this process is intended to do more targeted reviews on providers who are providing services up to the threshold or providing inappropriate services beyond the threshold.  Claim reviews will begin with dates starting July 15, 2015 – the SMRC has already begun sending out requests.  Latesha Walker is the contact person for questions providers have about the process.  NARA is already working with Latesha to provide feedback from NARA Members about the process and identifying chronically ill patients.

CMS recognized that there were inconsistencies when the manual medical review was initially rolled out.  The selection of a single contractor should provide consistency in communication and reviews.  There would be a mix of nurses and therapists on staff conducting reviews.  CMS has indicated the ultimate goal of the targeted review process is to turn up legitimate issues and not bother providers who are not posing an issue to CMS.  Providers should, however, focus on ensuring that high dollar claims are properly documented because they may be audited.

NARA will continue to keep you posted on any updates regarding the targeted medical manual review process.

www.naranet.org 

CMS entirely re-writes rules for medical review of a SNF chart

SUBJECT: Medical Review of Skilled Nursing Facility Prospective Payment System (SNF PPS) Bills I. SUMMARY OF CHANGES: The purpose of this Change Request (CR) is to update chapter 6.1, Medical Review of Skilled Nursing Facility Prospective Payment System (SNF PPS) Bills. EFFECTIVE DATE: June 28, 2016 *Unless otherwise specified, the effective date is the date of service.  IMPLEMENTATION DATE: June 28, 2016 www.cms.gov/Regulations-and-Guidance/Guidance/... 6.1 - Medical Review of Skilled Nursing Facility Prospective Payment System (SNF PPS) Bills 6.1.1 - Skilled Nursing Facility Qualifying Inpatient Stay 6.1.2 – Types of SNF PPS Review 6.1.3 – Bill Review Requirements 6.1.4 – Bill Review Process 6.1.5 - Workload

CMS OFFERS SNF TRAINING IN ATLANTA GEORGIA FOR QRP

FROM MDS 3.0 Website:  https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Spotlight.html

Subject: SAVE THE DATE for the Upcoming Skilled Nursing Facilities (SNF) Quality Reporting Program (QRP) Provider Training on June 21 and 22, 2016

The Centers for Medicare & Medicaid Services (CMS) will be hosting a 2-day training event for the Skilled Nursing Facilities (SNF) Quality Reporting Program (QRP) on Tuesday June 21, and Wednesday, June 22, 2016, at the Omni Atlanta Hotel at CNN Center. The address is 100 CNN Center, Atlanta, GA 30303-2762.
This important training is open to all SNF providers, associations, and organizations. The objective of this train-the-trainer event is to provide SNFs with an overview of the requirements under the IMPACT Act and the QRP including:

• Information about the Quality Measures included in the SNF QRP
• Guidance on coding the Minimum Data Set (MDS)--Resident Assessment Instrument (RAI) to comply with the QRP requirements
• Data collection and submission requirements for the fiscal year 2018 Annual Percentage Update (APU) and subsequent years

Information about how to register and discounted hotel room rates will be coming shortly. Please mark your calendars.

If you have questions or need additional information, please email the PAC Training mailbox at PACTraining@econometrica.com

Draft RAI Manual for October 2016 posted

The draft October 2016 RAI manual has been posted here.  There are no surprises.  Section GG and the Discharge from Part A are described. There is new language in Section M for present on admission.  The change tables are at the end.

Delirium is a bit rearranged.

Antianxiety/hypnotic Medication QM changes

The Antianxiety/Hypnotic QM that went up on NH Compare has changed.  There are no longer a list of exclusionary diagnoses.  The only exclusions are hospice and 6 months to live (and missing data).

American Heart Assoc and American Stroke Assoc recommend AGAINST SNF placement post stroke

URL of this page: https://www.nlm.nih.gov/medlineplus/news/fullstory_158656.html

New Guidelines Recommend Inpatient Rehab After

Stroke

American Heart Association and American Stroke Association say this helps patients more than a nursing home

By Mary Elizabeth Dallas

Wednesday, May 4, 2016

WEDNESDAY, May 4, 2016 (HealthDay News) -- If possible, people who've

had a stroke should be sent directly to inpatient rehabilitation after their

hospital discharge. This would be instead of a skilled nursing facility or

nursing home, according to new guidelines by the American Heart

Association/American Stroke Association (AHA/ASA).

Inpatient rehabilitation may be part of the hospital. Or, it may be a

freestanding facility.

Ideally, stroke patients should begin their rehabilitation before they even leave the hospital. For

example, they should start to learn how to prevent falls while still in the hospital, the groups

recommend. This includes tips on how to make their home safer such as by removing throw rugs and

improving lighting.

Patients should also learn about the side effects of their medication and how to use devices such as

wheelchairs, walkers and canes before they leave the hospital, the AHA/ASA advises.

"This recommendation will probably change medical practice. Even the top stroke centers may not

have a formal falls-prevention program, but it is very important because a high percentage of patients

end up falling after a stroke," the lead author of the new guidelines, Carolee Winstein, said in an

AHA/ASA news release.

Once discharged from the hospital, stroke patients should be sent to an inpatient rehab facility where

they can continue their recover and receive more intensive therapy, the guidelines say.

"Previous guidelines have focused on the medical issues involved in the initial management of stroke,

but many people survive a stroke with some level of disability. There is increasing evidence that

rehabilitation can have a big impact on the survivors' quality of life, so the time is right to review the

evidence in this complex field and highlight effective and important aspects of rehabilitation," said

Winstein.

Winstein is a professor of biokinesiology and physical therapy at the University of Southern California

in Los Angeles.

Unlike a nursing home, an inpatient rehabilitation facility provides patients with at least three hours of

rehab on daily basis. Patients work with a range of health care providers. They may include physical

therapists, occupational therapists and speech therapists, the AHA/ASA explained.

"If the hospital suggests sending your loved one to a skilled nursing facility after a stroke, advocate

for the patient to go to an inpatient rehabilitation facility instead -- unless there is a good reason not

to, such as being medically unable to participate in rehab," said Winstein.

"There is considerable evidence that patients benefit from the team approach in a facility that

understands the importance of rehabilitation during the early period after a stroke," she said.

Other recommendations issued by the AHA/ASA include:

Stroke patients who have trouble walking should undergo intense mobility-task training to help

relearn how to perform daily activities, such as climbing stairs.

The use of a computer, books, music and virtual reality games could help enhance rehabilitation for

stroke patients, making it more engaging and mentally stimulating.

Stroke patients who have trouble speaking should undergo speech therapy.

Patients who have vision problems and have trouble focusing should perform eye exercises.

Balance training should be offered to stroke survivors at risk for falls.

Exercise regimens tailored to individual stroke patients can help them continue to improve their

fitness level once their rehabilitation is complete.

"For a person to fulfill their full potential after stroke, there needs to be a coordinated effort and

ongoing communication between a team of professionals as well as the patient, family and

caregivers," said Winstein.

The new guidelines were published May 4 in the journal Stroke .

SOURCE: American Heart Association/American Stroke Association, news release, May 4, 2016

HealthDay

Copyright (c) 2016 HealthDay [http://www.healthday.com/] . All rights reserved.

AMDA, the Society for Post-Acute/LTC Medicine has Victory MACRA Proposed Rule: Pass to MD/NPP that care for SNF residents

Pass to any physician/NPP that bills visits in a SNF.  This is big.  They will be happy.  Now,  require them to join AMDA and become a Certified Medical Director, or hit the road.

From AMDA, the Society for Post-Acute/Long Term Care Medicine today:

MACRA Proposed Rule Released; Victories for PA/LTC Professionals

Yesterday the Centers for Medicare & Medicaid Services (CMS) issued their proposed rulefor implementing certain provisions of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). MACRA ended more than a decade of last-minute fixes to the sustainable growth rate (SGR) formula and made improvements to various health care programs by streamlining quality based payments programs such as the Physician Quality Reporting System, the Value Modifier Program, and the Medicare Electronic Health Record (EHR) Incentive Program. Congress streamlined these various programs into a single framework to help clinicians transition from payments based on volume to payments based on value. The proposed rule would implement these changes through the unified framework called the Quality Payment Program, which includes two paths: The Merit-based Incentive Payment System (MIPS) and Advanced Alternative Payment Models (APMs). This rule proposes polices to improve physician payments by changing the way Medicare incorporates quality measurement into payments and by developing new policies to address and incentivize participation in alternative payment models. “It’s gratifying to know that our hard work in educating CMS about the nuances of our care setting has resulted in some movement to ensure that our members won’t be penalized for choosing to work with this ill, vulnerable, complex population,” said he Society’s Public Policy Committee Chair, Karl Steinberg, MD, CMD, of important provisions to members that are highlighted below. The Society is still reviewing the details of the 962-page rule but of note for Society members include provisions that: Exclude services billed under CPT codes 99304-99318 when the claim includes the POS 31 (SNF, meaning a resident receiving skilled post-acute services) modifier from the definition of primary care services for MIPS under the Resource Use Criteria category. MIPS-eligible clinicians (no longer ‘eligible professionals’) who lack control over the EHR technology in their practice locations (e.g. surgeons using ambulatory surgery centers or a physician treating patients in a nursing home who does not have any other vested interest in the facility, and may have no influence or control over the health IT decisions of that facility) would need to submit an application demonstrating that a majority, 50 percent or more, of their outpatient encounters occur in locations where they have no control over the health IT decision of the facility, and request their advancing care information performance category sore be reweighted to zero. In its comments on the CMS MACRA Request for Information (RFI) released earlier this year, The Society raised concerns that attributing total cost of SNF patients and comparing those with physicians who see patients in an ambulatory setting creates an unfair system within MIPS and will have unintended consequences that will lead to decreased access to care. Similarly, The Society highlighted concerns with the current meaningful use requirements that potentially penalize physicians who see patients in the SNF although there is very little current infrastructure to help those physicians achieve MU. “This is a clear signal that CMS is listening to our society’s comments and is a positive step forward for PA/LTC professionals” said Alex Bardakh, Director of Public Policy and Advocacy. The Society will continue to review the rule and inform members of other provisions of interest along with a summary. Comments on the proposed rule are due June 27th.

Sent on behalf of AMDA - The Society for Post-Acute and Long-Term Care Medicine 11000 Broken Land Parkway, Suite 400, Columbia, MD 21044

QM Manual V10.0 Posted now

The new QM manual V10.0 is posted here.


I am offering a public webinar on the new QMs on May 9th. See www.judywilhide.com, click on seminars/webinars and scroll down to register.

Virginia DMAS (Medicaid agency) unveils new website for the new dual-eligible program replacing CCC

Attention MLTSS Stakeholders:

We are pleased to share that the DMAS MLTSS webpage has been revised and includes several important updates, available at:  http://www.dmas.virginia.gov/Content_pgs/mltss-home.aspx.   We value your ongoing input and support!  Please continue to share any input that you have for us at VAMLTSS@dmas.virginia.gov.

Thank you!

Tammy Driscoll

Senior Programs Advisor to the Deputy of Complex Care and Services

Virginia Department of Medical Assistance Services (DMAS)

600 East Broad Street

Richmond, VA 23219

804-225-2552

Tammy.Driscoll@DMAS.Virginia.Gov 

SNF PFR for FY 17 posted

Direct link to proposed final rule  here.

FACT SHEET

FOR IMMEDIATE RELEASE

April 21, 2016

Contact: CMS Media Relations

(202) 690-6145 | CMS Media Inquiries

Proposed fiscal year 2017 payment and policy changes for Medicare Skilled Nursing

Overview

On April 21, 2016, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule [CMS-1645-P] outlining proposed Fiscal Year (FY) 2017 Medicare payment rates and quality programs for skilled nursing facilities (SNFs). The FY 2017 proposals and other issues discussed in the proposed rule are summarized below.

The proposed policies in the proposed rule continue to shift Medicare payments from volume to value. The Administration has set measurable goals and a timeline to move the Medicare program, and the health care system at large, toward paying providers based on the quality, rather than the quantity of care they provide to their patients. The Administration met the goal of tying 30 percent of Medicare payments to care provided in alternative payment models ahead of schedule and is continuing this momentum to reach the goal of tying 50 percent of payments to care provided in alternative payment models by the end of 2018. This proposed rule includes policies that advance that vision and support building a health care system that delivers better care, spends health care dollars more wisely, and results in healthier people. CMS encourages comments, questions, or thoughts on this proposed rule by June 20, 2016.

Changes to Payment Rates under the SNF Prospective Payment System (PPS)

Based on proposed changes contained within this proposed rule, CMS projects that aggregate payments to SNFs will increase in FY 2017 by $800 million, or 2.1 percent, from payments in FY 2016. This estimated increase is attributable to a 2.6 percent market basket increase reduced by 0.5 percentage points, in accordance with the multifactor productivity adjustment required by law.

SNF Quality Reporting Program (QRP)

The Improving Medicare Post-Acute Care Transformation Act of 2014 (P.L. 113-185) (IMPACT Act), enacted on October 6, 2014, requires the implementation of a quality reporting program for SNFs beginning with FY 2018. SNFs that do not submit required quality data to CMS under the SNF Quality Reporting Program (QRP) will be subject to a 2.0 percentage point reduction to their annual updates.

The IMPACT Act requires the continued specification of quality measures for the SNF QRP, as well as resource use and other measures. In order to satisfy the requirements of the IMPACT Act, CMS is proposing one new assessment-based quality measure, and three claims-based measures for inclusion in the SNF QRP. These measures align with the measures proposed for inclusion in the Long Term Care Hospitals (LTCH) QRP and the Inpatient Rehabilitation (IRF) QRP.

Assessment-based measure for the FY 2020 payment determination and subsequent years:

Drug Regimen Review Conducted with Follow-Up for Identified Issues.

Claims-based measures for the FY 2018 payment determination and subsequent years:

1.       Discharge to Community – Post Acute Care (PAC) SNF QRP;

2.      Medicare Spending Per Beneficiary (MSPB) – PAC SNF QRP; and

3.       Potentially Preventable 30 Day Post-Discharge Readmission Measure for SNFs.

The proposed rule further defines the SNF QRP requirements. CMS proposes to use a Calendar Year (CY) schedule for measure and data submission requirements that includes a period for provider review and correction, with quarterly deadlines following each quarter of data submission beginning with data reporting for the FY 2019 payment determinations.  

The IMPACT Act requires that procedures for public reporting of quality and resource use and other measures include a process consistent with the Hospital Inpatient Quality Reporting (IQR) review and correction processes. CMS proposes the following for public display of quality measure data for the SNF QRP, including review and correction periods, and the pre- and public reporting preview period:

·         Align the SNF QRP quarterly reporting timeframes and quarterly review and correction periods for assessment-based measures with the approach followed in the IQR;

·         Align processes related to the review and correction of claims based measures with the approach followed in the IQR; and

·         Apply a 30-day preview period prior to publishing SNF quality data during which corrections to data cannot be made, but SNFs may ask for a correction to their measure calculations.

SNF Value-Based Purchasing Program (VBP)

Section 215 of the Protecting Access to Medicare Act of 2014 (PAMA) added new subsections (g) and (h) to section 1888 of the Social Security Act. The new section 1888(h) of the Social Security Act authorizes the establishment of a Skilled Nursing Facility Value-Based Purchasing (SNF VBP) Program beginning with FY 2019 under which value-based incentive payments are made to SNFs based on performance.

Measures

This rule proposes to specify the SNF 30-Day Potentially Preventable Readmission Measure, (SNFPPR), as the all-cause, all-condition risk-adjusted potentially preventable hospital readmission measure to meet the requirements of section 1888(g)(2) of the Social Security Act. The SNFPPR assesses the facility-level risk-standardized rate of unplanned, potentially preventable hospital readmissions for SNF patients within 30 days of discharge from a prior admission to a hospital paid under the Inpatient Prospective Payment System, a critical access hospital, or a psychiatric hospital.

Other Policy Proposals

In this proposed rule, CMS is seeking public comments on additional proposals related to the SNF VBP requirements including:

·         Establishing performance standards;

·         Establishing baseline and performance periods;

·         Adopting a performance scoring methodology; and

·         Developing confidential feedback reports.

For More Information

The proposed rule went on display on April 21, 2016, at the Federal Register's Public Inspection Desk and will be available under "Special Filings," at www.federalregister.gov/articles/2016/04/25/2016-09399/.... Public comments on the proposed rule will be accepted until June 20, 2016.

For further information, please see:

·         SNF PPS: www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/...

·         SNF QRP: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/SNF-Quality-Reporting-Program-Measures-and-Technical-Information.html and https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Post-Acute-Care-Quality-Initiatives/IMPACT-Act-of-2014/IMPACT-Act-Downloads-and-Videos.html

·         SNF VBP: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/Other-VBPs/SNF-VBP.html

CJR, the first mandatory bundle: Important information about how your star rating will determine if a resident can readmit (or admit) to you for a SNF stay

From an email thread between me and the CJR folks at CMS.  My basic question was:

If a resident who qualifies for the CJR bundle wants to return to his or her home SNF after hospitalization and it doesn't have three stars, do they have to pay for the SNF Stay?

There is a SNF waiver that will begin in year 2 of the final rule. In the final rule, as described further in section III.C.11., CMS will waive the 3-day rule for episodes being tested in the CJR model for performance years 2 through 5 only if the SNF is qualified as one that has an overall rating of three stars or better in the Five-Star-Quality Rating System for SNFs on the Nursing Home Compare website for at least 7 through 12 preceding months. CMS will be providing a list of SNFs that meet this requirement to hospitals participating in the CJR model prior to the waiver becoming available for CJR hospitals.  In addition, in section III.F. of the final rule, we finalized policies that maintain a beneficiary’s right to choose any provider or supplier. In the final rule, as described in the regulation texts § 510.405, the hospital is required to notify the beneficiary if the hospital is discharging a beneficiary to a SNF prior to the occurrence of a 3 day hospital stay, and the beneficiary is being transferred to or is considering a SNF that would not qualify under the SNF 3-day waiver in § 510.610, that the beneficiary will be responsible for costs associated with that stay except those which would be covered by Medicare Part B during a non-covered inpatient SNF stay.

In the case you refer to the SNF waiver would not apply if the beneficiary wants to go to a SNF that is rated 2 stars or below.  In section III.F of the CJR Final rule, it specifically states that the participant hospitals will notify beneficiaries of their liability should they be discharged upon a less-than-3- day stay to a SNF that does not qualify for the waiver that we are finalizing for this model, and to notify the beneficiary of possible beneficiary liability if the hospital recommends or refers the beneficiary to any other services, which it knows or should have known to be non-covered services under Medicare. This notice is in addition to any ABN or other hospital notice of non-coverage that may be required under existing regulations. Please review the final rule for further details concerning the requirements set forth in the CJR final rule. Please refer requirements laid out in the regulation text 510.405 for Discharge planning.

Note: As stated in the CJR Final rule under the regulation text 510.405, the CJR model does not restrict Medicare beneficiaries’ ability to choose any Medicare enrolled provider or supplier, or any physician or practitioner who has opted out of Medicare.

From Judy:  For your residents to be be able to come back to you after hospitalization (without paying for the SNF stay themselves), if you do not have three stars or better,  they need to be able to say they do not want to participate in this bundle and/or they do not want the three day stay waived. There is a hospital I am aware of that is "educating" the feeder SNFs and the slides say this:  "If resident wants to discharge to a SNF with less than 3 stars, they have to pay for it themselves."  This hospital fails to mention that the beneficiary can opt out entirely of the bundle and the hospital can opt out of the waiver of the three day stay for that resident.  

And for the record.  We all can't be three stars or better.  It's a skewed bell curve.  When the bottom 25% of SNFs go out of business (as predicted by some),  the ones left will fill the bell curve..........AND,  the bell curve is INTERSTATE, not national, but this is a national bundled payment model.  The worst in one state may be  three stars in another state  (I have actual examples).   Please,  don't let your eyes glaze over with the technical details.  Get to your stakeholder organization and advocate.  Meanwhile,  we have to fight unjust level 2 deficiencies on survey as hard as we traditionally fight level 3 or higher.  Five '4 point' Ds equal one G in the points system for assigning survey stars.  

The full text of the CJR model final rule is available here:  http://federalregister.gov/a/2015-29438.  The CJR model website, found at http://innovation.cms.gov/initiatives/cjr/, also contains information about the proposed and final rules.

Should you have further questions on this matter, please feel free to communicate with us through this email account.

Best,

Maria Agresta Workman, RN
for Comprehensive Care for Joint Replacement

cjr@cms.hhs.gov

https://innovation.cms.gov/initiatives/cjr