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Senior and Post-Acute Healthcare News and Topics

Presentation Available: New Conditions of Participation for SNFs – Phase 1 Implementation

On the Reports and Other Documents page ( http://wp.me/PtUlY-4g ), I have uploaded a Power Point presentation my firm has made available to clients covering the new Federal Conditions of Participation for SNFs and the implementation elements that are part of Phase 1 (titled “New COPS for SNFs Phase 1”).  The presentation covers what is happening in terms of the new regulations arising out of the law, focused on Phase 1 requirements which began November 28.  The presentation will also alert providers, etc. to Phase 2 issues as applicable.

Additional background information on the Phases and the Rule can be found on this site at these post references: http://wp.me/ptUlY-kU

http://wp.me/ptUlY-kL

As always, questions, etc. can be forwarded to me via a comment accompanying this post or via e-mail (contact information on the Author page).  Remember, if you wish a reply/response, please include a valid e-mail address/contact with your post or question.

Happy Holidays!

 

December 19, 2016 Posted by | Policy and Politics - Federal, Skilled Nursing | , , , , , , , , , , | 2 Comments

The Election is Over….Now What?

We knew that sooner or later, the first Tuesday in November would arrive and with that, a new President and changes (many or few) to Congress. The outcome certain, we move to uncertainty again concerning “what next”?…or as applicable here, what next from a health policy perspective.

With Donald Trump the incoming President-Elect, only so much from a policy perspective is known.  Hillary Clinton’s path was easier to divine from a “what next” perspective as fundamentally, status quo was the overall direction. Trump’s likely direction and thus, changes to current policy, etc. are hazy at best.  Thematically, there are points offered throughout the campaign that give some guidance.  Unfortunately, much that drives current reality for providers is more regulatory begat by legislative policy than policy de novo.

Without divining too much from rhetoric, here’s what I think, from a health policy perspective, is what to expect from a Trump Administration.

  1. ObamaCare: Trump ran on a theme of “repeal and replace” ObamaCare aka the Affordable Care Act. This concept however, needs trimming.  Repealing in total, existing federal law the magnitude of the ACA is difficult if not nearly impossible, especially since implementation of various provisions is well down the road.  The ACA and its step-child regulations are tens of thousands of pages.  Additionally, even with a Republican White House and Republican-majority Congress, the Congressional numbers (seats held) are not enough to avoid Democratic Senate maneuvers including filibuster(s). This means that the real targets for “repeal and replace” are the insurance aspects namely the individual mandate, Medicaid expansion, certain insurance mandates, the insurance exchanges, a likely the current subsidy structure(s).  The other elements in the law, found in Title III – Improving the Quality and Efficiency of Health Care, will remain (my prediction) – too difficult to unwind and not really germane to the “campaign” promise.  This Section (though not exclusively) contains a slew of provisions to “modernize” Medicare (e.g., value-based purchasing, physician quality reporting, hospice, rehab hospital and LTACH quality reporting, various payment adjustments, etc.).  Similarly, I see little change made, if any to, large sections of Title II involving Medicaid and Title IV involving Chronic Disease.  Bottom line: The ACA is enormous today, nearly fully intertwined in the U.S. health care landscape and as such, too complex to “wholesale” eliminate and replace. For readers interested in exploring these sections (and others) of the ACA, a link to the ObamaCare website is here http://obamacarefacts.com/summary-of-provisions-patient-protection-and-affordable-care-act/
  2. Medicaid: The implications for Medicaid are a bit fuzzier as Trump’s goals or pledges span two distinct elements of the program.  First, Trump’s plan to re-shape ObamaCare (repeal, etc.) would eliminate Medicaid expansion.  As mentioned in number 1 prior, this is a small part of the ACA but a lipid test for Republican governors, especially in states that did not embrace expansion (e.g, Wisconsin, Kansas, etc.).  Second, Trump has said that he embraces Medicaid block-grant funding and greater state autonomy for Medicaid programmatic changes (less reliance on the need for states to gain waivers for coverage design, program expansion, etc.).  It is this element that is vague.  A series of questions arise pertaining to “policy” at the federal level versus funding as block grants are the latter.  The dominant concern is that in all scenarios, the amount of money “granted” to the states will be less than current allocations and won’t come with any matching incentives.  With elimination of the expansion elements, how a transition plan of coverage and care will occur is a mystery – federal assistance? state funding mostly?  What I do predict is that Medicaid will only suffer the setback of a restructure and replacement of the Medicaid expansion elements under the ACA.  I don’t see block grants happening any time soon as even Republican governors are opposed without a plan for wholesale Medicaid programmatic reform.  Regardless of the approach, some initial Medicaid changes are in the offing, separate from the Block Grant issue.  The Medicaid Expansion issue is no doubt, a target in the “repeal and replace Obama Care”.  The trick however is to account for the large number of individuals that gained coverage via expansion (via eligibility increases due to increased poverty limits) – approximately 8 million impacted.  This is less about “repeal” and more about “replace” to offset coverage lapse(s) for this group.
  3. Related Health Policy/ACA Issues: As I mentioned earlier, the ACA/ObamaCare is an enormous law with tentacles now woven throughout the health care industry.  The Repeal and Replace issues aren’t as “clean” as one would think.  The focus is the insurance mandate, the subsidies, the mandated coverage issues and to a lesser extent, Medicaid.  That leaves fully 80% of the ACA intact including a series of policy changes and initiatives that providers wrestle with daily. These issues are unlikely to change in any substantive form.  Republicans support alternative delivery projects, value based purchasing, etc. as much if not more than Democrats.  Additionally, to repeal is to open a Pandora’s Box of agency regulations that tie to reimbursement, tie to other regulations, etc.  For SNFs alone, there exists all sorts of overlap between Value Based Purchasing, Bundled Payments, new Quality Measures and quality reporting (see my post/presentation on this site regarding Post-Acute Regulatory Changes).  The list below is not exhaustive but representative.
    • Value Based Purchasing
    • CMS Center for Innovation/Alternative Delivery Models/Bundled Payments
    • Additional Quality Measures and Quality Reporting
    • Inter-Program and Payment Reform – Rate Equalization for Post-Acute Providers
    • IMPACT Act
    • ACO Expansion

As providers watch the inauguration approach and a new Congress settle in, the wonder is around change. Specifically, what will change.  My answer – bet on nothing substantive in the short-run.  While Mr. Trump ran partially on a platform that included regulatory reduction/simplification, the lack of overall specifics regarding “which or what” regulations on the health care front are targets leaves us guessing.  My guess is none, anytime soon.

The Trump focus will be on campaign specific agenda first: ObamaCare, Immigration, Taxation, Foreign Trade, Energy, etc. – not health policy per se.  There is some flow-through gains providers can anticipate down-the-road that can be gleaned from the Trump campaign but these are a year or more off.  If Trump does deal with some simplification on drug and research regulation (faster, cheaper, quicker approvals), funding for disease management and tele-medicine and a fast-track of some Republican policy “likes” such as Medicare simplification, Medicaid reform at the program level, and corporate tax reduction (will help for-profit providers), then gains will occur or opportunities for gains will occur.

From a strategic and preparatory perspective, stay the course.  Providers should be working on improved quality outcomes, reducing avoidable care transitions/readmissions, looking at narrow networks and network contracting/development opportunities and finding ways to reduce cost and improve care outcomes.  Regardless of what a Trump Administration does first, the aforementioned work is necessary as payment for value, bundles/episodes of care, and focus on quality measures and outcomes is here to stay and to stay for the foreseeable future.

November 18, 2016 Posted by | Home Health, Hospice, Policy and Politics - Federal, Skilled Nursing | , , , , , , , , , , , , | Leave a comment

Conference Presentation

In September, I spoke at the Kairos Health conference in Pennsylvania on request/behalf of HCPro.  The topic was on upcoming/current regulatory and compliance issues in Post-Acute Care.  By request, I am providing the presentation on this site.  Readers can find it on the Reports and Other Documents Page.  The title is “Upcoming Post-Acute Regulatory Issues”.  It is free for viewing or download.  As always, questions, comments, etc. feel free to comment to this post or drop me a note at the email address provided on the Author page of this site.

October 13, 2016 Posted by | Policy and Politics - Federal, Skilled Nursing | , , , , , , , , , , , | 1 Comment

New SNF Conditions of Participation: Implementation Timeframes

About ten days ago, I published a post regarding the new Federal Conditions of Participation for SNFs.  This long awaited regulatory update includes new, revised, and existing regulations published in final rule form last week (October 4).  The post is here for reference http://wp.me/ptUlY-kL

The questions frequently asked regarding the new CoPs (since release) are around implementation dates.  As readers will note, whether in my post or in the actual Final Rule, enforcement is in phases spanning a three year time frame – November 2016 through 2018. Recall that the CoPs in the Final Rule are the broad law changes.  Implementation requires specificity found (typically) in the Interpretive Guidelines – the actual “regs”.  We aren’t there yet and given the breadth of change in certain instances, time is necessary for regulations to be written and providers to comply.  Hence, the phasing.

I have posted below, the implementation timeframe for reference.  This guide is available via this post and is hosted on the Reports and Other Documents page on this site. I have articles forthcoming (soon) here and on other sites regarding implementation strategies and tips.  In the meantime, readers can always forward a question via comment to this post or to my e-mail address noted on the Author page.  Remember: If you want an answer direct, please provide a current, working e-mail address.  I do respond to all questions and comments as efficiently as I can.

The timeframe document is here:

implementation-timeframes

 

October 11, 2016 Posted by | Policy and Politics - Federal, Skilled Nursing | , , , , , , , , | Leave a comment

CMS Releases Final Rule on SNF Conditions of Participation

The long-awaited final rule on the revised/new SNF Conditions of Participation is set for publishing on October 4 in the Federal Register. The public inspection version is available now, including the comments from the Proposed Rule at this link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf  The whole document is over 900 pages.  The salient portions that include the regulatory changes/summary of provisions is the first 14 or so pages.

Two things to remember for policy readers and folks in the industry.  First, what is available is the “law” not the interpretive guidelines that expands on the law in a way that creates enforcement regulations and the roadmap or “how to”.  The Final Rule is absent this information.  CMS still needs to develop this element.  Second, implementation will occur in phases.  The first phase is set for November 28, 2016 with minor changes that most providers should be ready for or are parts (related or integrated) from annual rule releases/updates (CMS updates PPS for each provider segment annually) already disclosed.  For example, QMs that translate into this rule regarding unnecessary drugs, antipsychotics-psychotics, etc.  These are now encapsulated in the rule but frankly, not new in scope.  The second phase is November 2017 and the third phase, 2019.

In November of last year, concurrent with the release of the Proposed Final Rule, I wrote a piece and did a webinar for HCPro on this topic.  The written piece is here: http://wp.me/ptUlY-iT  In my review of the two, what I though would move forward fundamentally “intact” did. What I was concerned about however, didn’t change much based on the over 10,000 comments.  There is definitely, a “Camel’s nose under the tent” element with regard to staffing requirements; though not an overt regulation.  The devilish elements are around the “facility assessments” for  staff adequacy and competency, etc. and the food service requirement to meet individual preferences plus serve nutritionally adequate, palatable meals, etc.  As one of the main issues in any environment remains food (always a certain number of complaints), this one could prove very, very prickly when it comes to survey/enforcement.  The summary of changes/provisions is below, as published.

  • Basis and scope (§483.1)

 We have added the statutory authority citations for sections 1128I(b) and (c) and section

1150B of the Social Security Act (the Act) to include the compliance and ethics program,

quality assurance and performance improvement (QAPI), and reporting of suspicion of a

crime requirements to this section.

  • Definitions (§483.5)

 We have added the definitions for “abuse”, “adverse event”, “exploitation”,

“misappropriation of resident property”, “mistreatment”, “neglect”, “person-centered

care”, “resident representative”, and “sexual abuse” to this section.

  • Resident rights (§483.10)

 We are retaining all existing residents’ rights and updating the language and organization

of the resident rights provisions to improve logical order and readability, clarify aspects

of the regulation where necessary, and updating provisions to include advances such as

electronic communications.

  • Freedom from abuse, neglect, and exploitation (§483.12)

 We are requiring facilities to investigate and report all allegations of abusive conduct.

We also are specifying that facilities cannot employ individuals who have had a

disciplinary action taken against their professional license by a state licensure body as a

result of a finding of abuse, neglect, mistreatment of residents or misappropriation of

their property.

  • Admission, transfer, and discharge rights (§483.15)

 We are requiring that a transfer or discharge be documented in the medical record and

that specific information be exchanged with the receiving provider or facility when a

resident is transferred.

  • Resident assessments (§483.20)

 We are clarifying what constitutes appropriate coordination of a resident’s assessment

with the Preadmission Screening and Resident Review (PASARR) program under

Medicaid. We are also adding references to statutory requirements that were

inadvertently omitted from the regulation when we first implemented sections 1819 and

1919 of the Act.

  • Comprehensive Person-Centered Care Planning (§483.21) *New Section*

 We are requiring facilities to develop and implement a baseline care plan for each

resident, within 48 hours of their admission, which includes the instructions needed to

provide effective and person-centered care that meets professional standards of quality

care.

 We are adding a nurse aide and a member of the food and nutrition services staff to the

required members of the interdisciplinary team that develops the comprehensive care

plan.

 We are requiring that facilities develop and implement a discharge planning process that

focuses on the resident’s discharge goals and prepares residents to be active partners in

post-discharge care, in effective transitions, and in the reduction of factors leading to

preventable re-admissions. We are also implementing the discharge planning

requirements mandated by The Improving Medicare Post-Acute Care Transformation Act

of 2014 (IMPACT Act) by revising, or adding where appropriate, discharge planning

requirements for LTC facilities.

  • Quality of care (§483.24)

 We are requiring that each resident receive and the facility provide the necessary care and

services to attain or maintain the highest practicable physical, mental, and psychosocial

well-being, consistent with the resident’s comprehensive assessment and plan of care.

  • Quality of Life (§483.25)

 Based on the comprehensive assessment of a resident, we are requiring facilities to ensure

that residents receive treatment and care in accordance with professional standards of

practice, the comprehensive person-centered care plan, and the residents’ choices.

  • Physician services (§483.30)

 We are allowing attending physicians to delegate dietary orders to qualified dietitians or

other clinically qualified nutrition professionals and therapy orders to therapists.

  • Nursing services (§483.35)

 We are adding a competency requirement for determining the sufficiency of nursing staff,

based on a facility assessment, which includes but is not limited to the number of

residents, resident acuity, range of diagnoses, and the content of individual care plans.

  • Behavioral health services (§483.40)

 We are adding a new section to subpart B that focuses on the requirement to provide the

necessary behavioral health care and services to residents, in accordance with their

comprehensive assessment and plan of care.

 We are adding “gerontology” to the list of possible human services fields from which a

bachelor degree could provide the minimum educational requirement for a social worker.

  • Pharmacy services (§483.45)

 We are requiring that a pharmacist review a resident’s medical chart during each monthly

drug regimen review.

 We are revising existing requirements regarding “antipsychotic” drugs to refer to

“psychotropic” drugs and define “psychotropic drug” as any drug that affects brain

activities associated with mental processes and behavior. We are requiring several

provisions intended to reduce or eliminate the need for psychotropic drugs, if not

clinically contraindicated, to safeguard the resident’s health.

  • Laboratory, radiology, and other diagnostic services (§483.50) *New Section*

 We are clarifying that a physician assistant, nurse practitioner or clinical nurse specialist

may order laboratory, radiology, and other diagnostic services for a resident in

accordance with state law, including scope-of-practice laws.

  • Dental services (§483.55)

 We are prohibiting SNFs and NFs from charging a Medicare resident for the loss or

damage of dentures determined in accordance with facility policy to be the facility’s

responsibility, and we are adding a requirement that the facility have a policy identifying

those instances when the loss or damage of dentures is the facility’s responsibility. We

are requiring NFs to assist residents who are eligible to apply for reimbursement of dental

services under the Medicaid state plan, where applicable.

 We are clarifying that with regard to a referral for lost or damaged dentures “promptly”

means that the referral must be made within 3 business days unless there is

documentation of extenuating circumstances.

  • Food and nutrition services (§483.60)

 We are requiring facilities to provide each resident with a nourishing, palatable, well balanced

diet that meets his or her daily nutritional and special dietary needs, taking into

consideration the preferences of each resident. We are also requiring facilities to employ

sufficient staff, including the designation of a director of food and nutrition service, with

the appropriate competencies and skills sets to carry out the functions of dietary services

while taking into consideration resident assessments and individual plans of care,

including diagnoses and acuity, as well as the facility’s resident census.

  • Specialized rehabilitative services (§483.65)

 We have added respiratory services to those services identified as specialized

rehabilitative services.

  • Administration (§483.70)

 We have largely relocated various portions of this section into other sections of subpart B

as deemed appropriate.

 We require facilities to conduct, document, and annually review a facility-wide

assessment to determine what resources are necessary to care for its residents

competently during both day-to-day operations and emergencies. Facilities are required

to address in the facility assessment the facility’s resident population (that is, number of

residents, overall types of care and staff competencies required by the residents, and

cultural aspects), resources (for example, equipment, and overall personnel), and a

facility-based and community-based risk assessment.

 Binding Arbitration Agreements: We are requiring that facilities must not enter into an

agreement for binding arbitration with a resident or their representative until after a

dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute

binding arbitration agreements.

  • Quality assurance and performance improvement (QAPI) (§483.75)

 We are requiring all LTC facilities to develop, implement, and maintain an effective

comprehensive, data-driven QAPI program that focuses on systems of care, outcomes of

care and quality of life.

  • Infection control (§483.80)

 We are requiring facilities to develop an Infection Prevention and Control Program (IPCP)

that includes an Antibiotic Stewardship Program and designate at least one Infection

Preventionist (IP).

  • Compliance and ethics program (§483.85) *New Section*

 We are requiring the operating organization for each facility to have in effect a compliance

and ethics program that has established written compliance and ethics standards, policies

and procedures that are capable of reducing the prospect of criminal, civil, and

administrative violations in accordance with section 1128I(b) of the Act.

  • Physical environment (§483.90)

 We are requiring facilities that are constructed, re-constructed, or newly certified after the

effective date of this regulation to accommodate no more than two residents in a bedroom.

We are also requiring facilities that are constructed, or newly certified after the effective

date of this regulation to have a bathroom equipped with at least a commode and sink in

each room.

  • Training requirements (§483.95) *New Section*

 We are adding a new section to subpart B that sets forth all the requirements of an

effective training program that facilities must develop, implement, and maintain for all

new and existing staff, individuals providing services under a contractual arrangement,

and volunteers, consistent with their expected roles.

Stay tuned.  I will have more forthcoming as survey guidelines come out, implementation is sorted, etc.

September 30, 2016 Posted by | Skilled Nursing | , , , , , , , , , , | Leave a comment

Webinar on Preventing Hospitalizations/Re-Hospitalizations

Next week – Wednesday, October 5 – I am conducting a webinar on behalf of HCPro on the subject of preventing unnecessary hospitalizations.  The program will cover all care transitions with a particular emphasis on inpatient admissions.  Below is a quick summary about the program.

The new quality measures are out, and there is a renewed emphasis on reducing the risk of avoidable hospitalizations and readmissions. Across a number of regulatory elements beginning this year, hospitalization and readmission rates from SNFs will be measured and ultimately factored into the SNF landscape via reimbursement penalties and star ratings.

At the conclusion of this program, participants will be able to: 

  • Identify the steps that lead to readmissions and what can be done to lessen or eliminate the risk 
  • Increase their awareness of the tools available to reduce the risk of readmissions 
  • Use best practices to improve care coordination 
  • Know which key elements produce readmissions and how to limit or remove them, including medication reconciliation, care conference structure/strategy, care pathways, disease management programs, and communication tools 

Registrants get the session content plus handouts which include usable QA tools, care pathways, etc.  Any readers interested in this subject area are encouraged to attend and/or share the link with their colleagues. The program link for registration, etc. is below.

http://hcmarketplace.com/avoidable-rehospitalizations

 

September 28, 2016 Posted by | Skilled Nursing | , , , , , , , , | Leave a comment

The Supreme Court, False Claims Act, and Implications for Providers

Nearing the end of the Supreme Court session, the Court issued an important clarification ruling concerning the False Claims Act in cases of alleged fraud.  In the Universal Health Services case, the Court addressed the issue of whether a claim could be determined as fraudulent if the underlying cause for fraud was a lack of professional certification or licensing of a provider that rendered care related to the subsequent bill for services.  In the Universal case, the provider submitted claims to Medicaid and received payment for services.  The services as coded and billed implied that the care was provided by a licensed and/or qualified professional when in fact, the care was provided by persons not properly qualified.  In this case, the patient ultimately suffered harm and death, due to the negligent care.

The False Claims Act statute imposes liability on anyone who “(a) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; or (b) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.” It defines “material” as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” And it defines “knowingly” as “actual knowledge; … deliberate ignorance; … or reckless disregard of the truth or falsity of the information; and … no proof of specific intent to defraud is required.” The last element is key – no proof of intent to defraud is required.

Though providers sought a different outcome, the initial review suggests the decision is not all that bold or inconsistent with other analogous applications.  The provider community hope was that the Court would draw a line in terms of the expanse or breadth of False Claims Act “potential” liabilities.  The line sought was on the technical issue of “implied certification”; the notion that a claim for services ‘customarily’ provided by a professional of certain qualifications under a certain level of supervision doesn’t constitute fraud when the services are provided by someone of lesser professional stature or without customary supervision, assuming the care was in all other ways, properly provided.  The decision reinforces a narrow but common interpretation of the False Claims Act: An action that would constitute a violation of a federal condition of participation within a program creating a condition where the service provided is not compliant creates a violation if the service was billed to Medicare or Medicaid. Providers are expected to know at all times, the level of professional qualifications and supervision required under the applicable Conditions of Participation.

The implications for providers as a result of this decision are many.  The Court concretized the breadth of application of the False Claims Act maintaining an expansive view that any service billed to Medicare and/or Medicaid must be professionally relevant, consistent with common and known professional standards, within the purview of the licensed provider, and properly structured and supervised as required by the applicable Conditions of Participation.  Below are a few select operational reminders and strategies for providers in light of the Court’s decision and as proven best-practices to mitigate False Claims Act pitfalls.

  • One of the largest risk areas involves sub-contractors providing services under the umbrella and auspices of a provider whereby, the provider is submitting Medicaid or Medicare claims.  In these instances the provider that is using contractors must vet each contractor via proper credentialing and then, provide appropriate and adequate supervision of the services.  For example, in SNFs that use therapy contractors the SNF must assure that each staff member is properly licensed (as applicable), trained to provide the care required, and the services SUPERVISED by the SNF.  Supervision means actually reviewed for professional standards, provided as required by law (conditions of participation), properly documented, and properly billed.  The SNF cannot leave the supervision aspect solely to the therapy contractor.
  • Providers must routinely audit the services provided, independently and in a structured program.  Audits include an actual review of the documentation for care provided against the claim submitted, observations of care provided, and interviews/surveys of patients and/or significant others with respect to care and treatment and satisfaction.
  • Establish a communication vehicle or vehicles that elicits reactions to suspicious activity or inadequate care.  I recommend a series of feedback tools such as surveys, focus groups, hotlines and random calls to patients and staff.  The intent is to provide multiple opportunities for individuals, patients, families and staff to provide information regarding potential break-downs in care or regarding outright instances of fraud.
  • Conduct staff training on orientation and periodically, particularly at the professional level and supervisory level.  The training should cover organizational policy, the legal and regulatory framework that the organization operates within, and case examples to illustrate violations plus remedy steps.

July 24, 2016 Posted by | Home Health, Hospice, Policy and Politics - Federal, Skilled Nursing | , , , , , , , , , , , , , | Leave a comment

SNFs: Strategies to Mitigate Readmission and Rehospitalization Risk

Across a number of regulatory elements beginning this year (May/June through October), hospitalization and readmission rates (to) post-hospitalization from SNFs will be measured and ultimately, factored into the SNF landscape via reimbursement penalties and Star ratings.  Below is a quick summary of where and when the hospitalization/readmission issues come into play.

  • CJR – aka bundled payments for Hip and Knee replacement, began April 1.  The issue here is that readmissions post-hospital discharge count against the required measurement elements of cost and quality across the 90 day episode of care.  The impact is direct to the discharging hospital but in turn, can impact the willingness of hospitals to discharge to an SNF if the readmission risk is outside the regional quality benchmarks.  Poor performance can impact referrals, go forward partnerships and for those SNFs that can and will participate at-risk in Year 2, access to incentive payments.
  • SNF VBP Value Based Purchasing begins in July of this year with the first measurement period continuing through July of 2017.  Rehospitalization rates for SNFs will be measured (all cause, risk adjusted).  Beginning in October 2018, CMS will reduce Medicare A payments by 2% for SNFs that perform on this measure, below benchmark standards.
  • Five Star – in May/June of this year, new measures are added including rehospitalizations (plus hypnotic use, discharge home, decline in ADL status since admission, mobility in room).  The QMs will be rebased to incorporate these new measures.
  • IMPACT Act – Expected in the SNF PPS final rule for 2016 (April, data collection beginning in October 2017) are four new measures including rehospitalization upon admission and 30 days post discharge from the SNF.  The other elements are discharge to community, drug regimen review and average cost per beneficiary during and after the SNF stay.

Though I have cautioned facilities to pay attention to their hospitalizations/rehospitaliztions for some time now, it isn’t too late (almost) to get started; started in earnest!  Below are my top four recommended strategies to employ ASAP (not in any particular order) to mitigate post-discharge hospitalization risk and post-admission rehospitalization risk.

  1. QA Your Transitions: Every hospitalization/rehospitalization requires a QA analysis of the reasons why, whether such reasons were appropriate/inappropriate, what transpired at the hospital, and most important, what could be done (if anything) to change the events leading to the transition.  The latter element is part of the organization’s QAPI and begets staff training, system change, etc.  The key is to do a true root cause analysis.
  2. Staff Education: As my firm works with facilities constantly, we notice that the largest, single reason for care transitions out of the SNF to the hospital (ER, etc.) is a lack of staff competence in assessment and communication with physicians and families.  The inability to present a clear picture of the resident’s current condition, options, monitoring points, etc. creates confusion for the physician and a sense of insecurity for family, precipitating the transition if for no other reason than perceived “safety”. Plenty of tools exist (contact me for resources) from AMDA (physician communication protocols) to INTERACT.
  3. Advance Care Planning: Too often this subject is viewed as gathering advance directives (code/no code status, Living Wills, DPOaHCs, etc.).  While these are important the real crux or guts of this element is the discussion concerning specificity of care decisions, including hospitalization/care transitions.  Based on my and my firm’s experience, better than half of all care transitions to a hospital are avoidable with proper planning.  Up front, clear conversation with patients/residents and families regarding the SNF resources (what can be done in-house, etc.) and the risks of hospitalization can and will reduce hospital transitions (particularly ER visits).  I suggest developing a communication tool regarding the decision(s) and sharing it with staff, physicians and most important, patients and families.
  4. Algorithms and Pathways: These elements take the vagaries out of the care planning and care delivery process, eliminating what can be and typically  are, transition triggers.  For CJR, we built hip and knee pathways.  These translate to standardized careplans, address the advance care planning elements, discharge points, pain, skin/wound, etc. comorbidities.  As these elements are addressed pre-admission and within 24/48 hours of admission, a clear reduction in transition risk is present.  Likewise, build as many comorbidity (common) algorithms as possible. For example, I recommend pain, anti-coagulation, diabetes, CHF, depression, and bowel/constipation protocols as a start.  Depending on the SNF’s admission profile (typical case-mix), others may be more pertinent.  What we know is that too many transitions occur as a result of an unclear game plan and approach to resident/patient care leaving careplanning gaps, communication gaps, and treatment protocol gaps.

Concluding: A few caveats apply.  Reducing readmission and/or rehospitalization risk starts at a core facility/organization level.  My strategies above assume that the SNF has proper/adequate staff levels and adequate resources in terms of a solid therapy program, medical direction and physician staff.  Additionally, the SNF should have (by now) a functioning QAPI program in place.  Without such a program, the core QA function required to understand transitions and complete a root cause analysis is only an exercise.  Finally, one last tip.  Reducing hospitalizations/rehospitalizations is an organization-wide initiative.  It is not solely a nursing or social services function.  Every discipline has a role and when the root causes of transitions are analyzed it becomes clear quickly, how many little or seemingly minor pieces properly detected and addressed, contribute to reducing this risk element.

April 12, 2016 Posted by | Policy and Politics - Federal, Skilled Nursing | , , , , , , , , | 2 Comments

RehabCare, Therapy Fraud and Lessons Not Quite Learned

This last week the Department of Justice and CMS announced a $125 million settlement with RehabCare, a subsidiary of Kindred Healthcare, regarding improper Medicare billing.  As in virtually all cases of a similar nature involving false or improper billing to the Medicare program, this matter began with a whistleblower suit (insiders establishing False Claims Act violations perpetrated by the organization).  What is different in this case or unique by comparison, is that RehabCare is not a “provider”.  It did not actually conduct the billing but as alleged, caused the false or improper claims to occur through a certain set of business practices.

RehabCare has been party to a number of improper Medicare billing settlements and enforcement actions. For example, the Arch Care case in New York (I wrote a post on this case in 2015 at http://wp.me/ptUlY-im). In prior cases, RehabCare was tangentially involved as the contract therapy provider.  The enforcement action was taken against the SNF as the “provider” as opposed to the therapy contractor.  Recall that the Government/Provider relationship is between CMS and the SNF as it is the SNF that holds the provider agreement and ultimately submits the claim for the “improper” services to Medicare.  In this most recent settlement, the Government used the insider information provided RehabCare therapists to direct a “conspiracy” action against the company.  Simultaneous to the larger settlement, the Department of Justice announced four other settlements with nursing homes (SNFs) for improper therapy billing, each involving RehabCare as the therapy contractor.  The settlements ranged from $3.9 million to Wingate Healthcare (Massachusetts and New York) to $750,000 for a SNF operated/owned by Frederick County Maryland.

To my knowledge, this is the first time that the Department of Justice has brought a conspiracy type suit against an organization, alleging an intent to defraud the government via the billings of the actual “provider”.   This is a unique twist in the False Claims Act application (as applied to health care fraud) as it does not involve a party that actually “billed” Medicare – the SNF that contracted with RehabCare filed the claim.  The whistleblowers alleged and the government pursued, a case where the allegations ranged from RehabCare setting unrealistic financial goals for its therapists to not allowing discontinuation of therapy services after the therapist recommended discharge to over-treating and upcoding. And while all these allegations may be true, the fascinating element is that the government took the “brunt” action against RehabCare even though the SNFs involved were technically and legally responsible for making sure that the claims submitted to Medicare were proper, legitimate, etc.  Ultimately, it is the SNF (the actual provider) that is responsible for assuring that the Government is not billed for inappropriate, improper, fraudulent, etc. services.  The False Claims Act nuts and bolts language is below:

(a) Liability for Certain Acts.—

(1)In general.—Subject to paragraph (2), any person who—

(A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
(B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;
(C) conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G);
The application within healthcare fraud cases has traditionally focused on the actual provider as the actor, even if the elements of fraud included the acts of a contractor or the parties acted in collusion.  The reason?  The provider is the party that is charged with “presenting” or “causing to prevent” the false or fraudulent claim.  Arguably, no provider should allow a contractor such as RehabCare to conduct practices within its operations that would create a climate of fraud or cause the SNF to submit improper claims to Medicare.
Admittedly, what remains unknown is how many additional actions with settlements are pending against SNFs (tangential to this case) that have used RehabCare as their contractor.  These types of cases move slowly and in fragmented pieces as each is unique and within itself, complicated and fraught with elements of discovery and valuation (of the financial impact of the claims).  In short, while some have settled, others may be in the process of settlement and will disclose in forthcoming months.
The lessons or takeaway here may in fact, be too late for some.  The curious nature of whistleblower cases and False Claim actions is they emanate without direct disclosure to the provider.  If the government decides to join the claim, it takes over the case and pursues it while the rights of the whistleblower are protected (as is typically initially, though not always, the identity of the whistleblower(s)).  What this means is that any SNF, using RehabCare or not, may already be on the radar or in the queue for a False Claims act case. This being said, SNFs should not delay in immediately understanding and addressing the following.
  • With RehabCare fallen, do not be surprised that organizations like Genesis are next or already in process.  Any provider (SNF) that uses a national therapy provider for contracting purposes should immediately do all of the following.
    • Review the contract between the SNF and the therapy contractor, especially the liquidated damages clauses.  Meet with the contractor’s representatives and openly discuss concerns.  Undoubtedly, assurances that all is “well” will be offered.  Ask for the same in writing and a revisit to the liquidated damages section to re-craft a shared risk provision.
    • Engage a qualified firm to conduct a full audit of the therapy contractor’s practices, a reasonable sample of Medicare claims, and supporting documentation.  Again, for readers, I have resources here for referrals to the best firms.
    • Use a triple-check.  Anyone who needs resources, contact me.
    • Integrate your billing and Medicare RUGs data into your QAPI.  You want to review monthly, your RUGs distribution, EOTs, COTs, lengths of stay, average daily rate, etc.  Benchmark your date and trends.
    • If you haven’t bid your therapy contract within the last two or so years, plan on it.  Again, best practice is to use an outside consultant who knows the therapy side and contracting to assist with the bidding process.
    • Consider, strongly, going in-h iouse or developing a hybrid partnership for your therapy services.  Again I can provide some resources and direction here.  Partnerships can be as beneficial (SNF with hospital, etc.), done right, as in-house programs and again, can go a long way to minimizing the expansive fraud risk and complications that come (historically) via RehabCare, Genesis, etc.

January 17, 2016 Posted by | Policy and Politics - Federal, Skilled Nursing | , , , , , , , , , | Leave a comment

Bundled Payments: Final Hip and Knee Rule

On November 16, CMS issued the final rule for bundled payment demonstration, lower extremity, effective April 1, 2016.  A single payment, made to a qualifying hospital in one of 67 regions/MSAs covers all aspects of the hospital care, the surgery, and any post-discharge, post-acute stay components through 90 days (from initial hospitalization). The payment exclusions include unrelated hospital and Part B costs, unrelated acute and chronic DRGs and drugs outside the episode (clotting factors, etc.).  The original proposal known as CCJR (Comprehensive Care for Joint Replacement) included 75 regions/MSAs.  The final rule whittled the total to 67 excluding regions such as Colorado Springs, Richmond, VA and Las Vegas.

The CJR (eliminate “care”) is the adjunct or next logical progression from the BPCI (Bundled Payment for Care Improvement) project. The BPCI is voluntary.  CMS has foretold policy watchers and providers that this initiative was forthcoming and while comments to the  proposed rule were deep, CMS was determined to move forward.  The sole major concession was a 3 month delay in implementation (April 1 v. January 1).  Among the concerns expressed were;

  • Impact likelihood on home care (negative) as the home health value based purchasing model comes on-line January 2016.  Concern across the industry about adjustment and preparation time given that the two program implementation dates are fundamentally, side-by-side.
  • Lack of preparation time and specifics in the final rule regarding payment.
  • Lack of fraud and abuse clarifications in the rule.  CMS has acknowledged a need to publish guidance and waivers for providers, specifically around physician self-referral and kickbacks (incentives shared between participating Medicare providers in a coordinated care program violate Medicare anti-kickback provisions on a prima facie basis). CMS has provided waivers before to facilitate ACO operation and formation.

The core of the  demonstration program is to clearly, create a model for shared risk and shared savings between providers, targeted at common care events that span acute and post-acute stays/utilization. The fee for service average for hospitalization and recovery ranges from $16,000 to $33,000 (excluding medical/physician care). CMS is targeting $343 million in savings over the 5 year program life.

In order to achieve the targeted savings, the program has some unique twists or elements that are different from the typical fee-for-service model.

  • The three-day/three inpatient overnight rule for coverage in a post-acute environment is waived.  Patients can be admitted or not, surgery performed, and discharged as care and conditions warrant.
  • For SNFs to participate, their star ratings must be no less than 3 stars on the CMS Compare website.  This is already an issue in certain markets where few facilities meet the criteria.
  • The target price for an episode is a blend of historical and regional pricing, discounted by 2%.  If the actual spend is less than the target price, a reconciliation or incentive payment is due PROVIDED, the hospital has met or exceeded (30th percentile nationally in years 1-3, 40th percentile thereafter) the HCAHPS (patient satisfaction measures), hip and knee readmissions and hip and knee complications measures. Any over-spend or failure to meet quality measures equals no reconciliation payment.  Reconciliation payments are effectively the recoup (partial) of the imputed discount to the target price.

The takeaway for post-acute providers is simple, especially as it relates to the thematic shift this demonstration project is foreshadowing: get lean, get good, and get partners. I wrote about the “new era” a few months ago on this site: http://wp.me/ptUlY-iE .  The fee-for-service trend and the Medicare maximization game (highest RUG, longest stay, etc.) is ending.  I have lectured and written for years before this rule was ever finalized that quality is the number one element that SNFs and HHAs must understand, embrace and demonstrate if they wish to thrive and survive.  The CJR demonstrates it via the “star rating” requirement for SNFs. Facilities that haven’t paid attention, are not up to par, will risk being left out.  Improving your star rating is not quick nor is there a gimmick to employ to change the rating or an appeal process available.

In a soon to follow post, I will address the go-forward implications and strategies for post-acute providers, principally SNFs and HHAs, with respect to the CJR.

 

 

December 1, 2015 Posted by | Home Health, Policy and Politics - Federal, Skilled Nursing | , , , , , , , , | Leave a comment