AHLA Fraud and Compliance Forum

inner-harborI am very happy to have attended the AHLA Fraud and Compliance forum in Baltimore last week. This three day seminar was filled with industry professionals, including agents and representatives from the United States Attorney’s office, OIG, United States Attorney General’s office and of course CMS. The attendees were treated to very interesting conversations by these governmental employees and healthcare attorneys.
My takeaways for you:

1. The Yates Memorandum — is causing the government to look consistently and carefully at INDIVIDUAL LIABITLIY for owners, officers and high level employees. Someone has to make the false claim.

2. Compliance Plans.  It is time for your compliance plans to be in place, followed and updated.

3. QUI TAM.  Qui Tam Actions are on the rise . It is important that your employees are trained, and that when reports of fraud, kickback or Stark violations — or even mistakes amounting to overpayments are addressed quickly. Moreover, it is imperative that you follow up with the employee who brought the issue to your attention in the first place.



L’Hommedieu admitted to the Kansas Bar

We are very pleased to announce that Mary L’Hommedieu has been admitted to the Kansas Bar. L’Hommedieu & McGrievy continues to strive toward serving our clients needs, and we are happy to now be able to better serve our healthcare clients in Kansas. fullsizerender-2

We work closely with nursing home and healthcare businesses  in Kansas and this admission will allow us to identify and address State business and regulatory issues.  We are pleased to  provide general counsel oversight for our healthcare clients and to continue to work with valued local counsel.

SNFs must update policies on social media and photography

social_media_network_610In an August 5, 2016 memo to State Survey Agency Directors, CMS announced plans to crack down on nursing homes and their employees who take demeaning photographs and videos of residents and post them on social media.

  • Have your policy ready, and your training complete BEFORE your next survey!

Effective immediately, State Agencies must require survey teams to request and review facility policies and procedures that prohibit staff from taking keeping and/or distributing photographs and recordings that demean or humiliate a resident.  CMS requires surveyors to ask for the policy and training documentation in the next Traditional or QIS survey.

The memo also calls on state officials to quickly investigate such complaints and report offending workers to state licensing agencies for investigation and possible discipline against employees, administration and the governing body.

“Nursing homes must establish an environment that is as homelike as possible and includes a culture and environment that treats each resident with respect and dignity,” said the memo signed by David Wright, director of the CMS survey and certification group. “Treating a nursing home resident in any manner that does not uphold a resident’s sense of self-worth and individuality dehumanizes the resident and creates an environment that perpetuates a disrespectful and/or potentially abusive attitude towards the resident(s).”

CMS defines nursing home staff to include employees, consultants, contractors, volunteers, and other caregivers who provide care and services to residents on behalf of the facility.  So make sure each of these groups is educated on your updated policy.

You can read the memo in its entirety here:

If you need assistance in developing a policy or providing adequate training, call Mary L’Hommedieu before your next survey at 216-635-0017.

A New and Improved Overtime Rule

The Department of Labor issued a final rule that raises the salary threshold for overtime pay, becoming effective on December 1, 2016. This final rule makes two important changes to the current rule regarding overtime: (1) the standard to determine who is eligible for overtime is clearer and (2) more people now qualify for overtime protection.

While the current salary threshold is just $23,660, a 2014 order from President Obama led the Department of Labor to update the threshold to $46,476. Starting in December, anyone making less than $46,476 must receive pay for any overtime hours they work. This new threshold adds protections to 4.2 million workers across the United States. Additionally, the final rule updates the salary threshold every three years, strengthens protections for salaried workers who are entitled to overtime, and clarifies the standard used to determine who qualifies for overtime pay.

Employers can adapt to meet this new standard in numerous ways. One option is to pay workers under the threshold for their overtime work at a rate of time and a half.  The employer alternatively could choose to raise worker salaries so they fall above the new threshold of $46,476. To avoid altering pay whatsoever, employers can shift responsibilities to ensure that all workers only have to work 40 hours per week.

This rule benefits both employers and workers alike—the rules are clearer for employers to follow and provide middle class workers with either more money or more free time. Visit the Department of Labor’s website at https://www.dol.gov/featured/overtime/ or contact our office for more information.

CMS Has Added a New Five-Star Ratings Tool to Help Patients Compare and Choose Among HHAs

CMS has added a five-star rating comparison tool to the Home Health Compare system, to help patients assess patient experiences with Home Health Agencies.

The star ratings are derived from the Home Health Care Consumer Assessment of Healthcare Providers and Systems (HHCAHPS) survey, a national, standardized, 34-item survey specifically designed to measure the experiences of people receiving home health care from Medicare-certified home health agencies (HHAs). The HHCAHPS survey is conducted for HHAs by approved HHCAHPS Survey vendors.

The new tool provides (HHCAHPS) survey star ratings for HHAs in the following categories: (1) care of patients; (2) communication between providers and patients; (3) specific care issues; (4) overall rating of care provided by the home health agency (i.e., an HHCAHPS global component); and (5) Survey Summary Star rating.

Although there are only 6000 HHAs with care experience star ratings at this point, CMS will regularly add and update the website to add more agencies.

Take a look for yourself: https://www.medicare.gov/homehealthcompare/search.html

HHS says 60% of Healthcare.gov users renewed coverage

AHLA report: The Wall Street Journal (12/31, Radnofsky, Subscription Publication) reports that the Obama Administration said Wednesday that about 3.6 million HealthCare.gov users returned to the site to renew their health plans before a mid-December deadline, and that about 2.4 million customers had their coverage automatically renewed. HHS Secretary Sylvia Burwell said in a statement that “Millions of consumers that had 2015 coverage—an impressive 60 percent—came back to HealthCare.gov to update their information, explore the options available for 2016 and select the plan that best fits their needs.”
Last year, the Washington Times (12/31, Howell) reports, about 40 percent of customers returned to HealthCare.gov to shop for new plans. The article notes the Obama Administration has “urged enrollees to shop around to improve their chances of getting a good deal.”
Overall, more than 8.5 million people signed up for coverage on the Federal marketplace from Nov. 1 through Dec. 26, Bloomberg News (12/31, Edney) reports. The article adds that “Jan. 15 is the last day to enroll or change plans for coverage starting Feb. 1, and Jan. 31 is the last day for coverage starting March 1.”

Input needed in developing new Quality Measures for 5 Star Program

The Centers for Medicare & Medicaid Services (CMS) has contracted with RTI International to develop new quality measures for nursing facilities to be used in their five-star rating program. In part of its development and maintenance process, CMS is requesting that interested parties submit comments on the candidate measures.

The project objectives are to develop new measures that assess nursing home quality. The project includes conducting statistical testing to determine the specifications for the numerator and denominator, to identify exclusion criteria, and to adjust for resident characteristics associated with outcomes.

To help achieve these objectives, CMS and RTI International are soliciting public comments on the following candidate nursing home quality measures:
• Percentage of Residents Whose Ability to Move In and Around Their Room and Adjacent Corridors Declined (Long Stay)
• Prevalence of Antianxiety or Hypnotic Medication Use (Long Stay)
• Percentage of Residents Who Developed Delirium after Admission and were Discharged with Symptoms (Short Stay)
• Percentage of Residents with Functional Improvement (Short Stay)

They are seeking public comments from a mix of subject matter experts, including those with a clinical background and those with technical expertise in quality measurement. Consumer perspective is also being requested. The perspective of consumers is important in ensuring that the measures accurately address concerns from many points of view.

All public comments must be submitted to CMSNursingHomeQM@rti.org. Comments are due by May 25, 2015.

Health Providers and Cyber-Security

As the digital age continues to evolve, businesses continue investing in critical data infrastructure. Companies hope to capture the latest efficiencies in order to attain compliance and find an operational advantage over the competition. And yet, while honest people continue to invest in their e-infrastructure with the best of intentions, criminals continue to find ways to penetrate security, swipe data, and make life miserable for their victims.

Recent media reports indicate that healthcare providers have become popular targets for data heist as the hijackers are now targeting medical records. The Ponemon Institute recently released a study showing that criminal attacks against health care providers have more than doubled in the last five years alone. Each attack brings costs to the victim organization, possibly including fines, notification efforts, damage mitigation, and data recovery work. The Ponemon study reported that an average data breach may cost healthcare providers as much as $2.1 million dollars per occurrence. Sadly, many of the healthcare institutions do not have sufficient controls in place to detect and prevent these breaches.

According to another report recently published, criminal attacks are now the leading cause of healthcare data breaches, replacing lost computer hardware. This scary trend is expected to endure as the nation continues to implement the electronic medical record requirement of the Affordable Healthcare Act.

State and federal law have been addressing the problem by adopting laws that denote security requirements and response steps, should an attack be successful. The onus is clearly on the providers to do everything possible to prevent these invasions and to aid in recovery once they occur. If you believe your organization might be at risk, or if you have questions about compliance, please contact us today.

Providers Cannot Sue States for Higher Medicaid Rates

The Supreme Court recently (March 31, 2015) ruled by a 5-4 margin that “ neither the Constitution nor federal law authorizes doctors and other health-care providers to go to court to enforce the law’s directive that the reimbursement rates set by states be ‘sufficient to enlist enough providers so that care and services are available’ to Medicaid recipients just as they are to the general population.” The case involved two home health care providers suing the State of Idaho, saying it set reimbursements unlawfully low. Chief Justice John Roberts was joined by Justices Antonin Scalia, Clarence Thomas, Stephen Breyer, and Samuel Alito in ruling against the providers.

The claim maintained that Idaho was unfairly keeping Medicaid reimbursement rates at 2006 levels, despite studies showing that the cost of providing care had gone up. Lower courts agreed and the increased reimbursements cost to the state an additional $12 million in 2013.

The Justices ruled that Federal law empowers only the Secretary of Health and Human Services to withhold Medicaid funds if a state does not comply with the law’s funding requirements. Justice Scalia, writing for the majority, said the section of the law that requires states to maintain “sufficient” Medicaid reimbursement levels was written too broadly too allow for private lawsuits, calling it “judicially unadministrable.”

Justices Sonia Sotomayor, Anthony Kennedy, Ruth Bader Ginsburg, and Elena Kagan dissented. Sotomayor wrote in the dissenting opinion, “Now it must suffice that a federal agency, with many programs to oversee, has authority to address such violations through the drastic and often counterproductive measure of withholding the funds that pay for such services.”

The aftermath of the Supreme Court’s decision is seen by some as a blow to hospitals who hold the position that Medicaid rates are not covering their costs. The American Medical Assn., the American Dental Assn. and the American Hospital Assn. all had urged the court to protect Medicaid from state cutbacks. Some alarms have been risen about the potential difficulty of Medicaid beneficiaries to find or retain doctors. Michael Gerardi, MD, president of the American College of Emergency Physicians supported that notion with his comment — “Providers have rent and mortgages to pay and unless there are adequate rates, patient access to care will get severely limited.”

Providers will now will have to take any objections to Medicaid rates to HHS.

Changes to CMS Nursing Home Quality Metrics

Changes were made to nursing home quality metrics by the Centers for Medicare & Medicaid Services on February 20, 2015 . These changes resulted in immediate ratings changes on the CMS Nursing Home Compare website.

This adjustment in quality standards comes in wake of criticism that ratings were inflated and often not accurate. Revamped assessments include measures of facility usage of anti-psychotic drugs (risks for older adults, in particular those with dementia), use of more refined metrics to measure staffing levels, and quality measures (such as percentage of patients with pressure sores). Advocates for patients hailed the changes as long overdue, but the nursing home industry voiced concern that consumers could find the changes confusing.