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Emily Solum

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Emily focuses her practice on government reimbursement and compliance issues that affect hospitals, providers, pharmacies and other healthcare clients.

 

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The Affordable Care Act mandated that the Centers for Medicare and Medicaid Services (“CMS”) establish risk categories for Medicare enrollment, which are used by CMS to determine what level of scrutiny to give provider enrollment applications, which includes initial enrollment, change of ownership (“CHOW”) applications, and revalidations.  Three risk categories were subsequently created under 42 CFR § 424.518: limited, moderate, and high. Providers in the limited risk category are subject to the lowest scrutiny and those in the high risk category are subject to the most scrutiny.

Hospice Insights

In Part II of our two-part series on ALJ hearings, Husch Blackwell’s Meg Pekarske unpacks strategies for winning with colleagues Bryan Nowicki, Emily Solum and Erin Burns. They explore what it means to be well-prepared and who should be on your team. They also share tips for overcoming the most common hurdles to…

By now, everyone operating a skilled nursing facility knows about CMS’ 2016 overhaul of the Requirements for Participation for Long-Term Care Facilities (“RoPs”).  The final rule amending the RoPs was published on October 4, 2016.  See 81 Fed. Reg. 68688 (Oct. 4, 2016).  Many of the changes made by CMS do not impose new requirements on facilities, but instead clarify existing requirements.  While CMS has been implementing the various changes in three phases over a three-year period, facilities should by now have implemented or taken steps to implement all of the new requirements.

We have reviewed the new RoPs and guidance documents issued by CMS to determine how the changes impact nursing facility admission agreements.  There were changes or clarifications to a number of subjects that impact such agreements, including: resident discharge requirements, resident representative requirements, selection of attending physicians and other health care providers, room transfer and roommate requirements, visitation rights, facility liability for resident property, bed hold policies, etcetera.

In late February of this year, an employee at an independent living facility in Bakersfield, California was asked by a 911 dispatcher to begin CPR on an 87-year-old resident.  Despite the 911 dispatcher’s pleas, the employee refused.  The employee was allegedly following a facility policy that, in the event of a health emergency, the staff is to immediately call EMS for assistance and wait with the resident. The residents are informed of and agree to this policy on admission. The resident ultimately passed away.  Although the resident’s family expressed satisfaction with the manner in which the facility handled the situation, the situation generated a great deal of negative publicity. This situation also caused many assisted living facilities (“ALFs”) to question whether they are required to provide CPR. Unlike skilled nursing facilities, ALFs provide a lower level of care to their residents and often do not have nursing personnel on staff 24-hours per day.

The answer to the question of whether an ALF can have a policy like the one at issue in the California situation depends largely on state law.  At least 18 states have explicit laws requiring CPR-trained staff members in ALFs.  Oregon recommends CPR training, but does not require it.  Montana law provides that CPR-trained staff need only be on duty if the facility offers CPR, impliedly authorizing a “no-CPR” policy.  Kentucky is similar but more explicit:  ALFs must train staff on CPR “unless the policies of the [ALF] state that this procedure is not initiated by its staff….” 

Cyber security is on everyone’s mind.  President Obama signed an executive order in February aimed at increasing protection of our nation’s critical infrastructure, while HHS released its new HIPAA mega rule in January (effective in March) in an effort to strengthen the security of electronic health records.  As providers work to update their HIPAA policies…

President Barack Obama signed the American Taxpayer Relief Act of 2012, often called the “fiscal cliff” agreement, on January 2, 2013. Buried in the 59 pages of the act is a seven-line amendment to Section 1870 of the Social Security Act. This section bars recovery of overpayments from providers who are “without fault” and automatically deems a provider to be without fault three years from the year in which the original payment was made (unless there is evidence of fault). The three-year “without fault” limitation provision was enacted in 1972. Without much notice, the fiscal cliff deal extended this to five years.

The push for extension of the limitation began when the Department of Health and Human Service’s Office of Inspector General (OIG) issued a report recommending to the Centers for Medicare & Medicaid Services (CMS) that it pursue legislation to extend the statute of limitations. (See OIG, Obstacles to Collection of Millions in Medicare Overpayments.) This report blamed the time limitations on reopening and recovery of payments (four years and three years, respectively) as the reason why approximately $330 million in overpayments could not be recovered by CMS. The OIG also concluded that CMS’ inadequate guidance and monitoring of contractors was to blame. The Congressional Budget Office (CBO) has issued a report estimating that $500 million would be added to the federal treasury by 2022 as a result of the statute of limitation change. (See CBO, Detail on Estimated Budgetary Effects of Title VI.)

The biggest question for providers is how to deal with this change going forward. The following illustration demonstrates how the three-year limitation period applied: Provider was notified on February 22, 2009, that it had been paid for services provided to beneficiary. On January 2, 2013, the contractor determined that provider was overpaid for these services. If there was no evidence that provider acted fraudulently, this overpayment could not be recovered because under the statute of limitations the right to do so expired on December 31, 2012. Had the contractor determined that the provider was overpaid on any date prior to December 31, 2012, it would have been recoverable. (See Medicare Financial Management Manual, Chapter 3, Section 80.1.) Accordingly, any payments made in 2009 or before were not recoverable as of January 1, 2013.