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Michael R. Crowe

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Mike's practice focuses on health care, administrative law, nursing homes, assisted living, home health, managed care, hospitals, hospital districts, Medicare, Medicaid, CHIP, trade associations, health care programs, and health care consulting.

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nursing facilities

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.

Skilled Nursing

Background  

In direct response to the significant challenges experienced by long term care (LTC) facilities throughout the COVID-19 pandemic, the Biden-Harris Administration announced its commitment to improving safety and quality of care. During the March 1, 2022 State of the Union address, President Biden reaffirmed the Biden-Harris Administration’s commitment to protecting residents and staff of nursing homes. The Biden-Harris Administration has since taken steps to establish new minimum staffing ratios within nursing or skilled nursing facilities (SNFs), increase scrutiny of poorly performing nursing homes, and improve quality care transparency for customers seeking a SNF.

Nursing Facilities

The Department of Health and Human Services (“HHS”) announced on August 7th details of the next CARES Act-authorized nursing home Provider Relief Fund (“PRF”) distribution. The PRF distribution will total $5 billion, and will be used to protect residents of nursing homes and long-term care facilities from the impact of COVID-19.

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The Texas Health and Human Services Commission (“HHSC”) announced on August 6th that limited visitation would be allowed at certain nursing homes and long-term care facilities throughout the state. Nursing homes and long-term care facilities must submit a form to their LTCR Regional Director to be permitted to allow limited visitation. Permitted nursing facilities may allow outdoor visits, window visits, vehicle parades, and compassionate care visits. Permitted long-term care facilities may also allow plexiglass indoor visits, provided that their visitation booth is approved by HHSC. Conditions for approval are listed in the HHSC LTCR Provider Letter.

Executive Order GA-40

On June 19, 2020, the Texas Department of Insurance adopted final rules specifying patient notice and election requirements in order for out-of-network providers to balance bill. The final rules replace similar emergency rules that were adopted on December 18, 2019.

Under the new rules, which are meant to implement legislation passed in 2019 by the Texas Legislature, out-of-network providers are prohibited from Balance Billing for nonemergency services unless a patient elects, in writing, to obtain the service from the out-of-network provider. The patient’s election is only effective if the provider satisfies the following notice and disclosure requirements: (1) the patient is provided with a “meaningful choice between an in-network provider and an out-of-network provider,” (2) the patient is not “coerced” into choosing the out-of-network provider, and (3) the patient is provided with a written notice and disclosure. The notice and disclosure statement must be signed by the patient at least 10 business days before receiving any care.[1]

On June 9 the Department of Health and Human Services announced that it will distribute $15 billion to Medicaid and Children’s Health Insurance Program (“CHIP”) providers. HHS spokesman Eric Hargan noted that this distribution will be focused on the approximately 275,000 providers who care for Medicaid and CHIP recipients but who did not receive funds in HHS’ April distribution of $50 billion. Mr. Hargan specifically mentioned providers such as dentists, pediatricians, assisted living facilities and behavioral health provider such as opioid treatment programs. Medicaid/CHIP providers can apply for the funds through the enhanced Provider Relief Portal by providing data that will determine their payments, including information concerning their payer mix to inform future distributions to providers who serve a large portion of Medicaid patients or provide a large amount of uncompensated care.

For long-term care (“LTC”) facilities such as assisted living facilities and nursing homes, the high risk of spread once coronavirus disease 2019 (“COVID-19”) enters a facility  means such facilities must take immediate action to protect residents, families, and healthcare personnel from severe infections, hospitalizations, and death.  One such action that many States are taking is mandatory testing for the residents and employees of LTC facilities.  Specifically, several states, including West Virginia, South Carolina and Florida, are now requiring mandatory testing of residents and employees of skilled nursing and assisted living facilities.  Other states have similar proposed legislation in the works, including Pennsylvania, and it is likely that the number of states implementing such measures will continue to grow in the coming weeks and months. The White House has also indicated that the federal government may mandate testing nationwide for all nursing home residents and employees. While widespread testing of residents is an appropriate measure to protect the populations most vulnerable to the disease, mandatory testing raises the issue of whether and how to obtain informed consent from residents, many of whom use a medical powers of attorney (“MPOA”) for decisions regarding their care.

On April 2, 2020, at the direction of the president, CMS issued additional guidance [https://go.cms.gov/2V1QBdM] regarding the mitigation of the spread of COVID-19 in the country’s nursing facilities. The guidance was apparently issued in response to recent onsite observations by CMS and CDC experts in nursing facilities. In short, the guidance addresses five key issues:

Since February 6, 2020, the Centers for Medicare and Medicaid  (CMS) issued official Coronavirus (COVID-19) guidance for health care providers in all care settings to implement in an effort to control the rate of COVID-19 transmission. However, a special focus is on nursing facilities because these facilities house the country’s population most susceptible to COVID-19. In the CDC’s March 18, 2020 Morbidity and Mortality Weekly Report (MMWR), the agency highlights the COVID-19 outbreak at a nursing home in King County, Seattle, Washington, in which 81 of the 130 residents (62%) contracted COVID-19, and 49 of those residents were hospitalized. The median age of the infected residents was 81 years old. To date, 80% of deaths related to COVID-19 are of persons 65 years old or greater.  Therefore, it is imperative nursing homes take drastic measures to reduce the risk of severe illness or death associated with COVID-19. Husch Blackwell’s answers to the Frequently Asked Questions below follow the current CDC and CMS guidance which outlines these drastic measures.

On March 20, 2020, the Texas Health and Human Services Commission issued Provider Letter 20-23, providing clear guidance to Texas’ assisted living communities on how to reduce the risk of the spread of COVID-19. Finding that; “…COVID-19 presents a significant health and safety risk to ALF residents” and that “the best method of protecting [residents] from infection is to keep the infection out of the facility”, the provider letter adopts guidelines that are similar to those put in place several days ago for nursing facilities. Significantly, the letter determines that; “[a] resident’s right to visitation can be restricted in order to protect the health and safety of residents”.