Government Issues

A client recently asked me to review its fall policies and procedures as they relate to the standard of care.   Because that project was on my mind, the new training modules for nurse aides in long term care that were recently published by the Agency for Healthcare Research and Quality (AHRQ) caught my eye.  The three published modules are:

  1. Module 1: Detecting Change in a Resident’s Condition
  2. Module 2: Communicating Change in a Resident’s Condition; and
  3. Module 3: Falls Prevention and Management

Each module has an instructor’s guide and a student workbook that includes training materials, summaries and “Pearls and Pitfalls” to help staff become more aware of residents’ needs.   For example, the module on falls includes a mnemonic checklist “HEAR ME” to help prevent falls in the facility:

  • Hazards in the environment.
  • Educate residents.
  • Anticipate residents’ needs.
  • Round frequently.
  • Materials and equipment.
  • Exercises and ambulation.

Module 1 notes that the elderly do not exhibit the same signs and symptoms of illness that are seen in younger persons.  Therefore, identification of subtle changes can alert staff to a serious illness.  The AHRQ notes the top 12 changes in residents are:

A.  Physical Changes: Walking; Urination and bowel patterns; Skin; Level of weakness; Falls; and Vital signs.

B.   Non- Physical Signs: Demeanor, Appetite, Sleeping, Speech, Confusion or agitation, complaints of pain.

Our Insight. Your Advantage.   Much of the material will not be new to many providers.  However, use of the training modules developed, and following the steps advocated, by the AHRQ will provide strong evidence that the provider’s care was within the standard of care.   Long term care facilities that incorporate the AHRQ’s training standards into their care will be ahead of the game in number of areas such as:

  1. Regulatory compliance;
  2. Limiting exposure to civil malpractice;
  3. Reimbursement matters.

The Department of Health and Human Services Office for Civil Rights (OCR) recently released the protocol it developed as a guideline for conducting the HIPAA privacy, security and breach notification audits mandated by the Health Information Technology for Economic and Clinical Health (HITECH) Act enacted in 2009. The OCR launched the audit program in 2011 and developed the protocol based on the first 20 audits completed under the program. Three of the initial audits were performed on group health plans, highlighting that employer-sponsored group health plans are subject to the Health Insurance Portability and Accountability Act (HIPAA) as covered entities and are subject to audit under the protocol. The audit program represents a significant shift in HIPAA enforcement from the largely reactive, complaint-based enforcement of the past to proactive compliance monitoring.

The pilot phase of the audit program began in November 2011 and is expected to include audits of 115 covered entities by December 2012. HITECH extended HIPAA compliance requirements to business associates and, therefore, business associates are expected to be included in the audit program following publication of the final HITECH regulations. The OCR indicated that funds have already been appropriated to carry out the audit program in 2013 and 2014.

HHS and DOJ today announced that Federal law enforcement is teaming up with private insurance organizations in the fight against health care fraud.  While the details of how this partnership will work are unclear, the press releases issued by both DOJ and HHS indicate that the private and public sectors will share information with each other

In the wake of the U.S. Supreme Court’s June 28, 2012, decision upholding the constitutionality of the 2010 Patient Protection and Affordable Care Act, employers who had been awaiting the decision should now focus on compliance. We expect additional guidance will be released to implement several pending provisions, including those related to the 2014 employer

On June 18, 2012, the Office of Inspector General for the Department of Health and Human Services (OIG) published a notice in the Federal Register seeking comments and recommendations on how best to revise its self-disclosure protocol to make it more useful in today’s health care regulatory environment. This should come as welcome news to the healthcare provider community because OIG’s protocol was first established in 1998, when the healthcare fraud enforcement landscape was much different. Specifically, the government’s investigation and pursuit of health care fraud has substantially increased over the last 14 years. 1998’s total recoveries from health care fraud of under $500 million compared to last year’s total recoveries of $4.1 billion are good evidence of that change.

The Federal Register notice mentions that since 1998, OIG has resolved over 800 disclosures and recovered over $280 million to the Federal health care programs. These high numbers are likely due in large part to the benefits health care providers and practitioners derive from self-disclosing, namely a lower multiplier on damages (approximately 1.5) and no requirement for a Corporate Integrity Agreement (CIA) in exchange for OIG’s highly sought after exclusion release. For cases settled after an affirmative investigation by the government – rather than a voluntary disclosure – healthcare providers should expect OIG, usually in conjunction with the Department of Justice (DOJ), to demand at least a 2.0 multiplier on the single damages (overpayment) amount. As an example, if the government determines that you received $500,000 in reimbursement that you were not entitled to, OIG would likely settle the self-disclosed matter for a 1.5 multiplier, or $750,000.  However, if the settlement is pursuant to an affirmative investigation and not a voluntary disclosure, OIG and DOJ would likely demand at least “double damages,” or $1 million.

As many may already know, CMS is transiting most Texas providers from Trailblazer to Novitas Solutions, Inc. (Novitas) as part of the MAC JH transition.  With this transition, Novitas requires new Electronic Funds Transfer (EFT) form (CMS-588) be completed and submitted for ALL practices and providers.  A notice should arrive to the providers during the

The Alaska Department of Health and Human Service, the state’s Medicaid agency, has agreed to pay the U.S. Department of Health and Human Services (HHS) $1.7 million to settle possible violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security Rule.  According to a press release issued by the Office of Civil

Another major drug company agreed to settle with the Department of Justice (DOJ). GlaxoSmithKline LLC (GSK) agreed to pay a historic $3 billion and plead guilty to resolve its alleged criminal and civil liability arising from the company’s promotion of certain prescription drugs, failure to report certain safety data, and its civil liability for alleged

Is Your Organization Due for Re-certification by the Texas Medical Board?

If your organization is certified as a non-profit health corporation (formerly known as 5.01(a)s) under the Texas Occupations Code 161.001, your organization is required to submit a biennial report to the Texas Medical Board (TMB). For certified non-profit health organizations that were originally certified

On February 22, 2012, the Supreme Court in Douglas v. Independent Living Center of Southern California vacated and remanded to the Ninth Circuit a series of cases that challenge provider reimbursement cuts in California’s Medicaid program.  At issue in the case was whether providers and recipients had standing to sue state officials under the Supremacy