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Homeostasis: Health Care Law Blog

Homeostasis: Health Care Law Blog


PBJ: The Sandwich that Bites Back

Several years ago the U.S. Centers for Medicare and Medicaid Services (CMS) required skilled nursing facilities (SNFs) to report nurse staffing levels using the SNF’s payroll records, in an effort to obtain more accurate information about actual daily nurse presence in SNFs. CMS has collected this Payroll Based Journal (PBJ) information for a few quarters now. CMS uses this data to publically report each SNF’s nurse staffing level on its Nursing Home Compare website and to calculate each SNF’s Five Star Rating. Publication of this PBJ data is part of CMS’ initiatives to keep consumers informed about SNF quality, so that market pressure will incentivize SNFs to improve their performance. But the PBJ data is now going to bite some SNFs through survey enforcement. Read More ›

Where Does the Money Go?

Medicare and Medicaid certified nursing homes are frequently required to pay fines (called “civil money penalties” or “CMPs”) to the U.S. Centers for Medicare and Medicaid Services (“CMS”) when government surveyors find them out of compliance with the Requirements for Participation for Long-Term Care Facilities. It is not uncommon for CMS to assess CMPs in the hundreds of thousands of dollars. Nursing homes sometimes protest that the money would be better spent by them in improving their operations to fix current non-compliance and avoid future non-compliance. On November 21, 2018, CMS announced a new initiative that it claims will promote these goals.  Read More ›

OIG Puts SNF Involuntary Discharges and Transfers Under the Microscope

Increased federal oversight may be on the horizon for skilled nursing facility involuntary transfers and discharges. The Office of Inspector General (OIG)  included in  its 2019 Work Plan reviewing SNFs’ involuntary transfers and discharges, focusing on reviewing whether State agencies have effectively investigated and enforced proper transfer and discharge procedures. Now is the time for SNFs to review their involuntary transfer and discharge procedures to make sure they are in compliance with CMS regulations. Read More ›

What do Hurricanes, Tornadoes, Blizzards, Floods, Wildfires and Earthquakes all have in Common?

Obviously, they are all natural disasters that climate scientists believe will increase in severity and intensity in the coming years. And they are all events that nursing homes and assisted living facilities (and all Medicare/Medicaid certified health care providers) are legally required to prepare for in order to protect their residents and patients. More pointedly, though, they are all events which the U.S. Senate Finance Committee’s Minority Staff (Minority Staff) believes are not presently adequately addressed by nursing homes, assisted living facilities, or the U.S. Centers for Medicare and Medicaid Services (CMS). The Minority Staff made this clear in a blistering report issued on November 2, 2018, entitled Sheltering in DangerRead More ›

The U.S. Department of Health and Human Services Launches New Opioid-Related Initiatives

Following President Trump’s signature on broad federal legislation to combat the opioid crisis in the U.S., the U.S. Department of Health and Human Services (DHHS) announced two initiatives to further reduce opioid-related deaths. On October 25, 2018, DHHS’ Office of Inspector General (OIG) expanded its Medicare Strike Forces to address improper opioid prescriptions, and the DHHS’ Office for Civil Rights (OCR) published Guidance to prevent discrimination against individuals seeking treatment for opioid use disorder. Read More ›

Back to the Old Regime: The DOJ’s Criminal Division’s Newest Compliance Approach

On October 12, 2018, Assistant Attorney General Brian A. Benczkowski spoke at the NYU School of Law where he announced new guidelines regarding the procedures governing corporate compliance and monitorships.[1] While most of the attention has been on the new criteria for selecting corporate monitors, AAG Benczkowski also announced that the DOJ will not be hiring new corporate compliance counsel within the Criminal Division, a break from the practices of the previous administration. Read More ›

CMS to Enhance Oversight of Accrediting Organizations

On October 4, 2018, CMS informed the public about several new enhancements to its oversight of accrediting organizations (AOs) and increased transparency regarding AO Performance. Health care providers that obtain Medicare certification via deemed status may find that AOs will be more conscientious than ever about ensuring that the provider satisfies all Medicare Conditions of Participation (COP) in addition to all AO internal standards. Read More ›

OIG Criticism of IRF Practices May Generate Enhanced CMS Scrutiny of IRF Medicare Claims

In September 2018, the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) issued a report criticizing in-patient rehabilitation facilities (IRFs) for improper claims to Medicare. SeeMany Inpatient Rehabilitation Facility Stays Did Not Meet Medicare Coverage And Documentation Requirements, A-01-15-00500.” The report estimated that in 2013 Medicare paid IRFs $5.7 billion for care that was not reasonable and necessary. OIG recommended that CMS increase its oversight of IRF compliance with Medicare coverage and documentation requirements, and CMS concurred. As a result, IRFs can expect enhanced CMS scrutiny of its claims. Read More ›

Reading the Tea Leaves: Understanding OIG Priorities

The Office of Inspector General of the U.S. Department of Health and Human Services (“OIG”) issues work plans (“Work Plan”) that addresses priority areas and emerging issues. For many years, the OIG published its Work Plan every two years with intermediate updates published once or twice each calendar year. Beginning on June 15, 2017, however, the OIG changed its practice and publishes the Work Plan on a monthly basis. These monthly updates are published through the OIG’s Work Plan website. Read More ›

New Michigan Medicaid OIG Post-Payment Audits Coming

On August 15, 2018, the Michigan Department of Health and Human Services (MDHHS) announced the initiation of post-payment claims audits to identify and recover overpayments made to Medicaid providers. These audits will be overseen by the MDHHS Office of Inspector General (OIG) and will be conducted by AdvanceMed, the Midwestern Unified Program Integrity Contractor (UPIC) for the federal Centers for Medicare & Medicaid Services (CMS).

The audits will come in two forms: automated and complex. Automated audits will not require review of clinical records, while complex ones will. AdvanceMed may not request more than 150 records per request, or 500 in a three-month period by billing NPI. Providers will not be reimbursed for the cost of producing requested records. In addition to record reviews, AdvanceMed may conduct interviews of providers and beneficiaries, and on-site visits. Read More ›