September 17, 2014
3800 VerMaas Place, Suite 200
Lincoln, NE 68502 (map)
Phone: 402.475.7011
Toll Free: 800.714.3439

Updates to F-Tags in State Operations Manual

The Centers for Medicare and Medicaid Services (CMS) has made revisions to twenty F-Tags in the State Operations Manual (SOM).  The changes reflect the Survey and Certification (S&C) policy memos issued from October 2003 through May 2014.

CMS states it is committed to revising and updating the SOM which includes clarifications to guidelines and changes to acceptable standards of practice as it relates to the regulatory guidance.  An advanced copy of the manual can be found here:  http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-14-37.pdf.

Among the F-Tags updated are F208-Admission Policy, F221-Physical Restraints, and F441-Infection Control.  The changes to F208 are related to the January 8, 2004, S&C memo that sets out to clarify whether or not nursing homes may use promissory notes or deposit fees as conditions of admission.

CMS changed F221 to reflect the clarifications set out in the S&C memo of June 22, 2007, that clarifies the phrases “removes easily” and “freedom of movement”.  The updated guidance set out in F441 comes from four S&C memos dating from 2010 through 2013, and reflect clarifications to the use of insulin pens in the facilities, safe use of single dose/single use medications, point-of-care devices such as finger-prick devices and glucose meters, and laundry and infection control, specifically laundry detergents with/without antimicrobial claims, use of chlorine bleach, water temperatures and maintenance of laundry equipment.

Currently only the advance copy of the revisions available and CMS does indicate that the final version may differ slightly.

Settlement Conference Facilitation Pilot Announced

The Centers for Medicare & Medicaid Services (CMS) has announced a new pilot program that will hopefully alleviate the backlog of Medicare Part B claims that have been appealed to the Administrative Law Judge level.  Settlement Conference Facilitation will be a pilot alternative dispute resolution process by which the appellant and CMS will be brought together to see if they can agree upon a settlement using a settlement conference facilitator.

The facilitator would use mediation principles in helping the two parties come to a settlement.  The facilitator, an employee of the Office of Medicare Hearings and Appeals, will not be a finder of fact and won’t make any determinations regarding the claimed issues, rather the facilitator’s purpose will be to help each side to see the strengths and weaknesses of their cases.

Settlement Conference Facilitation is only for appeals of Medicare Part B Qualified Independent Contractor decisions at this time.  Beneficiary appeals of QIC decisions are not eligible in this pillow as those appeals are being prioritized for a hearing before an administrative law judge.

For more information on what appeals are eligible and how to go about requesting Settlement Conference Facilitation, go to: http://www.hhs.gov/omha/settlement_conference_facilitation_pilot.html

Are You Making Sure Your Electronic Devices Are Secure?

  Do you know where your work laptop is?  Do you get work e-mail on your smartphone?  Are both sufficiently password protected?  What about your business associates?  Do you believe they sufficiently protect all protected health information they have in their possession?  It would probably be a good idea to take another look at your electronic device security because the theft of laptops and other devices continues to be the leading cause of information breaches.

   The Health Insurance Portability and Accountability Act requires healthcare providers to disclose to the government whenever the protected health information of at least 500 peoples has been compromised.  According to a June 11, 2014, report by the Department of Health and Human Services Office of Civil Rights for the years 2011 and 2012, the theft of devices such as laptops accounts for nearly half of those reports.  Some of the largest breaches involved business associates, including a 2011 incident in which nearly 5 million people were affected.

   To read the full report, click on the following link:  http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/breachreport2011-2012.pdf

Mississippi Case Highlights Issues of Resident Privacy

         In Mississippi, a man obtained access to the continuing care retirement community where a U.S. State Senator’s wife was being cared for due to dementia.  The man, Clayton Kelly, took an unauthorized photograph of the Senator’s wife.  He then used that photograph in a video that he used in his political blog to criticize the Senator.  Police are investigating how Kelly gained access to the facility, but Kelly’s wife claims that her husband had been given a visitor’s pass that allowed him onto the grounds and his attorney claims that the photograph was taken through an open door during regular visiting hours, and thus, Kelly did nothing wrong.  The whole situation has gained national attention because it involves a U.S. Senator in the middle of a primary campaign and the possibility that Kelly has some connection to the Senator’s main rival in that primary election.  However, there really is a lesson in all of this for nursing facilities.

         The Nursing Home Reform Act of 1987 provides basic rights for residents of nursing homes.  Residents have the right to privacy and confidentiality and they have the right to dignity, respect, and freedom.  Mr. Kelly most certainly invaded her privacy and in the context of his politically motivated video violated her right to dignity and respect.  There is no doubt in that.  But what about the facility involved in this incident?  A spokesman for the facility did state that they do have security protocols in place; they patrol the grounds, they have a checkpoint where anyone entering must check in at, and they have other security measures in place. 

         Numerous examples like this are becoming more commonplace.  Is there anything more a facility can do to protect their residents in circumstances such as these?  Given we live in an age where everyone has a cell phone and almost all of them have a camera, it can be quite daunting to consider the options.  To ensure complete privacy, a facility would have to require visitors to hand over such personal property upon entering a facility.  However, short of that, facilities can and should consider policies prohibiting possession of cameras or other recording devices, by staff and prominently warning the visiting public that unauthorized photographs or videos of residents (other than family members) is forbidden.  Staff should be instructed to kindly remind visitors of these privacy rules and to report non-compliance promptly to management.

Governor Vetoes LB 916

   On Tuesday, April 22, 2014, Governor Dave Heineman vetoed LB 916, which would have eliminated the requirements that nurse practitioners enter into integrated practice agreements with physicians.  They would still be required to work collaboratively with physicians and other care providers.  The bill would have changed provisions to credentialing and regulation of nurse practitioners as well and would have put into place a transition to practice agreement.  In order to practice the nurse practitioner would have needed this transition to practice agreement or had 2,000 hours of practice under such an agreement in order to work in the state. 

   The bill was introduced by Sen. Sue Crawford of Bellevue.  Sen. Crawford stated that studies showed that nurse practitioners “practice in a safe, effective and cost-effective manner in several states.”  In testimony given to the Legislature’s Health and Human Services Committee, nurses stated that it can be difficult for nurse practitioners to find physicians with whom they could enter into integrated practice agreements with, especially in rural areas.

   In vetoing the bill, Gov. Heineman along with Chief Medical Officer Dr. Joseph Acierno expressed concern for patient safety stating that adequate clinical experience was necessary.  Gov. Heineman stated that in the future there would be a time to move forward in giving nurse practitioners additional independence, but LB 916 went too far too quickly.  The governor stated had the bill required 4,000 hours of clinical experience he would have signed it. 

   LaDonna Hart, President of the Nebraska Nurse Practitioners, states that finding a doctor who will sign the needed agreement is becoming harder and harder for nurse practitioners.  Other nurse practitioners state that this veto could limit efforts in attracting nurse practitioners to the state.  Co-Presidents of the American Association of Nurse Practitioners, Angela Golden and Ken Miller, weighed in on the governor’s veto stating it was a “missed opportunity by the state to allow Nebraska patients to receive full and direct access to nurse practitioners while improving the efficiency of the state’s health care workforce.”  They further stated that LB 916 would have addressed the problem of primary care and mental health provider shortages seen in the state had Gov. Heineman signed the bill. 

 

QAPI, Not Penalties to Reduce Adverse Events in Skilled Nursing Facilities

   In a report released by the Health and Human Services Office of the Inspector General (OIG), more than one in five Medicare beneficiaries receiving skilled care after a hospitalization experiences an adverse event.  The study defined an adverse event as harm that resulted in a longer stay in the skilled nursing facility or transfer to a hospital, permanent harm life-sustaining intervention, or death.  These adverse events are preventable and the resulting care and hospitalizations cost Medicare an estimated $2.8 billion in 2011, the year the study was conducted.

   The OIG stated that this study confirmed the need and opportunity for skilled nursing facilities to reduce the number of adverse events to residents and recommends that CMS direct the state surveyors to review facility practices for identifying and reducing adverse events.  When asked how they intended to deal with these adverse events, the CMS stated they did not want to approach the matter using harsher penalties and that survey citations won’t be the primary way for dealing with these incidents.  Rather, they want to focus on helping nursing care providers in setting up quality improvements specifically through the use of QAPI.

   The OIG recommended that CMS work on developing lists of preventable events to help skilled nursing facility’s staff understanding, include preventable events on the QAPI systems and to encourage facilities to report adverse events to safety organizations.  The OIG also recommended that CMS tell state surveyors to include an assessment of adverse event identification and reduction in their QAPI compliance and to link related deficiencies to their resident safety practices.  CMS did say that they are working to include guidance for surveyors on how to evaluate nursing facilities efforts to identify and reduce adverse events in their QAPI requirements.

   CMS still has not stated when QAPI will formally roll out. 

LB 854 Passes

On March 24, 2014, the Nebraska Legislature passed LB854.  The bill recognizes that there is a need for sufficient planning and input from stakeholders, including service providers and consumers, in order to establish an effective managed care system for Medicaid recipients.  In order to protect the state’s most vulnerable citizens, LB854 states that the Nebraska Department of Health and Human Services “shall not release a request for proposals relating to procurement of managed care for long-term care services and support prior to September 1, 2015.”

New CDC Website Provides Tools to Fight Infections

The Centers for Disease Control and Prevention (CDC) has started a new website to help long term care providers gain access to information and resources to help in the prevention of infections in nursing home residents.  The site provides information to clinical staff, infection control coordinators and residents.

The CDC estimates that there are 1 to 3 million serious infections occurring each year in the long term care setting.  The site will provide information on hand hygiene, antibiotic management and dialysis safety.  Long term care providers will also have access to the CDC’s infection tracking system and to resources that the CDC has developed in partnership with the Advancing Excellence in America’s Nursing Homes Campaign (AE).  The two share a common goal in preventing c. difficile infections in nursing home residents.

The new website will promote AE’s resources on infection control in hopes it will extend AE’s campaign along with providing additional tools in the fight against infections.  The new website can be accessed http://www.cdc.gov/longtermcare/

 

2014 Health Care Legislation Introduced

The Nebraska Legislature began its 2014 session on January 8th and over the first ten days of the session Senators introduced several pieces of legislation which could potentially impact nursing home facilities throughout Nebraska.

Senators Steve Lathrop and Les Seiler have proposed amendments to the Nebraska Hospital-Medical Liability Act to increase the amount recoverable from a health care provider for any injury or death of a patient.  Sen. Lathrop introduced LB 862 and proposed to increase the limit to $2.5 million.  Sen. Seiler proposed LB 893 which would increase the limit to $2 million.  Currently the amount someone could recover under the Hospital-Medical Liability Act is $1.75 million which was set in 2004.

Senator Kathy Campbell introduced LB 887 which would adopt the Wellness in Nebraska Act.  The proposed legislation would expand health coverage to individuals who are newly eligible for medical assistance.  It would allow those newly eligible individuals who do not have access to employer sponsored insurance but are not at the federal poverty level and do not have an exceptional medical condition to enroll in a qualified health plan.  The bill would also require that any private managed care organizations that provide “WIN Medicaid” coverage to ensure the newly eligible individuals have access.

Senator Colby Coash introduced LB 920 which would adopt the Public Guardianship Act.  This bill would create an Office of Public Guardian to provide individuals too incapacitated persons when no private guardian or conservator is available.  The public guardian will have the power to hire a deputy guardian and up to twelve associate public guardians.  The proposed legislation puts a limit of an average of 40 individuals for each associate public guardian.

LB 1072, introduced by Sen. Lathrop, would set up a board to maintain a prescription monitoring program with regards to dispensing controlled substances and other drugs identified as a potential for abuse.  The program will provide real time access to prescriptions information generated by dispensers and prescribers regarding a controlled substance.  The patient may not opt out of having the information shared through the program, but the information in the program is not subject to public disclosure unless requested by a subpoena.

These proposed legislative bills have not been adopted and will be discussed and analyzed throughout the 2014 session.

New Healthcare Laws Take Effect

On September 6, 2013, most of the laws the Nebraska State Legislature passed during the 2013 legislative sessions became effective.  Among those bills were LB 459 and LB 326.  In order to prevent several communicable diseases, LB 459 requires acute hospitals, immediate care facilities, nursing facilities and skilled nursing facilities to offer on-site vaccinations of diphtheria, tetanus, and pertussis prior to a patient or resident’s discharge.  LB 459 does not require facilities to pay for the cost of the vaccinations; it can be passed onto the resident.

Legislative Bill 326 amended the Automated Medication Systems Act to allow long-term care facilities to register and operate automated medication systems which will be licensed as a separate pharmacy.  In order for a nursing home to have an automated medication system, a pharmacist in charge of a licensed pharmacy must annually license the automated medication system.  It is the responsibility of the pharmacist to ensure that the automated medication system complies with Federal Drug Enforcement Administration and State Law.  The long-term care facility must comply with the policy and procedures that the pharmacist puts in place.  If a long-term care facility has an automated medication system the residents are not forced to receive their prescriptions from the automated pharmacy, they still have the choice to choose their pharmacy.

Client Testimonial:

Jeanelle Lust offered expert guidance and provided clear direction as to how to handle my legal issue. The legal matter was handled professionally and to my satisfaction. She has definitely brought the term "legal counselor" back into the law arena.

Kris