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

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. 

Extended Medicare Coverage for Therapy Services

It has been Medicare’s standard operating procedure that patients will be discontinued from therapy services if they are not improving or have plateaued.  However, due to a settlement in a class action lawsuit filed in 2011 against the secretary of health and human services, Medicare will now pay for physical therapy, nursing care and other services for beneficiaries with chronic diseases like multiple sclerosis, Parkinson’s or Alzheimer’s disease in order to maintain their condition and prevent deterioration.

Medicare officials have updated the agency’s policy manual to remove the concept that improvement is necessary to receive coverage for skilled care.  Though, don’t expect an announcement from Medicare about the new policy.  Medicare officials were only required to inform health care providers, bill processors, auditors, Medicare Advantage plans, the 800-MEDICARE information line and appeals judges — but not the actual beneficiaries.

The settlement also affects home health care and nursing home care, for patients in both traditional Medicare and private Medicare Advantage plans. It allows people to remain somewhat independent and healthier for a longer time.

Coverage can still be lost for reasons other than a lack of improvement.  For nursing home coverage, you must have a doctor’s order prescribing skilled nursing home care (not custodial care), and you must have spent three consecutive midnights in the hospital as an admitted patient. Limits on the duration of Medicare nursing home coverage remain the same.

Employers and Employees Can Contract When Commissions Are Earned

The Nebraska Wage Payment and Collection Act, Neb Rev. Stat. §§ 48-1228 to 48-1232, requires that if the employer-employee relationship is terminated, the employer shall pay the employee all of the earned wages on the next regularly scheduled payday following the termination, or within two weeks of termination whichever is sooner.  Earned commission is considered earned wages and must be paid as well. However, commission is not payable until the employer has received payment, but as long as the commission has been earned, the employee is entitled to it.

Determining when the commission is earned could potentially be the tricky part. The Nebraska Wage Payment and Collection Act sets forth that unless the employer and employee specifically agree otherwise then commissions are earned on all orders delivered and all orders on file with the employer at the time of the termination. This is the default standard for when commissions are earned, but the standard can be changed if the employer and employee specifically agree to use a different standard. The Nebraska Supreme Court allowed a different standard in Coffey v. Planet GroupTherefore, it is always a good idea for both employers and employees to know when the commission is earned.

Office of Public Guardian

Legislative Bill 920, which creates the Office of the Public Guardian under the jurisdiction of the Nebraska State Court Administrator, passed in the Nebraska Legislature. A need for guardians and conservators exists when there is no one suitable or available to serve the needs of an individual, and the Office of Public Guardian will provide service for individuals in such circumstances. The Office of Public Guardian establishes a director of the Office of Public Guardian, a deputy public guardian, and up to twelve associate guardians.

Severance Payments are Wages for FICA purposes

Today the US Supreme Court in United States v. Quality Stores http://www.supremecourt.gov/opinions/13pdf/12-1408_6468.pdf determined that Quality Stores was required to withhold and submit FICA payments from severance payments made to its employees as part of its restructuring of its business.

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.”

Facebook posts and employment litigation

A recent case from the United States District Court in Nevada demonstrates the importance of preserving social media evidence once litigation is begun or anticipated. In Painter v. Atwood, a 22 year-old employee of a dental practice alleged that the dentist forcibly held her down with his pants pulled down after which she suffered PTSD and was forced to quit. She admitted that she deleted Facebook posts about how she liked working for Dr. Atwood after she hired a lawyer. The district court held that her attorney had a duty to advise her to retain relevant evidence and not delete it. Therefore the court held that the jury would be instructed that they can assume that the Facebook postings would have been favorable to Dr. Atwood’s position in this matter.

Take away: Never delete social media postings that may be relevant to a lawsuit you are thinking about bringing.

Wage Theft and Paystub Bill Advances for Final Reading

Nebraska Employers should be aware that the 2014 Nebraska Unicameral Business and Labor Committee has advanced LB560 for “Enrollment and Review for Engrossment.” The bill would significantly alter the Nebraska Wage Payment and Collection Act, addressing wage theft, mandating new wage itemization, and authorizing investigations with penalties.

If passed suspected wage theft could result in an investigation by the Department of Labor, complete with subpoena power for witnesses and records.  Employers would face a civil penalty of $500 for a first offense and up to $5,000 for subsequent offenses. Citations and penalties could be contested within 15 days through the administrative process.

Employers would also become obligated to provide non-exempt employees with an itemized statement listing their wages and deductions on each payday. Employers would generally not be required to provide such information for employees exempt from overtime under the Fair Labor Standards Act unless the employer had a practice or policy of paying bonuses or overtime based on hours worked.  Failure to do so would lead to an infraction under Neb. Rev. Stat.  § 29-436, meaning fines of up to one-hundred dollars for a first offence, three-hundred dollars for a second offence within a two year period, and up to five hundred dollars on a third or subsequent conviction within two years.

The significance of the Enrollment and Review of this bill stems from the fact that the bill is prepared for final reading after having been advanced from Select File. The bill was a carryover from 2013, and this year several amendments have been adopted or rejected, and it is generally considered ready for final preparation and a vote. Employers should therefore pay close attention as this bill appears on track to becoming law.

Madathil Ribbon Cutting

March 20, 2014
3:30 pmto5:00 pm

Join us for the Angela Madathil’s Ribbon Cutting for her office in the Knudsen Law Firm’s office space


Researchers have amazingly discovered and validated a set of ten lipids from blood that reveals mild cognitive impairment or Alzheimer’s disease within a 2–3 year timeframe with over 90% accuracy. 525 participants who were at least 70 years old gave blood samples throughout a trial period, and investigators tracked which participants developed Alzheimer’s or mild cognitive impairment.

Alzheimer’s disease causes a progressive dementia that currently affects over 35 million individuals worldwide. While there are currently no cures or disease-modifying therapies, early detection could lead to more effective management and even prevention of these conditions, according to newly published research.  This advance notice could allow for more effective early-stage interventions and help researchers develop drugs that would “delay or prevent” these cognitive disorders. “The blood test could also help patients and their families prepare for future healthcare needs,” said study author Howard J. Federoff, M.D., Ph.D., of Georgetown University Medical Center. Confirmation of the results and further testing are needed before the blood test could be offered to the general public.

The findings appear in Nature Medicine.

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