The Current and Future Impact of the Health Reform Law on Long Term Care Providers. Susan M. Fradenburg 300 N. Greene Street, Suite 1400 Greensboro, NC 27401 (336) 378-5482 [email protected] .
Susan M. Fradenburg
300 N. Greene Street, Suite 1400
Greensboro, NC 27401
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(1) each member of the governing body of the facility, including the name, title and period of service of each such member;
(2) each person who is an officer, director, member, partner, trustee or managing employee of the facility; and
(3) each person or entity who is an additional disclosable party of the facility.
“Managing employee” is identified as an individual, including a general manager, business manager, administrator, director or consultant, who directly or indirectly manages, advises, or supervises, any element of the practices, finances, or operations of the facility.
A “disclosable party” is defined as an individual who:
A “disclosable party” is defined as an individual who:
(4) owns a whole or part interest equal to or exceeding 5% of the total value of the real property; or,
(5) provides management or administrative services, management or clinical consulting services or accounting or financial services to the facility.
Resistance to Requiring Formal Written Reporting
Elder Justice Act -- Report Reasonable Suspicion of Crime
Effective March 2010, an owner or operator of a long term care facility certified by Medicare and/or Medicaid shall notify each owner, operator, employee, manager, agent, or contractor of a long-term care facility of that individual’s obligation to report to the Secretary and 1 or more law enforcement entities any reasonable suspicion of a crime against any individual who is a resident of, or is receiving care from, the facility.
Given the lack of guidance from the Government, we would recommend that the following actions be taken at this time:
(1) Report suspicions of crime to the State survey agency as “contractor” for HHS and to your local law enforcement agency;
(2) Post conspicuously employee’s requirement to report “reasonable suspicion”;
(3) Develop and implement policies and procedures to ensure that employees and other required reporters are educated on the provisions in this section, including guidance regarding “reasonable suspicion,” and “crime.”
Guidance may vary from state to state and will require judgment call on behalf of reporter.
Special Focus Facilities
Effective October 1, 2010, the number of Special Focus Facilities (SFF”) per State will be adjusted to reflect current population of nursing homes in each State and a ten percent increase in slots nationally.
Initial Selection Notification:
“Significant improvement” is defined as no deficiencies that are at or above an “F” level.
Notification of Removal from SFF Designation
SFF does not meet requirements at time of fourth survey or 24 months than CMS will either:
(1) recommend a 5th survey
-- only done if progressive improvement shown or there is a change of ownership
(2) Terminate provider agreement
Reduction of civil monetary penalties in certain circumstances.
Beginning March 2011, the Secretary has discretion to reduce a penalty by up to 50% where the facility first self reports the deficiency and then self corrects it within 10 days after being notified of the imposition of the penalty. However, no reduction will be permitted if:
1. It is a repeat deficiency, and the Secretary already reduced a penalty imposed on the facility in the preceding year; or
2. The penalty is imposed for a deficiency that results in a pattern of harm or widespread harm, immediately jeopardizes the health or safety of a resident, or results in the death of a resident.
Collection of Penalties.
The Secretary may provide for placement of the civil money penalty collected into an escrow account on the date on which the IDR process is completed or 90 days after the date of the imposition of the penalty, whichever is earlier.
Placing penalty funds in escrow pending appeal. A facility will no longer be able to wait until its appeal is completed to pay the imposed CMP. The CMP can be placed in an escrow account either on the date the independent informal dispute resolution process (“IIDR”) is completed or 90 days after imposition of the CMP, which ever date is earlier. The CMP will be returned with interest if the facility is successful in its appeal.
“Independent” informal dispute resolution (“IDR”)
It is proposed that an IDR:
(a) be requested within 30 days of notice of imposition of a CMP;
(b) be completed within 60 days of the imposition of the CMP;
(c) generate a written record;
(d) include notification to an involved resident or resident representative as well as the state ombudsman and be give these individuals the opportunity to provide written comments; and
(e) be conducted by the State, CMS, or an entity approved by the State and CMS, who has no conflict of interest with the survey process.
If an entity wants to use the IDR process the facility will have to pay for the costs associated with that process.
The actual fee is not currently specified, but it may be incorporated into rule when it becomes final on March 23, 2011.
The Secretary can reduce CMPs resulting in a “D” through “G” level deficiency that was not cited in the prior year by 50% under the following conditions:
(a) facility self-reports noncompliance to CMS or the State before it is identified by CMS or the State;
(b) correction of the noncompliance must have occurred within ten days of the date the deficient practice was identified.
Allocation of Civil Money Penalties:
50% of the collected CMPs should be used to benefit nursing home residents.
Examples given for use of funds include:
(1) support and protect residents of facility that closes;
(2) support resident and family councils; and,
(3) support facility improvement initiatives.
Collected CMPs cannot be used for survey and certification operations and functions.
Notification of Facility Closure
Additional information includes:
(1) Staffing data for each facility, including census data, hours of care provided per resident per day, and staffing turnover (note that staffing data is not subject to the March 2011 implementation date);
(2) Links to state websites with survey and certification information, Form 2567 reports, plans of correction, and information to help consumers understand the reports;
(3) A new standardized complaint form and instructions on how to file a complaint;
(4) A summary of the number, type, severity, and outcome of substantiated complaints at each facility;
(5) A summary of adjudicated instances of criminal violations by employees of a nursing home within the facility by type, such as abuse, neglect, or other crimes that resulted in serious bodily injury, and the penalty for the violations;
(6) Information on the status of facilities in the Special Focus Facility Program; and
(7) The number of civil monetary penalties assessed against the facility, employees, contractors, and other agents.
Additional Training Requirements
Dementia and Prevention Training
The resident or a person acting of their behalf can still submit a complaint in a manner or format other than the standardized complaint form.
(1) procedures to track complaints received;
(2) procedures to determine severity of complaint and investigation of the complaint; and,
(3) deadlines for responding to the complaint.
By March 2012, facilities will be required to submit electronically direct care staffing information, including information with respect to agency and contract staff based on payroll and other verifiable and auditable data in a uniform format.
The information submitted shall include, but not be limited to:
Ethics and Compliance
Nursing facilities must implement compliance and ethics programs that are “effective in preventing and detecting criminal, civil, and administrative violations under this Act and in promoting quality of care” by March 2013.
Program must include:
(1) compliance standards and procedures;
(2) designation of high-level personnel with sufficient resources and authority to assure the enforcement of the program;
(3) appropriate staff training programs;
(4) monitoring, auditing, and reporting systems;
Program must include:
(5) disciplinary mechanisms for violations and failure to detect violations;
(6) an appropriate plan for responding to violations and preventing future similar violations; and
(7) periodic reassessment of the program and its effectiveness.