HCAM Legal-Regulatory Conference 2-13-07 HCAM Questions Submitted 2-6-07

1. HCAM Legal-Regulatory Conference 2-13-07 HCAM Questions Submitted 2-6-07

2. Question: F-518 states that the facility must conduct periodic disaster drills (besides the fire drills). Does once a year meet the minimum requirements?

3. Answer: “Periodic review” is a judgment made by the facility based on its unique circumstances. Changes in physical plant or changes external to the facility can cause a review of the disaster review plan. Rule 117, R325.20117, requires a nursing home to have a written plan or procedure to be followed in case of fire, explosion, or other emergency. The rule specifies the content and also states that a regular, simulated drill shall be held for each shift not less than 3 times per year.

4. Question: Obviously, the state obtains statistics on surveys, how do you and the licensing officers monitor consistency among citing and scope and severity amongst the teams? In addition how do you monitor for consistency with all the new interpretive guidelines?

5. Answer: What we do to work towards consistency: we train staff and managers (and occasionally retrain), managers discuss issues on recurring basis, we use IDR results for training, we have CMS oversight surveys and performance reviews. We will be reinstituting QA reviews.

6. Question: Why don’t the surveyors hold daily meetings with facilities in order to assure that the surveyors have all the information before leaving the facility in order to accurately determine noncompliance? If residents (by identification number) are not shared with facility at exit and potential tags, then how does the facility begin to correct the deficient practice immediately as BHS has recommended? How does the facility begin the level one IDR process?

7. If providers want daily meetings, they should request it of the team survey leader. Providers should be getting identifier list so they can identify residents affected by potential violations. CMS recently issued letter indicating that this information, along with surveyor notes is not to be shared. CMS is reviewing its guidance.

8. Answer: SOM, Appendix P, Task 5 “A” • The team should meet on a daily basis to share information, e.g., findings to date, areas of concern, any changes needed in the focus of the survey. These meetings include discussions of concerns observed, possible requirements to which those problems relate, and strategies for gathering additional information to determine whether the facility is meeting the requirements. • Throughout the survey, discuss observations, as appropriate, with team members, facility staff, residents, family members, and the ombudsman. Maintain an open and ongoing dialogue with the facility throughout the survey process. This gives the facility the opportunity to provide additional information in considering any alternative explanations before making deficiency decisions. This, however, does not mean that every negative observation is reported on a daily basis, e.g., at a nightly conference. Moreover, if the negative observation relates to a routine that needs to be monitored over time to determine whether a deficiency exists, wait until a trend has been established before notifying the facility of the problem.

9. Question: In regards to the background checks and personnel records, what type of documentation is the facility expected to show the surveyors to be in compliance for staffing companies, therapy companies, laboratory companies etc per F-226? If the facility contracted with another agency that is covered under the criminal background check, i.e. Hospice, why would the facility have to keep any records except the contract where it is stipulated that the Hospice is responsible to follow the same law for their employees that applies to the nursing facilities? Please clarify what the requirement is.

10. Answer: Section 20173a(2) [MCL 333.20173a(2)] states that a nursing home is responsible for the criminal background check and cannot independently contract with an individual who provides direct services without first conducting a criminal background check. A contract with the supplying contractor isn't enough. When asked by a surveyor, the nursing home should actually provide the evidence of the check (and lack of criminal background). The criminal background check documentation can be obtained by the nursing home from contractor.

11. Question: Explain how the licensing teams and the complaint team coordinate FRI’s, complaint investigations and follow-up revisits.

12. Answer: The standard survey schedules are shared with the complaint team for cross reference and identification of survey activity involving both teams. CIU managers review the schedules at the end of each week to see if there are opportunities to consolidate work. As part of standard survey preparation, NHM staff look to see what complaints and FRIs are pending - again to see if the work can be consolidated, residents who are the subject of complaint or FRI can be included in the standard survey sample.

13. Question: Why do the surveyors not stay in the building until an IJ is abated (withdrawn) like the SOM state? Subsequently, then how can an IJ be called days after the surveyor exited the facility?

14. Answer: • Surveyors are not required to stay in the building until an IJ is removed. • IJs can be called after exit based on review of information obtained during the survey, from other sources after the survey "exit." • Logistically, there can be delays due to PHC requirement that Division of Operations Director or Nursing Home Monitoring Director be involved in making IJ decision. See MCL 333.20155(20). (HCAM Initiative)

15. Question: When licensing officers review the 2567’s before they are sent to the facility, do they check to see that the plan of correction date was considered for date of compliance instead of the survey exit date for first and second revisits? Is this reinforced with the surveyors periodically especially new surveyors?

16. Answer: • I don't understand this question as written. What I think it is asking is do managers review the completion date in a plan of correction and how is the compliance date determined after a revisit. SOM 7317B addresses compliance date, BHS Plan of Correction Instructions (website) has information about compliance date, BHS has in past sent providers information about how compliance date is determined. • To repeat, the completion date in an acceptable plan of correction is the compliance date for the 1st revisit, if there is not current evidence of non-compliance. On the second revisit, the compliance date is the date that evidence received or observed by surveyors indicates compliance. For the third revisit, the compliance date is the revisit date. • As stated, this information is printed in several places. It is occasionally reviewed with managers and surveyors.

17. Question: Complaint Team - High priority complaints and self-reported incidents seem to be taking longer to investigate up to 15 months. Are there protocols regarding timeliness that the complaint team must follow and if not timely what recourse does the facility have?

18. Answer: • See Complaint and FRI Manual 6200. • See State Operations Manual 5075 that has investigation priorities. • It is true investigations are taking longer. The well documented problem with large number of FRIs is responsible. We are mostly compliant with 2 day investigation requirement for immediate jeopardy allegations. We are months behind on harm. Apparently some are 12 months old. As for what facilities can do, as has been said many times - they should take immediate corrective action so that when an investigation is completed it can be given consideration for past non-compliance.

19. Question: What recourse does the facility have when the 2567’s are not being sent out per the SOM requirement of 10 business days? Can the exit date be changed to reflect request for additional information or BHS‘s delay in determining whether to cite which could affect the facility’s timeline for revisits and enforcement?

20. Answer: On complaints, the date on the 2567 reflects when the investigation is completed. This is most often the survey exit date. But when there is substantial investigation that occurs after exit, that exit date is not used. By substantial investigation, we mean, e.g., review of hospital records, interviews of key staff. Calls to verify or clarify a statement or record entry do not apply. Standard revisits typically occur approximately 60 days after exit – 2567 delay not an issue.

21. Question: Use of past noncompliance. Training was conducted by BHS for providers and surveyors. What system is in place so new surveyors and current surveyors utilize this process? If some surveyors will not consider or even look at the materials what should facilities do? Facilities do not like to elevate to the next level for fear of retaliation.

22. Answer: New surveyors are trained on past non-compliance. Surveyors are trained to consider past non-compliance along with the multitude of tasks they are required to perform for revisits. Facilities can assist these determinations by first being aware of the criteria for "past non-compliance" and offering evidence to help the determination. If surveyors won’t consider PNC – move up chain of command.

23. Question: Why is MPRO the sole agency for Directed POC’s and Directed In-services? Could there not be another agency or persons available as a choice? This is needed with the continuous change in staff at MPRO and the delay in obtaining the services timely. Some of MPRO staff did not succeed working in a nursing facility. What other options are there?

24. Answer: • MPRO is the service provider of choice for Directed Inservices and Directed Plans of Correction based on past practice and feedback from BHS managers. • Problems with availability of MPRO remediators or delays in obtaining service should be brought to the attention of the manager that required DIT or DPOC. Special circumstances, e.g. a consultant who is already working with a facility and is provider preferred person for remediation can be discussed with BHS manager. Value, not cost, can be considered. • "Some of MPRO staff did not succeed working in a nursing facility” means what?

25. Question: If Michigan is awarded the opportunity to participate in the QIS survey pilot, how would the state implement this? Approximately how many facilities would be involved, selected randomly? If the state is awarded the contract to participate in the pilot when would the state anticipate training the providers?

26. Answer: Deferring answer at this time. It seems unlikely Michigan will participate on pilot project. See CMS S&C 07-09.

27. Question: Why doesn’t the state implement the dining assistant program when other states have successfully for years provided this added benefit to the residents? The report from MSU basically concluded that there were no safety issues and residents did have an enhanced dining experience? There is not a need for legislation, the state has the power to implement based on the federal register. Michigan residents are missing out on an enhanced dining experience.

28. Answer: The State’s position is it will wait on legislative action. What is HCAM doing to advance legislation?

29. Question: Please explain BHS’s authority to overturn MPRO’s IDR results and in addition please give us some statistics on how often this occurred in the past two years and the reason(s) for it.

30. Answer: • SOM 7212C(3) NOTE: Informal dispute resolution is a process in which State Agency officials make determinations of noncompliance. States should be aware that CMS holds them accountable for the legitimacy of the process including the accuracy and reliability on conclusions that are drawn with respect to survey findings. This means that while States may have the option to involve outside persons or entities they believe to be qualified to participate in this process, it is the States, not outside individuals or entities, that are responsible for informal dispute resolution decisions. CMS will look to the States to assure the viability of these decision-making processes, and holds States accountable for them.

31. MPRO offers advisory opinion, so BHS does not technically overturn their decision. We don't keep statistics how many times we have rejected MPRO opinion to delete citation. An estimate is less than 10 times. We reject MPRO opinion when we feel that it does not follow regulations or is inconsistent with facts.

32. Question: The Michigan Operations Manual draft is out for comment as of February 5, 2007. We understand that BHS has been working on this draft for almost two years and this is obviously an extremely important document that requires our careful consideration so would BHS please extend the time period for submitting comments? We would deeply appreciate an extension. Can you briefly elaborate/highlight on what you consider are the significant proposed revisions/additions?

33. Answer: • I won't formally extend the date for comments. Comments can be submitted at any time and will be considered. I expect there will be some additional time after comment period closes in which we will be working on manual and revisions can be made. • Major changes are the addition of standard survey and licensing protocols. Some updates to complaint investigation section to incorporate CMS complaint priorities language.

34. Question: We understand BHS will provide an update on FRIs, logs, etc. Why does Michigan compared to other states report resident to resident allegations when the other states within CMS Region V report only basically those with serious injury, those requiring medical attention or repeat offenders who harmed a resident previously etc? In 2006 Michigan cited facilities 103 times for F-223, which accounted for 103 of the 191 F-223 cites for CMS Region V. Michigan’s 103 cites was more than all other CMS regions in the country as a whole except for San Francisco. Could Michigan follow the other states allegation reporting for resident to resident to reduce the number of intakes for the state in order to more efficiently deal with the volume, timelines of investigations etc?

35. Answer: CMS has made it clear, as recently as 2/6/07 that resident to resident altercations are to be reported as alleged abuse incidents without any qualification of seriousness of injury. Michigan will follow the regulations as we understand them.

36. Question: I wanted to ask clarification on the SOP. A facility was already cited for F-324 on an annual and gave a completion date of 2-18-07. The facility then had a complaint survey obviously prior to the POC date and the complaint team cited the same tag. Why wouldn’t the “Summary Report” just reflect that the facility is already out for F324 and the POC completion date has not been met so either report amended with the example or just stated that facility is working on POC, etc. Why get a double tag like double jeopardy. I appreciate it might be a different example as we discussed before talking about past noncompliance, etc. Not like the complaint event occurred after the POC date that they put down on the 2567. (Received 2-9-07.)

37. Answer: There are no SOM provisions addressing this situation. Deficiencies may be cited when found. There is no double jeopardy. I encourage cite when POC is needed because prior cite is different example. Standard survey covered falls issue, complaint FRI involved falls and elopement. Falls issue was cited as M346, state tag only; elopement cited as F-324 and POC required.

38. Facility Reported Incident Intake History *Projected based on current totals. ** FRI totals for FY2007, as of January 31, 2007.

39. Facility Reported Incident Intake HistoryFY 2007Category 3 – Non-Urgent

40. Facility Participation in Facility Reported Incident Log

41. Bureau Personnel Update • Mike Pemble is Director of the Division of Operations, and is also serving as Acting Director of Nursing Home Monitoring (NHM). Once the hiring freeze is lifted, this position will be filled. • Roxanne Perry is Acting Manager of the Division of Operations. Enforcement and Training questions should be directed to Roxanne at (517) 241-2631. • Data questions should be directed to Susan Jones at (517) 241-2658. • Complaint Investigation Unit (CIU) – Six (6) vacant NHM positions were transferred to CIU. Five have been filled, three of those have passed the SMQT.

42. Nursing Home Monitoring Priorities • Compliance with mandated survey intervals. • Fill staffing vacancies. • Complete all CMS training. • Provide on-site supervision through the presence of Survey Monitors. • Continued improved communication and coordination between Nursing Home Monitoring and Division of Operations – revisits and survey & certification issues. • Identify staff training needs – individually or collectively. • Reinstate QA meetings.

43. Complaint Investigation UnitOrganizational Chart 2/12/07

44. CMS Issues • CMS has instructed State Agencies to continue cross referencing outcome and process tags. (i.e., F314 should be linked to F281) • GPRA – federal initiative whose goal is to reduce the incidents of pressure sores and restraints. CMS will be issuing CMPs for F221 and F314. • Budget – we are in a continuation budget cycle for FY2007. ‘Revisit Survey’ component for FY2007 and FY2008--may be a charge for revisits. • LSC FOSS surveys will continue. • Discretionary termination – No opportunity to correct.

45. Michigan Issues • No waiver for State CPO. • Closer monitoring nursing home changes of ownership and transfer of license. • Close monitoring licensed beds.