February 28, 2005

Legislative Proposals Regarding Survey Exits and Outside Accreditation

John Davis has recently proposed two new bills. House Bill 1503 and House Bill 1558.

House Bill 1503, if passed, would require that inspectors conduct their additional exit conferences in person rather than on the phone, by email, or by fax. This bill is currently written only to affect nursing homes, but some would like for it to include ICFs/MR.

House Bill 1558 would create more options for assisted living facilities by allowing agencies to seek outside accreditation to satisfy state requirements. The accreditation commission chosen, must obviously meet the state’s standards, and the outside accreditation in no way restricts or limits the state’s right to conduct investigations or surveys into the facility.

February 27, 2005

How to Save Medicare? Die Sooner?!

A story in the New York Times proposes that the government consider saving Medicare money by having people die sooner(free subscription required to view):

ALTHOUGH Social Security's fiscal direction has taken center stage in Washington of late, Medicare's future financing problems are likely to be much worse. President Bush has asserted that the Medicare Modernization Act, which he signed in 2003, would solve some of those problems - "the logic is irrefutable," he said two months ago. Yet the Congressional Budget Office expects the law to create just $28 billion in savings during the decade after its passage, while its prescription drug benefit will add more than $400 billion in costs.

So, how can Medicare's ballooning costs be contained? One idea is to let people die earlier. (emphasis added)

I've seen clients cited by regulators for failure to provide necessary care and services to a dying person--so there is merit in discussing what degree of life-prolonging care should be given people at the end of life. However, what this article seems to propose is that the government affirmatively do something to withhold life-prolonging treatments in order to save money.

I think that this is a slippery slope.

If the goverment controls such issues--trumping health providers and family--we will have a problem. This sort of "gate-keeping" is precisely what has caused an uproar over HMO's.

Do you believe that the government will be a better gate-keeper of treatment and services than HMO's?

If so, I want to introduce you to BLANDINE ALLAKI the daughter and Mister Desmond ALLAKI the sonof H.R.H CHIEF WILLIAMS ALLAKI of the ex- king of mende tribe Nigeria. She has an investment proposal for you.

Moreover, the article points out:

For the last few decades, the share of Medicare costs incurred by patients in their last year of life has stayed at about 28 percent, said Dr. Gail R. Wilensky, a senior fellow at Project HOPE who previously ran Medicare and Medicaid. Thus end-of-life care hasn't contributed unduly of late to Medicare's problems. But that doesn't mean it shouldn't be part of the solution. "If you take the assumption that you want to go where the money is, it's a reasonable place to look," Dr. Wilensky said.

Slippery slope alert!

Making determinations about life-prolonging treatments is complex and delicate. It's not just about the medicine or the money. It's also about ethics and morality. Get the government directly involved in such decisions and it will soon be using a backhoe where a teaspoon will suffice. That's about as complex and delicate as the government ever gets.

Lately, I've been thinking about these issues in the context of the Pope. If the government were in charge of determining life-prolonging treatments on his behalf, would he be alive today? Despite his infirmity, he has continued to work and produce writings on such matters as changes in the media and the rise of blogs.

Of course, his situation is far different than the situations of many people today who reside nursing homes. For them, heroic measure such as tracheotomies may not be appropriate.
But the point is, should the decision be taken from you, the family, the attending physician and the community in which you live, and placed in the hands of the federal government?

I say no. In my opinion, if the government makes money the primary consideration in decisions about treatment of the elderly and infirm, our society will begin to devalue the elderly, infirm and disabled.

I keep going back to what Peggy Noonan wrote about the reason the Pope has refused to retire and insists on showing us in his extremis:

What should the pope's suffering tell us? Several things, said Mr. Novak. He is telling us it is important in an age like ours to honor the suffering of the old and the infirm. He wants us to know they have a place in life and a purpose. He not only says this; he lives it. He was an actor as a youth; he teaches by doing and showing, by being. His suffering is a drama he is living out quite deliberately. John Paul stands for life, for all of life. He wants to honor what the world does not honor.

Those of you who make your living caring for the elderly, infirm and disabled--isn't honoring the lives of the elderly, infirm and disabled precisely what you do?

February 23, 2005

Courts are saying “NO” to the uninsured who claim non-profit hospitals must be charitable

There are currently over seventy lawsuits in the works claiming that non-profit hospitals are overcharging their uninsured patients for hospital care and are then being overly aggressive in their pursuit of bill payment.

These suits are primarily based upon the assumption that a non-profit hospital has an express and/or implied agreement with all patients to provide affordable medical care. Courts are disagreeing that any such agreement necessarily exists, to the extent they are premised on federal law.

The U.S. District Court for the District of Colorado said “there is no private right of action created by Section 501(c)(3) of the Internal Revenue Code” (the section that details tax exempt status). They also stated that any contract created by Section 501(c)(3) was not intended to benefit uninsured patients.

The U.S. District Court for the Western District of Oklahoma ruled similarly in another case.

While the decisions thus far tend to favor hospitals, it is important to keep an eye out as the rest of the suits unfold.

To get a detailed account of what has happened so far, along with details about how the cases are turning out, check out BNA's Health Law Reporter (PDF file).

February 21, 2005

New educational requirements for nursing education

Last year, the Board of Nurse Examiners and the Board of Vocational Nurse Examiners were combined under the Board of Nurse Examiners (BNE). In the midst of restructuring the rules governing both agencies in order to avoid conflicts caused by the joining of the two, the BNE has adopted new rules, as of February 4th, 2005, regarding the educational standards specific to nursing education.

The changes include:

- The addition of a petition process for the Director and faculty

- The required pass rate for the NCLEX-PN is increased to 80% from 75%

- The required faculty ratio is reduced to 10:1 from 12:1 (taking effect with the Fall 2005 class)

- The faculty requirement of 30 hours of continuing education every 2 years has been deleted. Faculty will now only have to meet the licensure requirement of 20 hours of continuing education every 2 years.

To see a more detailed description of this new adopted rule, click here.

Medical disclosures get a new beat

Health care providers and physicians are required to inform patients of the risks and hazards surrounding certain treatments, care and procedures.

A proposed rule in the February 4th edition of the Texas Register adds certain Cardiac and Vascular procedures to the list of treatments for which full disclosure of risks and hazards is required.

This includes procedures such as heart transplants, bypasses and valve replacements. For a complete list, check out the Texas Register proposed rule.

You'd Think They'd Have Better Things to Do: The FBI and HIPAA

Brett Mendel, Senior Analyst at Byte and Switch Insider is reporting that the FBI is apparently investigating security breaches regarding data security and HIPAA:

"It is happening with HIPAA," says Mark Diamond, president and CEO of data storage consulting firm Contoural Inc. "If you do not maintain security of data, you will be investigated by the FBI."

Say what?

You bet. While the U.S. Department of Health and Human Services (HHS) monitors compliance with the Health Insurance Portability and Accountability Act (HIPAA), the law does indeed expand the FBI's reach into the realm of healthcare violations.

Security of data is the issue here:

Securing data that resides in enterprise storage, or data "at rest," has become a hot topic for more than just the healthcare industry (see Wedding of the Year). Indeed, SAN security vendors such as Decru Inc., NeoScale Systems Inc., and Vormetric Inc. have been banging the drum of storage security for some time. But the legal implications of those concerns are only now hitting home.

"We do hear of more security audits by the government," Kevin Brown, VP of marketing at Decru, recently told Byte and Switch.

The problem for "covered entities" is that the regulations don't specify how to protect the data:

"The law is descriptive more than prescriptive," says Dick Benton, practice manager for storage governance at GlassHouse Technologies Inc. "They leave it up to IT departments to determine what 'protecting the security and confidentiality of information' means."

And according to Fiona Jones, Compliance Columnist, the cost of HIPAA has exceeded 17 billion dollars.

February 18, 2005

A Little CMS Bird Chirps In My Ear About Inservices

I have received some insights from a source from CMS in Dallas about how your inservices could be improved that may help you when you are dealing with survey issues.

The holding of an inservice in and of itself is not compelling evidence that you are fixing problems before (as part of Quality Assurance) or after (as part of a Plan of Correction). The folks at CMS want to know that an inservice has effectively taught staff how to carry out particular functions.

The folks at CMS are concerned that staff is merely going to an inservice to pick up paychecks and is not focused on learning. This is a reasonable concern. How many times have you written grocery lists during a particularly boring seminar you have attended for Continuing Education credit? Haven't we all occasionally gone off to La La Land when we should have been listening?

It is important that you not only inservice, but that you perform "return demonstrations" or competency tests to ensure that your staff is "getting it" and not just sitting there like a bump on a log. It is equally important that you monitor staff for competency in the area for a reasonable time after the inservice to ensure that staff members remember, understand and accept the importance of the information or change in systems.

How is this important in the context of surveys and regulatory litigation?

If you are confronted with an issue of past noncompliance already fixed by your Quality Assurance Committee, the surveyors need proof that the "fix" really took and that the facility did come back into compliance.

Also, if you failed to clear on the second survey--and then you do clear on a third--CMS will fix the compliance date as the date of third revisit rather than as the date you alleged compliance. Thus, DPNA and CMP's may be treated as if they run past your POC date. For instance, if you allege that you were in compliance pursuant to your POC on October 18 and the surveyors actually clear you during a third revisit on November 18, CMS will consider November 18 to be the date you came back into compliance. This, of course, is unfair. However, you may be able to negotiate with CMS if you have good evidence that you actually were in compliance on October 18.

Good evidence of compliance must include proof that the staff is actually doing things in accordance with what you taught them during the inservice. Thus, documentation of the results of "return demonstration" or other measures of competency will be crucial to convince CMS that CMP's and DPNA should have ended on October 18 rather than November 18. Also, provide documentation showing that you monitored the "fix" for a reasonable period after, and that it was actually working.

Such evidence is important to convince CMS for purposes of negotiating a case. It is also important should you go to Hearing.

The bottom line is that just showing that you inserviced staff to correct and issue is not enough. Essentially, you must show that you led the horse to water--and he did, indeed, drink.

This is what the little bird said to me.

Lawsuit forces hospitals to hear complaints by deaf patients

Seven deaf patients are filing suit against Laurel Regional Hospital in the D.C. area, claiming that the hospital failed to provide adequate means of communication for them during their visits.

The suit attacks the hospitals use of Video Remote Interpreting (VRI) technology which is used as a replacement for a live, on site interpreter for the hearing impaired. The VRI technology acts like a video conference, connecting the patients to a remote location where they can communicate via TV with an interpreter. The plaintiff's assert that they have a right to live, on site interpreter.

The plaintiffs were forced to try and use the VRI devices to communicate with their doctors about their ailments. They claim that the VRI device was an inadequate means of communication, and was often difficult if not impossible to use because of their conditions.

Elaine Gardner, co-counsel on the suit for the plaintiffs, states that "basically, it doesn't work well for people who are really sick, can't focus well enough, or can't get positioned correctly."

The plaintiffs in the suit include patients who were allowed to go home from the hospital despite being afflicted with ailments ranging from meningitis to congestive heart failure.

The suit attacks the hospitals use of the technology under the ADA (Americans with Disabilities Act), which requires that hospitals provide "effective means of communication for patients, family members, and hospital visitors who are deaf or hard of hearing." Apparently, the

How will this suit affect nursing homes and other providers?

If the plaintiffs prevail in this case, this could set a terribly expensive precedent for providers.

February 16, 2005

Residents get more money and facilities get more forms

Currently working their way through the Texas legislature are two bills, House Bill 212 by Guillen and Senate Bill 199 by Gallegos.

Senate Bill 199, if passed, would increase the personal needs allowance from $45 to $75 a month for residents in nursing homes, assisted living and ICF-MR facilities.

House Bill 212 would require that health care facilities obtain a release from new employees within 72 hours of hiring. This release will allow access to certain information about the practitioner’s history from the previous employer and from the state health care regulatory agency.