March 31, 2005

Change In New Mexico IDR Practice

Until recently, the New Mexico Survey Agency allowed providers to file only the Informal Dispute Resolution request- without your rebuttal information- by the tenth day after receipt of the 2567. The agency then permitted additional time for filing the rebuttal information as long as it was received two weeks prior to a meeting of the Informal Review Committee meeting.

The above described practice, though contrary to the written policy, was allowed until now. Contacts at the DOH have now indicated that the practice has apparently reverted to the written policy which was promulgated on 11-25-03. This policy requires that you file, along with the initial request, all of your IDR rebuttal materials by the 10th day.

It should be noted that the policy does not define what it means by "filing a written request." In the legal world, "filing" generally means placing in the mailbox or having postmarked on the due date. Thus, if you mail a document on the due date, it is considered filed timely. That's the general practice.

However, a contact at DOH has indicated that is not DOH's interpretaion. It's interpretation is that the IDR materials must be received by DOH in Santa Fe by the 10th day. If it is received after the 10th day, it will be considered untimely and will not be considered.

This is unfortunate because it means that facilities located outside Santa Fe will have to mail IDR rebuttal material earlier and will not have the advantage of the full ten days to prepare the material. In the alternative, they may have to fax the materials--although that may be a problem if the rebuttal information is voluminous. Further, the policy does not indicate if fax filings will be accepted.

Regardless, interpreting the policy in this manner does not treat all facility's equally. Facilities located in or near Santa Fe are in a position to hand deliver the materials on the due date. Facilities located elsewhere will not have that advantage.

The only fair way to handle this is to require that IDR requests and rebuttal materials be put in the mail, or given to another carrier, on or before the 10th day. Handling it in this manner gives all facilities the full ten days to prepare the materials.

The contact at DOH also indicated that if an IDR is due on Sunday, but received on Monday, it will be considered untimely--even though none of the DOH employees are on premises to accept delivery on Saturday or Sunday.

Therefore, if your IDR is due on a weekend or holiday, DOH must receive the documentation on the day before the holiday or weekend. Again, this signficantly cuts down your time for preparation. If DOH is not going to have anyone available to accept deliveries on Saturday and Sunday, the due date should be moved to Monday.

Finally, ten days to put together the rebuttal materials is unrealistic in many cases. A sixty page 2567 addressing 15 or 20 patients is difficult to challenge in such a short period of time.

In the meantime, please note that the practice has changed. If you have an attorney or corporate nurse doing your IDR's, it is important that the attorney or corporate nurse receive the 2567 the very day that you receive it.


Apparently, DOH is reevaluating the above information. We were told that if an IDR rebuttal is due on a weekend, but received the following business day--it will be considered timely.

March 30, 2005

Joint Investigations of Abuse & Neglect in Nursing Homes

On March 22, 2005, DADS issued Provider Letter #05-13--Joint Investigation of Nursing Home Abuse and Neglect Allegations. This letter notifes nursing homes that DADS will notify local law enforcement of abuse and neglect allegations of the nature that statutorily requires DADS to investigate within 24 hours:

A resident('s):
  • health or safety is in imminent danger, or
  • has recently died because of alleged abuse or neglect or other complaint. or
  • has been hospitalized or treated in E.R. because of alleged abuse or neglect..., or
  • has been victim of a crime or
  • suffered bodily injury

Local law enforcement will be given the opportunity to participate in the investigation within parameters of their discretion.

So will local law enforcement often participate? I think that it will depend on the seriousness of the allegations and injury. If complex medical questions are involved and no death is involved, local police may leave it to DADS. If it involves a death or instances like CNA's dropping and injuring patients because a CNA attempts a transfer of a resident requiring a two people--they may participate.

We will have to see.

March 21, 2005

When Ethics, Morals or Religion Say “No”

Under HB 2061, Jodie Laubenberg proposes to give health care facilities, health insurers, and health care providers the right to object to providing or participating in certain procedures.

The basic rights and limits created under this bill for health care facilities, health insurers, and health care providers are as follows:

Health Care Facilities:
  • Health Care Facilities “may . . . withdraw from providing a health care service or may refuse to provide or participate in the provision of a health care service on ethical, moral, or religious grounds as provided by the facility’s organizational documents, charter, bylaws, or an adopted mission statement.”
  • Health Care Facilities may not assert an objection:
    • during a public health emergency
    • when such objection would result in death or serious bodily injury to the patient
    • if such objection is based on the patient’s race, color, religion, sex, nation origin, age, or disability (as protected by federal law)
Health Insurers:
  • Health Insurers “may . . . refuse to offer or provide a benefit for a health care service on ethical, moral, or religious grounds as provided by the insurer’s articles of incorporation, bylaws, or an adopted mission statement.”
  • Health insurers may not refuse to offer or provide a benefit if:
    • it is specifically covered under the contract, policy, ,or certificate issued by the insurer
    • it is required under the Insurance Code

Health Care Providers:

  • Health care providers “may . . . as a matter of conscience object to providing or participating in the provision of a health care service on ethical, moral, or religious grounds.”
  • Health care providers may not assert an objection:
    • during a public health emergency
    • when such objection would result in death or serious bodily injury to the patient
    • if such objection is based on the patient’s race, color, religion, sex, nation origin, age, or disability (as protected by federal law)
  • There are notice requirements to employers for health care providers

    This bill will provide criminal and civil liability protections to objectors.

March 10, 2005

Accompanying Surveyors

In a recent letter, CMS laid out the "rights" of surveyor’s to move throughout the facility without being "hindered" by facility staff. The letter threatens such penalties as Termination:

“The surveyors may allow, or refuse to allow, facility personnel to accompany them during a survey. Each case is at the SA and the surveyor’s discretion and is to be worked out with the facility management.”

The letter asserts that while the participation of staff is often helpful to surveyors, it can also be a hindrance, sometimes causing arguments about observed problems and making the survey more difficult.

"Interfering behavior" on the part of facility staff will result in suspension of the survey, contact with the regional office, and possible termination of the Medicare-certified provider (as is the case when the surveyors are not permitted to photocopy records on behalf of CMS).

Jerri Lynn Ward, J.D. says:

Providers have an absolute right to bring information that would exonerate the facility to the surveyors . The problem with surveyors disallowing facility staff from accompanying them--is that if you aren't contemporaneously seeing their concern--you may be unable to provide such information in an efficient or timely manner.

It is understandable that surveyors would not want the investigation to turn into a running argument. However, one would think that they recognize the need to have sufficient information in order to discern the whole picture as it is unfolds.

Also, some surveyors adopt an aggressive and intimidating manner of interrogation. Though it is understandable that they would want privacy when interviewing staff to avoid possible intimidation by employers--your staff needs to understand that such interviews can become the basis of a criminal charge against that employee if criminal neglect or abuse is allegedly found. It may be in that employee's interest to have a third person present to verify what is actually said in the interview should charges be brought against the employee based on the surveyor's version of the interview.

So what can you do? Here are some suggestions:

  • When the surveyors come in, start accompanying them. Be extremely courteous and undefensive. If an issue comes up and you would like to give them more information--say things like "may I provide more information?" If they say no or ignore you--make a note about the issue and have the information available at exit. Do not display anger, contempt or disgust--not matter how warranted. The easier you are to work with--the less inclined they may be to tell you not follow them.
  • If you are not allowed to follow them--catch up with them frequently to see what issues they are encountering so that you can gather additional information.
  • Your employees should all be made aware (well before a survey) that they have a right to have someone present during interviews. Let them know their statements could be used against them, individually, if abuse or neglect by them is allegedly found.
  • If you are not allowed to be present during interviews--try to be aware of with whom the surveyors are talking in order to debrief facility staff later. Be very careful and gentle during such debriefings to avoid any appearance of retaliation.

I get the impression that the CMS letter was provoked by incidents where anger was displayed. The initial outcome of this letter may be that surveyors refuse to let anyone accompany them for a while. Gently and politely persist in your attempts to accompany them so that you will have the opportunity to protect the facility from misunderstandings and misinformation.

It never hurts to ask--as long as you ask nicely.

March 07, 2005

Ensuring Insurance for new Medicare drug benefit

Surprising many experts, a large number of substantial insurance companies have stated they would offer prescription drug coverage to Medicare beneficiaries next year.

In a New York Times article released on Sunday, the Times reports that early predictions surrounding the new Medicare plan were wrong. In 2001, the president of the Health Insurance Association of America said that "private drug insurance policies are doomed from the start. The idea sounds good, but it cannot succeed in the real world."

Now it seems that insurance companies think the plan makes practical sense as well. Citing the business opportunities with the older population and the reduced financial risks created by heavy federal subsidies, insurance companies aren't willing to stand back and let competition steal the market.

March 03, 2005

The Medicaid Estate Recovery Program

The new rule became effective on March 1. Already, families are reacting:

A new rule took effect Tuesday that will allow the state of Texas to get back some of the money paid out for nursing home care. The rule has some families scrambling to protect their assets from the government