Barbarians At Your Door!

Other Southern States Attempt to Curb Medicaid Costs

2005-08-10T08:10:00.000-07:00

A recent article in The Augusta Chronicle documented the ways in which Georgia and South Carolina are dealing with the rising costs of Medicaid in the face of impending Federal cuts. Even without Congressional cuts, many states would still be facing a financial crisis due mainly to the costs of prescription drugs and long term care. These cuts have forced states to develop innovative ways to address the rising needs of individual's health care and less money to fund the programs.

South Carolina has implemented a program that calls for Medicaid recipients to be given personal health care accounts to pay expenses. Patients could then choose an option that they feel would give them the best service for their needs. The South Carolina plan also hopes to slow the growth of the costs of the program by promoting competition among companies offering different plans.

Patients who spend their money wisely could be rewarded by giving them some of the money back or receive some sort of a gift certificate. But this still raises questions about people who do not spend their account well, or still have expenses beyond what they were provided. This system could also encourage people to ignore potentially serious health concerns so that they can keep some money from their account.

Georgia's plan is similar to a Florida model, and turns to managed care program. The state's Department of Community Health selected companies to enroll the state's more than one million Medicaid and PeachCare for Kids patients into the program. The program has divided the state into 6 regions, with each region serviced by a couple different companies that have experience running managed care programs. The state hopes to save tens of millions of dollars by paying the companies a flat rate per patient, but it remains to be seen whether those savings will materialize. The program will stress preventive care and provide primary care physicians, and attempt to educate patients to seek treatment before their illness becomes critical and more costly to treat.

Neither of these programs is perfect, but both make attempts to address this critical issue. The fact remains that something must be done, because the status quo will be inadequate to address the nations healthcare needs in the future.

Louisiana Looks to Study Nursing Home Fines

2005-08-09T08:06:00.000-07:00

A recent article in The Times-Picayune has addressed the issue of nursing home sanctions in Louisiana.

Louisiana has long been considered to be lax in its enforcement of federal regulations for health care. Louisiana's homes, which often rank toward the bottom on key quality of care indicators, are far less likely to be fined for violations, even those that cause serious injury or death, than their neighboring states. For example, in the last four years, Louisiana's 309 licensed nursing homes have been fined a total of approximately $1.2 million. Over that same time period, Mississippi's 204 homes were fined $3 million, and Texas's 1,137 homes were fined around $7.4 million.

Some officials in Louisiana are beginning to investigate whether more stringent penalties will lead to better quality of care. Governor Blanco's Health Care Reform Panel spent months studying the state's long term health care program, and recommended that sanctions be increased and that the issue receive more study.

The study will be headed by the state's ombudsman for long term care, Linda Sadden. The group will also include state health regulators, representatives from the nursing home industry, advocacy groups and elderly and disabled people receiving long term care. Sadden has said that they will look at other states for guidance and see if the increased sanctions lead to an increase in the quality of care.

Sadden has said that while relatively little research has been done on the relationship between penalties and quality of care, the few studies that have been conducted suggest that strict sanctions serve as a motivator for nursing homes to improve. In California, for example, the maximum penalty was raised to $25,000 in 1999, and then again to $100,000 in 2001. Following these increases, the number of homes cited for serious violations has dropped from 30 percent to 6 percent in the last six years.

Some have cautioned against stricter penalties, suggesting that higher fines levied will reduce the monies available to provide a high quality of care. Others have countered that if the home is already providing a high quality of care, the increased sanctions will not be an issue.

The group meets for the first time on August 18. It will be interesting to see if this study leads to any dramatic changes in enforcement in Louisiana.

Random Bits Learned From The IDR Process

2005-08-07T11:08:00.000-07:00

First, if you are doing your own IDR rebuttal, make sure that every page from a resident's chart (even if it is a back page) has the resident's name and a date on it. Second, make sure the names and dates are legible.

Many times, a facility's defense to treatment issues is the fact that the resident or responsible family members refused treatment or diagnostic tests. This defense will not fly unless you are able to demonstrate informed consent on the part of the resident or responsible family members. Thus, if the resident refuses labs that may, for instance, detect problems with dehydration--it is important that the physician clearly informs the resident or family members of the risks of refusing such labs.

If you are trying to administer medication , and he says "I don't want it", inform him of the possible consequences of not taking is medication. Then document the chart with the information and his response.

If you don't have this sort of information in the chart, you won't win on this issue.

Legislative Update July 27, 2005

2005-07-27T13:07:00.000-07:00

Senate Bill 1525 recently passed and established a number of protocols that must be followed in regard to the safe handling of residents. The bill requires that the quality assurance committee of a nursing home must adopt strategies to control the risk to patients and nurses associated with lifting, moving, or otherwise repositioning the residents. At a minimum, the process must include:

Analysis of the risk of injury to both patients and nurses posed by the environment in which a patient must be handled or moved;
Education of nurses in the identification, assessment and control of risk of injury associated with handling;
Evaluation of alternative ways to reduce risks associated with handling;
Restrictions, if possible, of manual patient handling unless it is an emergency;
Collaboration with and reporting annually to the nurse staffing committee;
Procedures for nurses to refuse to perform a handling that the nurse in good faith believes would pose a risk the the nurse or patient;
Submission of an annual report to the quality assurance committee on activities related to assessment and strategies to control the risks associated with lifting and movement; and
Consideration in any future building projects for incorporating handling equipment or increased physical space.

This act will become effective on January 1, 2006.

Diabetes Causes Concern in LTC Facilities

2005-07-27T11:25:00.000-07:00

A recent article in Yahoo News emphasized how critical diabetes care has become to ensuring a high quality of care in nursing homes and assisted living facilities. Diabetes is the fifth deadliest disease in America, and it afflicts a disproportionate amount of older Americans. Half of all diabetes cases involve individuals over the age of 55, and over a quarter of the residents in LTC facilities suffer from the disease. The American Diabetes Association (ADA) estimates that nearly 1 in 5 people over 60 has diabetes. Due to its prevalence in nursing homes and other similar facilities, approximately 10% of healthcare costs are associated with the disease.

With the technology changing and the nature of the disease, it is important that a facility regularly monitor their diabetes management program. The ADA suggests that facilities use the following steps to evaluate their diabetes management programs:

-- Assess the current diabetes situation
-- Screen high-risk patients who have not been diagnosed with diabetes
-- Order appropriate lab tests to determine the resident's condition
-- Assess the patient's hyperglycemia and identify the cause
-- Confirm diabetes diagnosis
-- Evaluate the nature and severity of diabetic complications
-- Obtain input from staff who have worked with the resident
-- Summarize the patient's condition
-- Develop an individualized care plan and define treatment goals
-- Address causes and complications with the resident and caregivers
-- Use oral hypoglycemia agents or insulin as necessary
-- Implement the care plan
-- Re-evaluate the patient at regularly scheduled intervals
-- Routinely monitor the patient's blood glucose levels

It is also important for healthcare facilities to stay abreast of any developments in the field. Continuing education programs and open communication will both help to increase awareness and improve treatment of diabetes.

For more information please click here.

The Compassion of Hospice: Dame Cecily Saunders

2005-07-19T16:04:00.000-07:00

I wrote yesterday of the passing of Dame Cecily, the founder of modern hospice. Today, I find a beautiful article by Wesley J. Smith about the purpose of hospice as envisioned by Dame Cecily. Click here to read the article.

Founder of Hospice, Dame Cicely Saunders, Dies

2005-07-18T12:49:00.000-07:00

Dame Cicely Saunders has died in the hospice she founded.

Dame Cicely Saunders, who died yesterday aged 87, was regarded as the mother of the modern hospice movement; at St Christopher's Hospice, Sydenham, south London, founded in 1967, she charted new approaches in techniques for treatment of the terminally ill, based on her Christian belief that no human life, no matter how wretched, should be denied dignity and love.

--snip--

Cicely Saunders first had the idea of creating a modern hospice in 1948, when she was working as a lady almoner (medical social worker) at St Thomas's Hospital in London. There she met David Tasma, a young Polish waiter who, having escaped from the Warsaw ghetto, was dying of cancer, in great pain, on a ward she was visiting.

Though he had little English, they spent their time together talking about death and the care of the dying: "He needed to make his peace with the God of his fathers, and the time to sort out who he was," she recalled. "We discussed the idea of somewhere that could have helped him to do this better than a busy hospital ward."

Cicely Saunders fell deeply in love and, when he died, he left her all he had - £500 - and told her: "I'll be a window in your home." "It was as though God was tapping me on the shoulder and telling me 'You've got to get on with it'," she recalled.

Carrying Tasma's memory with her, Cicely Saunders became a physician and went on to found St Christopher's Hospice, where she hoped to "help the dying to live until they die and their families to live on". She had no new drugs, but showed how, by using them earlier in anticipation of, rather than in response to, the onset of pain, terminally ill patients could be kept comfortable until the end.

What a great lady. We owe her a debt of gratititude. (HT Wesley J. Smith)

State Governors Gather to Discuss Medicare

2005-07-18T12:45:00.000-07:00

According to the Associated Press, a number of governors gathered on Sunday to discuss a number of national concerns, chief among them the budget concerns over rising Medicare expenses. Some governors believe that the President's new policy changes will unfairly require the states to pick up a large portion of the new prescription drug benefit.

A significant portion of the discussions focused on a small part of the new policy dealing with individuals old enough to qualify for Medicare and poor enough to qualify for Medicaid. The states want the federal government to absorb the expenses for this group of individuals, which are significantly larger than the rest of the Medicaid population.

According to some governors, a number of states are contemplating a lawsuit against the government, while others are hoping for a settlement. Governor Rick Perry of Texas has already vetoed the $444 million that was budgeted to be sent to the federal government during the next two years, and has urged fellow governors to discuss changing the federal policy. Vermont's governor has acted similarly, setting aside the $43 million his state would owe until a decision is made on who pays for these services.

The governors say they have the support of all 50 governors in seeking to implement experimental programs with the aims of slowing the growing cost of Medicaid and developing more effective ways to deliver health care. One idea proposed would allow states to collect a copayment from recipients, and some programs would offer incentives (such as quitting smoking or losing weight) that would reduce or eliminate that copayment. The governors believe that they need to come up with a bipartisan plan that is possible before we can hope that Congress could reach such a consensus.

Unintended Consequences

2005-07-14T16:18:00.000-07:00

Back last November, I wrote about rumblings in Florida to require criminal background checks on prospective resident. In Illinois, they've apparently passed such a law and are now about to suffer the consequences:

Emergency rules implementing the recently signed legislation require all 100,000 current nursing home residents to undergo a criminal background check and be checked against sex offender databases maintained by the Illinois State Police and the Illinois Department of Corrections. The same requirements apply to new admissions.

--snip--

A spokeswoman for a statewide nursing home association said the new rules are going to turn a delicate family decision into a gut-wrenching experience.
"It's difficult enough to decide to put an elderly relative in a nursing home," said Pat Comstock of the Illinois Health Care Association. "But then to have your elderly grandmother or grandfather subjected to a criminal background check is even more difficult."

And then there is this:

Although the State Police and DOC databases can be easily checked from any computer equipped with Internet access, requests for criminal background checks submitted electronically to the State Police can take up to three days and cost $10. If submitted manually on paper, they can take up to a few weeks and cost $16, according to State Police spokesman Rick Hector.

More than 50 percent of new admissions to nursing homes come directly from hospitals, Comstock said. (emphasis added)

Do you think those hospitals will keep the patients for the days (or weeks) it will take to do this check?

A Discovery in the Fight Against Alzheimers & Dementia

2005-07-14T16:08:00.000-07:00

The Washington Post is reporting that a new study may have identified a protein linked to memory loss:

Some recovery of memory may be possible in the early stages of Alzheimer's disease, suggests a provocative new study in mice that could help researchers open a two-pronged attack against the mind-robbing illness.
The research shows a mutant protein named tau is poisoning brain cells, and that blocking its production may allow some of those sick neurons to recover. It worked in demented mice who, to the scientists' surprise, fairly rapidly regained memory.
The work is years away from being useful in people. There are no drugs yet to block tau, and most of the recent search for Alzheimer's treatments has focused instead on another protein, called beta-amyloid.

--snip--

It's important research because it bolsters the notion of targeting those sick neurons in hopes of one day reversing at least some of dementia's damage, said William Thies, scientific director of the Alzheimer's Association. Today's Alzheimer's drugs only treat symptoms.
"If you can actually rescue some of these sick cells, that really brings the possibility of return of some function, which would be of tremendous value," he said.

Read the whole thing.

CMS Updates

2005-07-12T07:18:00.000-07:00

Proposed Rate Increase
The Center for Medicare & Medicaid Services (CMS) announced on Friday a 2.5% increase in Medicare payment rates for 2006. Mark McClellan, the administrator for CMS, believes that this increase will help to home health care agencies to provide the best care possible for beneficiaries. The increase is expected to increase payments by $330 million for 2006.

CMS is also proposing an adopted Core Based Statistical Area market definition that would adjust payments based on geographical area. These changes, if adopted, would bring an additional .7 percent increase in fees to rural homes. The net changes would have a 3.5% average increase for rural homes and a 2.3% increase to homes in urban areas.

CMS to Award Demonstration Projects to Improve Care for Patients with High Medical Costs
CMS awarded demonstration projects to six organizations to operate for a term of three years with the goal of increasing care to beneficiaries with complex medical problems. The focus will be on preventive care, and an effort will be made to improve on the continuity of medical services.

The Care Management for High Cost Beneficiaries (CMHCB) demonstration will test the ability of direct-care provider models to coordinate care for high-cost/high-risk beneficiaries by providing such beneficiaries with clinical support beyond traditional settings to manage their conditions and enjoy a better quality of life.

Two organizations will be working in Texas, Care Level Management (CLM) and Texas Senior Trails (TST). CLM will be working in select Texas counties as well as Florida and California while TST will be operating in 48 Texas counties in the panhandle.

The administrator of CMS believes that these changes will help reduce the fragmentation of care and lead to increases in overall quality of care that patients receive. The awardees of these demonstration projects will receive a monthly fee from Medicare to cover administrative and management expenses, but they will assume some financial risk for the increased quality of care.
Awardees will employ a variety of models including:
- support programs for healthcare coordination,
- physician and nurse home visits,
- use of in-home monitoring devices,
- provider office electronic medical records,
- self-care and caregiver support,
- education and outreach,
- tracking and reminders of individuals' preventive care needs,
- 24-hour nurse telephone lines,
- behavioral health care management, and
- transportation services.

In addition, awardees will have the flexibility to stratify targeted beneficiaries according to risk and need and to customize interventions to the meet individuals' personal needs.

Long Term Care Becomes Focus of Medicaid Reform

2005-06-28T07:38:00.000-07:00

Health care, and particularly Medicaid, has become a focal point of politics as its portion of the federal budget has increased. The New York Times recently published an article here detailing a number of reforms to make on the system to help keep the budget from spiraling out of control. Specifically, law and policy makers have began to target long term care as an area that offers the most potential for reform.

Long term care accounts for nearly a quarter of Medicaid's $321 billion that is budgeted for this year, making it an attractive target for reform. Add to that the fact that nearly 78 million baby boomers will be entering into the demographic needing long term care, and you can see why governors, Congress and the President have all decided to focus on reforming the system.

Under the current system, Medicaid pays for approximately two-thirds of the nation's 1.6 million nursing home residents, many of whom are not the impoverished individuals the program was intended to cover. A number of proposals that are likely to be enacted are just quick fixes to stem the program growth from going out of control. These proposals include:
- extending the lookback period from 3 to 5 years, preventing individuals from dumping assets right before they go into long term care;
- requiring reverse mortgages on family homes to pay for nursing home costs;
- having states place liens on homes after residents die to reimburse the state for medical costs;
- encouraging long term care insurance by offering tax benefits; and
- closing loopholes allowing the elderly to protect certain assets.

All these changes would have just a modest impact on the overall cost of nursing home care, which is likely to see the number of residents enrolled triple by 2050.

Nursing Homes Get a New Look

2005-06-27T12:00:00.000-07:00

As National Public Radio (NPR) reported here last week, several nursing home reformers are pushing for a new look for nursing homes, one that emphasizes a home-like atmosphere over institutional efficiency. One project that is receiving praise is the Green House Project, lead by Dr. William Thomas. His hope is that older people will thrive and live happier lives in smaller facilities that resemble the homes they lived in their whole lives. While others in the past have tried to make existing facilities more home-like, Thomas believes that we need to start over from scratch.

Thomas is in favor of nursing homes that are individual units, that blend into the community that surrounds them, whether it be high rise apartment buildings or suburban neighborhoods. Each unit would have 6-10 residents each with a private bedroom, a common area and a kitchen dining area where they would share their meals. The design is intended to give residents more privacy and control of their lives, where they decide when and what to eat and how to decorate their living areas. The focus of the new homes will be to improve the quality of life of elders by restoring their dignity and individuality.

One of the focuses of the new projects is to make the homes blend in with the surrounding community. Current nursing homes have been designed and built to maximize their efficiency at providing medical services to large groups of people. The fact that the long-term health care system is currently stretched to capacity has only served to reinforce their emphasis on institutional efficiency. Green Houses would be furnished by the residents with items from their old homes. They would all have private rooms, to promote privacy. The center of the residence would be a common area where residents would share their meals. There would be no central nursing station, since the residents would keep their pills in their own rooms. Nurses would come by as needed but would not have a permanent presence in the home.

Another core element in a Green House would be an emphasis on meal time as an opportunity for residents to bond and nourish their bodies as well as their souls. Current facilities must struggle with the logistical difficulties of large scale food service, which often depersonalizes the dining experience. A meal in the Green House would take much longer, but would be intended to be a social as well as nutritional experience.

All of the changes proposed by Dr. Thomas would serve to increase the amount of affection that elders receive. Thomas believes that aging should not be viewed as a medical problem, to be treated with professional distance, but rather a stage of life to be embraced. He believes that the residents should be allowed to befriend those who care for them, and that that affection will increase their quality of life.

Rural Nursing Homes Worried Over Death of "Granny Tax"

2005-06-22T07:29:00.000-07:00

Many rural nursing homes are afraid of potential bankruptcies or closures due to the death of the so-called "granny tax" in the state Senate this session. The tax, which is technically called the quality assurance fee, was a proposed $7 a day fee placed on a nursing home bed that was privately funded that was estimated to generate around $1 billion in Medicaid reimbursements.

Many nursing home providers feel that they lose money on Medicaid patients. On average, about 30% of the beds at a given facility are private pay. In rural areas however, only about half that pay their own way, with the remaining 85% Medicaid recipients. As the cost of health care, including drugs, services and overhead costs, has increased, the amount paid out by Medicaid has not.

Many in the industry were hoping that this tax on private beds would alleviate some of the cost. The state estimated that the tax would generate $440 million in payments from nursing homes, leading to an additional $525 million in federal funding, all filtered back into Medicaid recipients. Governor Perry thought this tax was unfair to patients who pay their own way, who would bear the burden of the tax without seeing any increase in their services.

It appears that any increases in the pay rate for Medicaid beds will have to wait a couple years. While no cut has been proposed, the state did cut $92 million from its budget for Medicaid in anticipation of the passage of this tax. State officials promise no cut will be made, and the state will have to find the money somewhere to make up the deficit.

Click here for a full article.

Provider Letter Update: HCS Survey by DADS

2005-06-21T08:34:00.000-07:00

A recent provider letter outlined what Home and Community Support Services Agencies (HCSSA) can expect during a DADS survey.

Entrance Conference
The survey will begin with an entrance conference with the survey administrator, the supervising nurse and an authorized agency representative. At this time the survey process will be fully explained. During the course of the survey a minimum of 11 clinical records will be reviewed, and at least 3 home visits conducted. Also, the surveyor will examine the following systems:
- administrative records;
- complaint tracking system;
- quality assurance plan;
- policies and procedures; and
- employee records and qualifications.

During the survey the surveyor will require copies of all documents reviewed to assist in determining any findings.

Exit Conference
After the conclusion of the survey, an exit conference will be conducted on site with agency representatives. At this point, any preliminary findings will be explained and all in attendance will be required to sign an attendance sheet.

Statement of Deficiencies
A statement of deficiencies will be mailed to your agency following the exit interview. Licenced agencies will receive a statement within 10 business days, Medicare-certified facilities within 10 calendar days.

Plan for Corrections
If deficiencies are cited, your agency will have 10 calendar days to return a Plan of Correction (PoC) to the DADS Regional HCSSA manager addressing the deficiencies and estimated correction dates.

Informal Review of Deficiencies Process (IRoD)
If you disagree with any cited deficiencies, you may submit an IRoD form. This must be submitted on agency letterhead, and a PoC must still be submitted for each deficiency, regardless of whether you file an IRoD. You also have 10 calendar days from the receipt of the statement of deficiencies to submit this form.

Arbitration Agreements--Good Case!

2005-06-20T16:00:00.000-07:00

The Texas Supreme Court has issued a favorable ruling for Medicare providers who use arbitration agreements. In a case involving a Texas nursing home, the Court ruled that the trial court should have compelled arbitration. You can find the case by clicking here.

The Court considered the question as to whether the Federal Arbitration Act should apply in the case or the Texas Arbitration Act. The Texas Act is not as favorable to providers as the Federal Act is because the Texas Act requires that the resident's attorney must sign the Arbitration Agreement.

How many residents have attorneys representing them upon admission to nursing homes and how many would be willing to retain one for the purpose of signing such an agreement. Furthermore, wouldn't most attorney's tell their clients not to sign such an agreement--especially if the attorney makes a living suing nursing homes?

Fortunately, in this case, the Texas Supreme Court recognizes that because of Medicare, these agreements involve interstate commerce and are preempted by Federal law. Thus, the federal statute applies and an attorney's signature is not required by the Federal Arbitration Act.

There is no mention of what happens if the resident is on Medicaid. However, the same reasoning should apply since federal monies are involved in that program as well.

Update on Quality of Care Study by OIG

2005-06-20T11:29:00.000-07:00

A recent OIG study concluded that while the majority of consecutive inpatient stays at acute care hospitals (rehab units, psychiatric units and skilled nursing swing beds) were medically necessary, approximately 20% of the sequences were associated with poor care or fragmented services leading to multiple admissions. The expenditures due to these sequences to Medicare is estimated to be $267 million.

Quality of care problems include:
- failure to treat patients in a timely manner;
- inadequate planning; and
- inadequate monitoring and treatment.
In addition to quality of care issues for multiple stays, the OIG estimates that 10% of individual stays involves problems with the quality of care. An additional 3% of admissions are thought to involve inappropriate admissions and treatment, improper treatment facility or premature discharge.

Unnecessary fragmentation of services involves giving services that are medically necessary but in a manner that leads to an increased number of stays.

Recommendations
The OIG recommends that CMS take the following actions to address the aforementioned issues:
1. Direct Quality Improvement Organizations (QIOs) to monitor the quality of inpatient services provided within a sequence at these types of facilities.
2. Instruct QIOs and fiscal intermediaries to monitor medical necessity of these stays during consecutive sequences.
3. Reinforce efforts to educate providers about the proper uses of skilled nursing swing beds.

The CMS agreed with the findings of the study, but believed that existing systems already covered most of the OIG's recommendations. CMS will put together an article that will address the OIG's third recommendation for increased education on the appropriate uses of skilled nursing swing beds.

We can only hope that the OIG doesn't change the requirements again.

CMS Instructs State Survey Agencies On Compliance Dates

2005-06-08T08:17:00.000-07:00

A State or two in Region VI appear to be confused about what compliance date to assign when a facility clears on a revisit. Thus, CMS sent a recent Regional Survey And Certification Letter to all State Survey Agencies to clarify the issue. Click here to see the letter.

It is suspected that the letter was prompted by a conversation between CMS and the unamed State Survey agencies that went something like this:

"If you find deficiencies on an initial or annual visit, you are to send the facility the 2567 by the tenth business day after you exit the facility. Got it little buddy?"

"Got it Skipper. After the exit, I am to leave the facility and then to get the 2567 back to them within 65 days."

"No! No! No! You are to get the 2567 back to them within 10 business days."

"Okay. Okay. I've got it. I am to wait until 10 days before DPNA goes into effect to get them the 2567."

"..............."

"Let's go on to something else for the moment. If the facility clears on the first revisit, you are to assign the compliance date as the date the facility says it corrected if the facility provides documentation to verify continued compliance after correction was achieved. If the facility has no correction-monitoring data--but is in compliance--the correction date will be the last date on the plan of correction submitted by the facility. Understand?"

"?"

"If the facility clears on the second revisit and the facility has collected data showing correction and verifying continued compliance--the date proven by that data is to be the compliance date. If they have no data, the date of the revisit is the compliance date."

"I think I get it! When we go back in after the initial survey, if the facility clears--the compliance date is the date of our revisit. Right, Skipper?"

"........."

("What did I do to deserve this?")

"Huh?"

If you have a bad survey, it is important that you:

Thoroughly document what you actually did to correct--not just your plan,
Collect monitoring data that will prove that the correction was effective. (e.g. collect data demonstrating that your staff is doing things correctly and demonstrating competency)
Record the monitoring data in an understandable way so that you can prove to the re-survey team that compliance was achieved on your preferred date.
Have this data handy for the revisit

If you live in the unamed State(s) that are not getting your 2567 to you in a timely manner and causing you to go into DPNA because of insufficent time to get things together:

Begin your correction the second the surveyors exit.
Consider writing letters to CMS documenting the violations of procedure
Contact your attorney for assistence.

Updates on Letters to Providers

2005-06-07T15:53:00.000-07:00

Ipecac Requirements (Assisted Living and Adult Day Care Facilities)

In a Provider letter Texas DADS tackles the issue of facilities stocking Ipecac for use as treatment for poisoning by inducing vomiting. Apparently, some in the Medical Field question its use and whether on not it should be removed from first aid kits. The letter notes that the use of Ipecac is currently being investigated by the FDA--though it is still available.

The provider letter notes that the Texas Poison Center, however, recommends only using it in the most dire of circumstances and only after contacting a physician or the Poison Center at 1-800-222-1222. Click here to see the letter.

The letter goes on to say:"DADS will accept the immediate availability of the poison center phone number listed above and Ipecac, if the facility chooses to stock and maintain it, as meeting TAC requirements. "

The letter definitely strikes a cautionary note and places the burden on the facility to take steps to determine if the use of Ipecac is appropriate for the particular situation at issue. So always call the Texas Poison Center before administering it.

New Requirements for Reporting Deaths for Licensed Adult Care Facilities

As you know, the Texas Office of the Attorney General (OAG) recently implemented new requirements mandated by Senate Bill 826 that require, under certain circumstances, that a general manager of a facility must report the death to the OAG within 24 hours. Additionally, the general manager must submit a resident death form within 72 hours. Now DADS has sent a provider letter to Adult Day Care Facilities clarifying that the requirement applies to them as well. Click here for a copy of the letter. A justice of the peace must be notified if either:

the physician is unable to certify the cause of death, or
the death occured in a county without a medical examiner's office or not part of a medical examiner's district.

Medicare Proposes Rule to Improve Hospice

2005-06-07T13:15:00.000-07:00

A proposed rule change by the Centers for Medicare and Medicaid Service (CMS) is expected to ease regulations on Hospice providers, allowing for increased levels of care and an increase in the approximately 700,000 current Hospice beneficiaries.

CMS Administrator Mark B. McClellan, M.D., Ph.D. believes that this proposal will help move CMS closer to their "overall goal of high quality for all Medicare beneficiaries."

The proposed rule will have the following changes:

- adding patient assessment procedures that allow for more timely identification of patient needs;
- amending the quality assurance requirement to be more comprehensive and more accurately tailor the care to the patient;
- allows Hospice to contract for some services (such as highly specialized and infrequently needed nursing services);
- replaces requirement of having an RN to provide 24-hour service with an outcome-oriented requirement that focuses on the results of care provided to patients and families;
- provides guidance for hospices that provide care for nursing home facilities.

The proposed rule would adopt contemporary standards of care and would take recommendations from the Secretary's Advisory Committee on Regulatory Reform, the OIG, the Office of Disability, Aging and Long-term Care Policy and the public.

To view the proposed rules click here.

Texas Adopts Amendment to Reimbursement Methodology for ICF/MR

2005-06-07T12:55:00.000-07:00

Clarification (note: some of the categories are similar and confusing, pay close attention to the repayment periods):
The Texas Health and Human Services Commission (HHSC) adopted an amendment to the reimbursement methodology applied to Intermediate Care Facilities for individuals with mental retardation (ICF/MR).

The amendment includes several changes in references from MHMR to DADS to reflect the changes in structure of the Health and Human Service Agencies. For example, 1 TAC § 355.457 (c)(2)(B) and (C) both change the agency that facilities are required to pay from MHMR to DADS.

For Fiscal Accountability Repayments Made Between April 5, 1998 and January 1, 1999.
The amendment also reinstates language that was inadvertently omitted from a previous amended version of the adopted text. The relevant clarifications include repayment requirements for providers spending between 85 and 90% of direct service revenues will pay DADS 50% of the difference between direct service costs and 90% of direct service revenues. § 355.457 (c)(2)(D)

For Fiscal Accountability Repayments Made After January 1, 1999.
The language of § 355.457 (c)(3) now provides, that for all fiscal accountability repayments for a providers fiscal year that begins on or after January 1, 1999:
- That the total direct service revenue is equal to the direct service portion of the rates multiplied by the number of allowable units paid for services provided during the reporting period:
- Providers whose direct service costs are 90% or more are not subject to repayment under this section § 355.457 (c)(3)(A);
- Providers whose direct service costs are less than 85% of direct service revenues will be required to pay DADS the difference between direct service costs and 95% of direct service revenues § 355.457 (c)(3)(B); and
- Providers whose direct service costs are between 85 and 90% of direct service revenues are required to pay DADS 75% of the difference between the direct service costs and 90% of the direct service revenues § 355.457 (c)(3)(C).

For a line by line reading of the text click here.

Long-term Disability Coverage Expanded by Legislature

2005-05-31T12:10:00.000-07:00

The Texas Legislature recently adopted budget provisions that would allow the Commissioner of Health and Human Services to choose managed care programs for Medicaid recipients. The new programs will be created in San Antonio, Dallas, Austin, Fort Worth, Corpus Christi, El Paso and Lubbock.

The plan will be implemented in stages, with a pilot program being created in Dallas that will be modeled after Houston's STAR+PLUS program. The Commissioner will then seek public comments and recommendations from the citizens in the remaining locations before implementing the programs in those cities.

Amerigroup, a Virginia based company that manages the program in Houston, believes that the expansion of these types of programs can offer excellent health care services at a substantial cost reduction to tax payers.

Discharging without Placement Plans Results in Forced Readmission

2005-04-18T13:04:00.000-07:00

In a recent case, Paschall v. DC Department of Health (April 7, 2005), The District of Columbia Court of Appeals held that residents discharged from a nursing facility without a description of the resident's new location, could force the facility to readmit them.

What happened?

Samuel Paschall was a handful and difficult to deal with. He was monitored closely from the date of his arrival.

Some time after his admission, Paschall was discharged to a hospital due to complaints of abdominal pain and the nursing facility used his absence to issue an "Advance Notice of Discharge."

The notice lacked two federal law requirements for such discharge notices: facility must usually give 30 days advance notice, and facility must include a description of the location to which the patient will be discharged.

The facility quickly filled the vacancy. The attorney for Mr. Paschall asked the court to require that Paschall be readmitted to the facility as soon as Medicaid beds became available.

The court ruled that the Administrative Law judge could, after a finding that Paschall still wished to reside at the facility, force the facility to readmit him per Paschall's request. Paschall, however, would still have to establish that his return to the facility would not endanger himself or others.

What does this mean for nursing facilities?

The significant holding in this case was that the Administrative Law Judge has the authority to readmit an improperly discharged patient. In this case, the court found that the facility's failure to comply with the 30-day discharge notice made it impossible for the court to timely hear the case and have the opportunity to stay the discharge. The court found it unreasonable to deny Administrative Law Judge the power to restore the status quo ante (Paschall's residence at the home).

Web-Check your Medicare Program

2005-04-04T14:15:00.000-07:00

An article in the Star-Telegram discussed the federal Medicare program unveiling of a new website that enables consumers to compare the quality and performance of hospitals to national standards.

While the website is currently limited in both scope and functionality, it represents a significant step forward in the diagnosis of Medicare programs in hospitals and care facilities throughout the country.

The site currently only monitors three treatments: heart failure, heart attack and pneumonia, but will be expanded to include other treatments and medical care in the future.

Putting a Bull's Eye On Your Back & Liability Insurance

2005-04-02T11:15:00.000-08:00

Bulls Eye

Sid Rich with the Texas Association of Residential Care Communities is reporting in his newsletter that HB 850 has been introduced. The bill would mandate that nusing homes post signs indicating whether or not the facility carries liability insurance. The bill is pending in Committee.

Sid Rich is concerned because he was the only long-term care lobbyist who showed up to oppose the bill. This is ridiculous. I agree with Sid when he argues that this is putting a "bulls-eye" on your back.

What are your associations thinking?

Change In New Mexico IDR Practice

2005-03-31T14:51:00.000-08:00

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.

UPDATE:

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.

Joint Investigations of Abuse & Neglect in Nursing Homes

2005-03-30T18:14:00.000-08:00

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.

When Ethics, Morals or Religion Say “No”

2005-03-21T13:27:00.000-08:00

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.

Accompanying Surveyors

2005-03-10T22:42:00.000-08:00

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.

Ensuring Insurance for new Medicare drug benefit

2005-03-07T12:54:00.000-08:00

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.

The Medicaid Estate Recovery Program

2005-03-03T15:19:00.000-08:00

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

Legislative Proposals Regarding Survey Exits and Outside Accreditation

2005-02-28T12:28:00.000-08:00

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.

How to Save Medicare? Die Sooner?!

2005-02-27T07:40:00.000-08:00

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?

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

2005-02-23T14:30:00.000-08:00

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).

New educational requirements for nursing education

2005-02-21T13:54:00.000-08:00

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

2005-02-21T13:15:00.000-08:00

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

2005-02-21T12:49:00.000-08:00

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.

A Little CMS Bird Chirps In My Ear About Inservices

2005-02-18T14:22:00.000-08:00

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

2005-02-18T12:20:00.000-08:00

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.

Residents get more money and facilities get more forms

2005-02-16T15:01:00.000-08:00

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.

A "Little Side Step" Means You Get Stomped On! The Bed Tax and New Mexico.

2005-01-31T15:31:00.000-08:00

Ooo I love to dance a little sidestep,
Now they see me, now they don't,
I've come and gone,
AND Oooo I love to sweep around the wide step,
Cut a little swathe and lead the people on."

- "The Sidestep," sung by the Governor in The Best Little Whorehouse in Texas

Remember that little song and dance routine in the movie, The Best Little Whorehouse in Texas? The Governor is exulting over his ability to pull the wool over people's eyes.

When will we ever learn about the promises of politicians when it comes to taxes? You may know that New Mexico passed a $8.82-a-day bed tax on nursing homes back in 2004. In order to get it passed, the governor:

...agreed to increase the state's Medicaid reimbursements to New Mexico's 80 nursing homes to cover the cost of the tax, so it would, in effect, be a wash for the homes. The tax was to be paid to the state by the nursing homes, which would then have the option of passing it on to their patients.

The administration also agreed to a bill that would allow the state's 1,200 to 1,500 private pay nursing home residents to deduct the $3,219-a-year tax from their state income taxes by applying for a tax credit.

MSNBC is reporting that the governor wants to take it back. No--not the bed tax. He wants to go back on his word about the tax credit that the private pay nursing home residents are presently allowed.

The idea was that passing such a bed tax would allow the state to get a three-to-one match in federal Medicaid dollars. The Feds were on to that when:

...the Centers For Medicare & Medicaid Services, the federal agency that administers the Medicaid program, ruled that portions of it were illegal under federal law and that the agency would not provide the three-to-one funding match.

It is illegal under federal law to reimburse taxpayers for such taxes, and federal Medicaid officials cited the tax credit as a flaw in the program.

The governor is fighting to preserve the tax and do away with the credit. The legislators who tried to warn that CMS would never accept the plan as written are fighting to do away with the entire tax.

Here's government at work--pass a tax with promises you've been warned you can't, by law, keep--and then do away with the promises--but keep the tax. That's a new twist on the old "read my lips" approach.

What do you bet that the Medicaid reimbursement increase either doesn't happen or that there is an attempt to take it back?

Medicaid and Provider Taxes--A Primer on Economics

2005-01-25T14:20:00.000-08:00

I know that some in Texas support the idea of a provider tax on nursing homes to make up for shortfalls in Medicaid funding. For those who do--and those who don't know one way or another--I invite you to go read Dr. Bob at The Doctor is In about a similar tax his state of Washington contemplates putting on physicians for the same reason--a shortfall of Medicaid funding. I excerpt portions:

The large majority of Washington physicians would prefer to see Medicaid patients, but are quite simply financially unable to do so. For years, both Medicare and Medicaid have operated under an unspoken and hidden tax, paying for less than the cost to provide services while relying on providers to make up the difference from their insured patients.(Me: insert private-pay residents here) As insurance carriers have progressively ratcheted their reimbursements down in response to spiraling health care costs and insurance premiums, subsidizing patients insured under Federal programs such as Medicare and Medicaid is no longer feasible.

--Snip---

The State government in Olympia has come up with an ingenious new plan to solve this crisis: it plans to tax physicians to generate additional revenue to pay for higher Medicaid reimbursements. (Me: Insert nursing homes for physicians)In his final budget, our previous Democratic governor, Gary Locke, proposed a 67% increase in the state business and occupation tax on physicians. Unlike most states, Washington does not have an state income tax, but instead levies a business and occupation tax on gross receipts, as well as a substantial sales tax. The specific tax rate varies by industry and business type. Our new governor, Christine Yanukovich Gregoire, formerly Governor Locke's Attorney General, also supports this idea:

Gregoire said she supports the goal behind Locke's proposal. "I can't imagine that it wouldn't get us more providers," she said. "I hope that means that those who are in need actually have access.

Now, as a physician, it should come as no surprise that I am somewhat resistant to the idea that I have been specially singled out for this honored responsibility. But it really does go beyond my personal reluctance to pay higher taxes -- even narrowly targeted ones such as this proposal. The simple fact is, this legislation, if passed, will not result in "those who are in need actually have[ing] access", but will severely exacerbate the crisis of access to health care for low income individuals in Washington State.

According to Governor Locke's own statistics, Medicaid currently reimburses at 62 percent of Medicare rates. Hence, even without considering the issue of profit, physicians seeing Medicaid patients are already picking up over a third of the tab for provider services in Washington State. The proposed legislation would increase reimbursements to 75 percent of the Medicare rate. So, a substantial new tax will be added for providers, while still paying them less than the cost to provide this care. The income from services to Medicaid patients is not exempt from the tax on gross receipts, and therefore the higher reimbursements will also be taxed at the new rate.

Now Dr. Bob explains the bad economics behind this plan in understandable terms:

Imagine you are selling computers. You build a computer with a supply cost of $1000 (not including your time and expertise to make it), and must sell it retail for $620. Needless to say, this business model will not win you any Nobel prizes in economics. Now the State comes in, and wants to buy a large number of your computers, and offers to pay you $750 a computer -- but is going to nearly double your tax on that $750. Such a deal! It is not hard to see what you will do: you are going to stop selling computers, or sell them only to someone who will pay you more than $1000 -- or go out of business. The end results of this brain-dead legislation is simple: physicians in large numbers will simply stop seeing Medicaid patients, as they will be increasingly unable to afford to do so, no matter how strong their desire to care for the poor.

Perhaps a counter argument to this is that nursing homes--unlike physicians--will have no choice but to admit Medicaid residents in order to survive at all. Dr. Bob--or an economist-- might respond: Perhaps in the short run--but--given the inexorable realities of economics-- how long will it be before Atlas Finally Shrugs?

Reflections On Being A Nurse

2005-01-25T11:19:00.000-08:00

Shrinkette, a psychiatrist, provides a roundup of the reflections of a number of Nurses on what it takes to survive in the profession. She begins with a list of what it takes to be a nurse compiled by a nursing instructor at Top of My Head:

What is takes to be a nurse:
1. To see people at their worst and know it was part of their job to help them in anyway they could.
2. To be exposed to things that many people could never imagine and continue to do their job and not think twice about their career choice.
3. To hold a crying son/daughter after their mother/father had died and cry with them during their pain.
4. To hold a crying mother/father after their son/daughter had died and cry with them during their pain.
5. To get hit and/or punched by a confused patient while working in the emergency room.
6. To be criticized by patients/family members because they thought they did not do enough for their family member.
7. To always be an advocate for their patients and do what it took to give them the best care and do things in their best interest no matter what others thought.
8. To hold the hand of a dying patient who had no family.
9. To have a vision of what nursing was and where it should be.
10.To evaluate their patients’ needs and try their best to see what resources are available to help them.
11. To help the homeless by volunteering

Then there is this from Tales of An Aspiring Nightengale:

I oftentimes wonder what I was thinking, leaving my cushy desk job and going into a high stress job where I'm on my feet for twelve hours at a time, dealing with sickness, life and death situations, and people who want me to do hundreds of things at once. Then I remember why I became a nurse:To save the life of someone who's potentially having a heart attack.To restore blood in an anemic patient so he can go home to his wife and son.To release the nursing home patient back into her community in better health.To ease the mind of a woman who is worried about her ill father.As a nurse you sacrifice a little of yourself: your time, your energy, your dignity, your lunch, your need to pee. But the end result, your impact on your patients and their lives, makes the job worth while.The end result helps me get up the next morning, report to the unit at seven o' clock, and do it all over again.

Kind of gives us non-nurses a whole new perspective, doesn't it?

Medicare & Wheelchairs

2005-01-24T15:22:00.000-08:00

The Washington Post reported that CMS has reconsidered its criteria for covering motorized wheelchairs. According to the writer, Cindy Skrzycki:

The Medicare program recently introduced three major regulatory initiatives to tighten up eligibility, reduce payments and assure the legitimacy of the providers.

Then you have to read through almost the entire long article about the history of this to find out what the initiatives are. I've excerpted them for you here:

Reacting to the pressure, CMS said it was reverting to its original qualifications criteria and was talking with industry and contractors' medical directors about their concerns. It convened a wheelchair working group last summer, and its recommendations have become part of a major reform effort underway within the agency.

It anticipates changing to a "functional" definition to determine who gets a chair -- in other words, can a person do daily activities without one? It also proposes requiring physicians to have face-to-face contact with patients before a prescription for a chair is written. The agency wants to change coding for the chairs to more accurately represent how much the government should be billed. And it plans to install more checks to make sure suppliers are legitimate.

How will this affect you?

Medicare Prescription Drug Rules Now Issued

2005-01-23T18:58:00.000-08:00

Fifteen hundred pages of rules governing the Medicare Prescription Drug program have now been published in final form. Are you feeling a little overwhelmed at this point?

The Washington Post published a piece on this describing the changes made to the rules as proposed last summer:

The agency also outlined several changes made in the regulations since a preliminary version was announced in July. They now assure that beneficiaries have access to convenient pharmacies, and charity payments have been added that can count toward true out-of-pocket spending needed before catastrophic coverage kicks in.

Rules also are being put in place to ensure that beneficiaries will be able to get drugs that might not be on the plan's list and to ensure that decisions whether medications would be covered under the plan are made within 72 hours or faster for expedited requests, McClellan said.
The plan guarantees that beneficiaries living in nursing homes will be able to enroll in a drug plan and provides automatic enrollment for people eligible for both full Medicaid and Medicare benefits to avoid gaps in coverage.

The article gives an overview of the plan:

The rules create a new regional Medicare Advantage program for preferred provider organizations, with 26 regions. All regional PPO plans are required to offer benefits identical to those of traditional fee-for-service Medicare.

Under the new program, participants will pay $35 monthly premiums and the first $250 in drug costs. Medicare will pick up 75 percent of the next $2,000 in prescription expenses. After that, a gap is built into coverage during which participants are responsible for the entire drug bills until costs top $5,100, after which the government pays 95 percent.

In a separate article, the Washington Post writes that the Administration is going to automatically sign up millions of low-income seniors:

After a lackluster response to its Medicare drug discount card, the Bush administration announced yesterday that it will automatically enroll millions of low-income seniors in the full drug benefit program when registration begins next fall.

Yet another article in the same paper says that Medicare will extend coverage for surgically implanted heart- shocking devices for people with weakened hearts:

The government has decided to expand its coverage for surgically implanted heart-shocking devices for people with weakened hearts, in what could be the most expensive single decision in Medicare's history, federal officials said yesterday.

More than half a million Americans with the progressive heart-weakening condition known as congestive heart failure could be eligible for the battery-powered implants and accompanying surgery under the plan, which Medicare officials said they will roll out in the next week or so.

Do Your Residents Use Plavix?

2005-01-23T18:07:00.000-08:00

The New York Times published a piece about a study raising questions about its safety:

Patients taking Plavix, a popular and expensive antistroke drug, experience more than 12 times as many ulcers as patients who take aspirin plus a heartburn pill, a study to be published today in The New England Journal of Medicine found.

Up to half of those now taking Plavix do so because their doctors assume that Plavix is safer on the stomach than aspirin, said Dr. Francis K. L. Chan, the study's lead author. Both the American College of Cardiology and the American Heart Association recommend that heart and stroke patients at risk of developing ulcers be given Plavix instead of aspirin.

Here is a description of how Dr. Chan conducted his study:

Dr. Chan said he was surprised to find that almost no studies had been done to confirm whether this assumption was true. He found 320 patients whose ulcers had healed and gave half of them Plavix and half of them aspirin plus Nexium, a heartburn pill. He followed them for a year.

However, the physician blogger over at DB's Medical Rants puts this study in perspective:

Reports like this make the news, especially the financial news. The challenge that clinicians and clinician scientists must understand involves putting each new data piece into perspective. Several questions come to mind immediately, prior to reading the remainder of the article:

Would PPIs (proton pump inhibitors) also decrease ulcer rates in Plavix treated patients?
Which patients really benefit from Plavix?
What duration of therapy should we use?
How important were the ulcers (did they bleed, cause pain, or were they “incidental” findings)?
Thirteen of the patients taking Plavix, or 8.6 percent, experienced renewed ulcer bleeding during the year while just one, or 0.7 percent, of those taking aspirin and Nexium had an ulcer bleed.
--Snip--

This is the wrong study. The results make Plavix look bad, but it does not answer the key questions:

Given a patient with NO ulcer history - does Plavix induce ulcers?
How would a combination of Plavix + a PPI compare with ASA + a PPI in patients with previous ulcer?

We clearly should understand the risks of Plavix, but this article does not really help. Most patients who receive Plavix, do so for clear indications. We need to understand side effects in patients who resemble our patient populations.

What About Tort Reform?

2005-01-21T13:16:00.000-08:00

Dr. Charles alerts us to an archived editorial on tort reform published in the New York Times. Common Good excerpts the article here. The title of the article is It's Time to Try Special Health Courts. Here's the excerpt:

We hold no brief for the current medical liability system, which does a poor job of compensating most victims of medical malpractice. An authoritative study of thousands of patients in New York State found that the vast majority who were harmed by medical errors or negligence never filed suit, whereas the vast majority of those who did file suit were not actually harmed by negligent doctors. Some studies suggest that, once a suit is filed, the courts do a reasonably good job of sorting out who deserves compensation, while other research has found that juries are swayed more by the severity of a plaintiff's injuries than by evidence of negligence. But in a medical system that is coming under increased fire for failing to deliver consistent quality in hospital care, it is clear that only a small number of people are being compensated for malpractice.

Common Good makes the following observation:

Not only does the current system fail to reliably compensate injured patients, it also fails to weed out bad doctors. The Times recognized the need for a system that effectively "weed[s] out the small number of negligent doctors responsible for generating most malpractice awards."
The Times also recognized the need for consistent damage awards: "Congress ought to consider requiring guidelines for judges and juries to help determine what compensation is reasonable in a given circumstance."

As proposed by Common Good, special health courts would award damages--in addition to a patient's medical costs and lost income--according to a pre-determined schedule established by experts.

Lou Dobbs weighed in on this issue earlier this month, making the observation that limits on damages for pain and suffering may not be enough. He goes on to discuss European systems where the loser pays all legal costs. We have a mechanism for that in Texas via HB4--but it has to be elected.

And, the Bush Administration is gearing up for some national form of tort reform saying that he rejects the idea of state by state tort reform " because he said trial lawyers simply go to the states with the weakest guidelines."

The continuing need for tort reform in the field of health care is exemplified by this article picked up by Dr. Kevin. Dr. Kevin summarizes the case:

Doctor prevails in malpractice case, but was it frivolous to begin with?It was a case of a bronchoscopy for hemoptysis. The patient apparently consented to the procedure, but not the subsequent biopsy that occurred (which is normally routine in these procedures). A damned if you do or don't situation. What if a suspicious lesion was found, but wasn't biopsed? Surely the doctor would have been sued anyways for missing a potential cancer.

What kind of lawyer took this case?

Ms. Manners For Surveyors

2005-01-17T19:04:00.000-08:00

Representative Deshotel has filed a bill which mandates that surveyors treat nursing facility staff with courtesy during inspections. It reads specifically:

Sec. 242.0447. DUTIES OF REPRESENTATIVES. The department shall adopt written policies requiring representatives of the department to treat the residents of an institution and the institution's staff with courtesy, consideration, and respect during an inspection, survey, or investigation conducted under Section 242.043 or 242.044 or in accordance with Chapter 32, Human Resources Code.

To enforce this section, the statute calls for the creation of an Internal Affairs Office to investigate complaints:

Sec. 242.0448. INTERNAL AFFAIRS OFFICE. (a) The department shall establish an internal affairs office to investigate complaints by institutions related to an inspection, survey, or investigation conducted under Section 242.043 or 242.044 or in accordance with Chapter 32, Human Resources Code. (b) An institution inspected, surveyed, or investigated by the department or by a representative of the department may report a suspected violation of department policies adopted under Section 242.0447 to the internal affairs office. (c) The internal affairs office shall investigate complaints received from institutions regulated under this chapter.

The Department may not retaliate against a complainant and, if it is found that a violation occurred--the surveyor survey, inspect or investigate the facility after the date such a finding is made:

d) A representative of the department may not retaliate against an institution for filing a complaint with the department's internal affairs office under Subsection (b). A representative of the department who violates this subsection may not inspect, survey, or investigate the institution after the date the department determines the violation of this subsection occurred.

It seems to me that this statute should specify how the facility is to be notified of the results of its complaint. The statute should also have time frames within which the complaint is to be investigated and acted upon.

Also, shouldn't this concept be applied to all providers surveyed, investigated and inspected by DADS?

Resident Choice of Pharmacy vs. Facility Choice of Medication Distribution System

2004-12-22T13:21:00.000-08:00

Do you use a pharmacy that has adopted the Opus system or a similar system? Have you specified that any pharmacy who does business with your facility must use the Opus system including the part where the pharmacist generates the MARS and physician order forms and provides other services?

If so, you may run afoul of DADS. Recently, a facility was cited for having such requirements on the basis that this is a violation of resident rights. As you know Rule 19.1502, Choice of Pharmacy states:

A Medicaid-certified facility must have written agreements with its provider pharmacies that define required services. These agreements will not be considered to abridge the resident's freedom of choice of pharmacy services when they require labeling, packaging, and a drug-distribution system according to facility policy. The drug-distribution system must be accessible to all pharmacies willing to meet the distribution system requirements. The agreements must require the following:

(1) that the resident's pharmacy services be provided by a pharmacy on a 24-hour basis for emergency medications; and

(2) that the resident's medications be delivered to the facility on a timely and reasonable basis.

(c) The resident's choice of pharmacy provider must be in accordance with §19.406(c) of this title (relating to Free Choice).
(emphasis added)

According to a source, the legal department at DADS reads this to mean that requiring pharmacies to have the ability to generate the MARS and physician order forms is too expensive a requirement for many "Mom and Pop" pharmacies. DADS , thus, takes the position that you can't require that pharmacies go over and above what the standards require or you are unduly restricting the resident's choice of pharmacies.

I have a few questions for DADS about this. How are you defining a labeling, packaging and drug distribution system? Are you saying that any pharmacy system that does more than providing services on a 24 hour basis and delivering on a timely basis to be over an above the standards? I'll try to find this out and will report back.

Word of warning: If any of you have changed to this system and have, as a result, made a local pharmacist mad--beware.

They're After Aleve Now

2004-12-22T11:45:00.000-08:00

Doubtless, you've all heard the news about Vioxx and Celebrex and the allegation that those drugs increase the risk of heart attack or stroke. Now an Alzheimer's Prevention Study is being halted because Aleve, one of the medications they are using in the study, contains naproxen, the same ingredient contained in Celebrex. The subjects of the study were being administered Aleve, Celebrex or a placebo. I cringe to imagine of the activity going on in offices of plaintiff's personal injury lawyers over these revelations.

In fact, I don't really have to imagine. After the news about Vioxx came out, I received a letter from one of these lawyers, essentially soliciting potential clients who might have heart problems and who have been taking Vioxx. In case you didn't know this, plaintiff's lawyers send these kinds of letters out to other lawyers all the time.

All I can say is that there is NO drug without risks. That's why physicians are involved in prescribing drugs like Vioxx and Celebrex. Most patients benefit greatly from these drugs. It's a miniscule few who have adverse affects.

The fact that the few is miniscule will not stop predatory lawyers from attempting to feed on the bodies of the pharmaceutical companies making these drugs. And, it is probable that most of the cases will involve people who have heart problems because they are old. These same people will have arthritic pain because they are old. But the plaintiff's personal injury lawyers will find expert witnesses willing to prostitute themselves to testify that the drugs caused the heart problems. That's how it works in the realm of products liability.

If you think that the Pharmaceutical Industry is evil, go read this article written for Harper's Magazine by Mark Twain about the state of health care in 1890 when they were still using leeches for everything. (Hat tip Dr. Charles)

You want true tort reform? Figure out how to stop State-funded law schools from pumping out so many lawyers.

"Who's on First?" regarding Employee Misconduct Registry Appeals at APS

2004-12-22T10:44:00.000-08:00

The State reorganization was bound to cause some confusion as agencies reformat and try to fill in the gaps forgotten by the Legislature. We've had occasion to look into the issue of what is going to happen to the appeals that concern placement of an employee on the Employment Misconduct Registery. It appears that these appeals are in limbo right now.

Our sources at some of the agencies tell us that Department of Family Protective Services does not want to hear these appeals itself. It wants another agency to hear them. I say good for DFPS!!

The problem is that Chapter 253 of the Texas Health & Safety Code seems to require that these appeals be heard by the agency that made the determination. This requirement poses a conflict of interest even if you have a totally fair Administrative Law Judge.

There is some talk that DFPS is trying to convince HHSC to hear the appeals. If that happens, they will probably be shipped off to SOAH.

That's the best thing that could happen in my opinion.

Double Penalties

2004-12-16T08:49:00.000-08:00

If you have a pending nursing home Civil Penalty case based on a survey that predates September 1, 2003 and you have already paid a Federal Civil Monetary penalty, the Fort Worth Court of Appeals has rendered a favorable decision. The case is The State of Texas v. Haltom Medical Investors, L.L.C. d/b/a Haltom Convalescent Center.

The facts of the case involve a survey done in July, 2002 which resulted in a recommendation of Federal Civil Money Penalties and a referral to the Texas Attorney General for Civil Penalties. The CMP's and Civil Penalties were to arise from the same facts. The nursing home accepted the Federal waiver and paid the reduced CMP amount. In January of 2003, DHS got around to sending a letter to the Texas Attorney General referring the matter for Civil Penalties.

On September 17, 2003, the OAG filed suit. The problem for the State is that during the 2003 Legislative session, the Texas Legislature changed section 242.070 to read:

The department may not assess more than one monetary penalty under this chapter and Chapter 32, Human Resources Code, for a violation arising out of the same act or failure to act, except as provided by Section 242.0665(c). The department may assess the greater of a monetary penalty under this chapter or a monetary penalty under Chapter 32, Human Resources Code, for the same act or failure to act.

The nursing home had already paid the CMP and argued that the changes in the law which were effective on September 1, 2003 precluded the State from collecting additional monetary penalties. The State argued that the Civil Penalties were assessed in 2002 before the change in the law and that the prior law applied allowing the State to collect additional monetary penalties. Apparently, the State's idea of assessment was the letter sent with the 2567 indicating that DHS was recommending referral to the OAG for imposition of Civil Penalties. Of course, there was no notice in the letter about how much the Civil Penalties would be or for which violations the CP's were being pursued.

The OAG also argued that giving notice that the State was seeking Civil Penalties is the same as assessing them. The trial court and Court of Appeals decided otherwise. The Court of Appeals looked at the Health & Safety Code, section 242.067(g) which says:

If the person charged with the violation consents to the administrative penalty recommended by the department, does not timely respond to a notice sent under Subsection (c) or (e), or fails to correct the violation to the department’s satisfaction, the commissioner or the commissioner’s designee shall assess the administrative penalty recommended by the department.

Also, the 2002 TDHS annual report to the Texas legislature interprets the term assess differently from the State's argument against Haltom. It says:

Penalties assessed are the final actions after the appeal process has been completed (or an agreement to settle has been reached) and a final amount has been decided. The facility is notified of the amount to be paid. There may be a lump sum payment or a monthly payment scheme agreed upon during the appeal or settlement process.

Thus, it appears that if the OAG hasn't already collected or settled a Civil Penalty matter pending from a pre-September 1, 2003 survey--and the facility has already paid a CMP, the State is out of luck according to this decision.

The case was delivered on December 9, 2004. I'll continue to watch it in case further motions or appeals overturn the decision.

Adjusting To The Medicare Drug Prescription Plan

2004-12-05T17:07:00.000-08:00

The Robert Pear from the New York Times has published a piece opining that confusion will be caused by the fact that the Medicare Drug Prescription Plan may cause confusion for nursing home residents as a result of the fact that residents will be allowed to choose between two or more government subsidized plans. The article states:

The premise of the law is that Medicare beneficiaries will carefully compare these plans and enroll in the ones that best meet their needs.

But more than one-third of nursing home residents have Alzheimer's disease or another form of dementia, so they cannot easily compare the costs and benefits of different plans.

Bush administration officials said they were seeking ways to meet the special needs of nursing home residents. Dr. Mark McClellan, administrator of the Centers for Medicare and Medicaid Services, said the administration would ensure that beneficiaries had access to "all medically necessary drugs."

And:

Pharmacists express dismay at the prospect that nursing home patients will be in different drug plans covering different medicines.

"If nursing homes have to deal with multiple formularies from multiple prescription drug plans, that will result in chaos and an increased potential for medication errors," said Thomas Clark, policy director for the American Society of Consultant Pharmacists, whose 7,000 members specialize in drug care for the elderly.

My suggestion is to review your policies and procedures to deal with the issue. If you have a plan in place in anticipation of these issues, it is doubtful that chaos and medication errors will be the rule rather than the exception at your facility.

Will Work For Laws

2004-11-21T16:33:00.000-08:00

Sometimes when doing presentations for health providers, I joke about over-regulation of health care by asking that before participants decide to suggest new laws-- they close their eyes and imagine hordes of lawyers running through the Halls of Congress holding cardboard signs that say: Will Work For Laws. I may be joking but the reality of over-regulation is directly addressed by physician blogger Dr. Bob at The Doctor Is In who says:

When last I checked several years ago, Medicare had about 150,000 pages of regulations in the Federal Register, approximately 3 times of the volume of the IRS tax code. American medicine is more highly regulated than Soviet state industry ever was, and getting more so by the day.

He calls his post the Law of Rules, which is very distinct from the Rule of Law. A particularly cogent passage of his article is:

We often hear totalitarian regimes such as China or the former Soviet Union boast of their low crime rates and the safety of their streets. And Islamic countries and cultures often proclaim their inherently higher moral status over us libertines in the West, cutting off the hands of robbers and the like. But while it is possible in large measure to restrict behavior through law and retribution, such measures do not make a society or its individuals moral as a consequence. In fact, the effect is quite the opposite. Laws intended to restrict evil behavior often have the unintended consequence of negatively impacting those intent on good. So, for example, the law designed to discourage fraud in Medicare by the few (a worthy goal) results in less time for patient care, restriction of access to care by the needy, and the exodus of good health care providers to other professions to escape their crushing burden -- all bad outcomes affecting far more people than the few who would game the system. (emphasis added)

We are coming up on a Legislative session next year and health care associations are preparing legislative agendas. I think that as we prepare for this session, we should all go read and reflect on the words of Dr. Bob.

Pitfalls of Pain Management

2004-11-21T15:11:00.000-08:00

You all know that Pain Management is a quality of care concern for DADS. Facilities have been cited for failing to adequately and systemically deal with pain being suffered by residents.

Nursing facilities must, of course, obtain physician's orders for pain medication and increasing dosages and types of medications. Today, there was a column in the New York Times by Sally Satel regarding the criminal liability risks assumed by physicians who are managing pain with narcotics.(You may need to register to read it--it's free though)(here is the cached version) Here is an example from the column:

February 1999, Dr. Frank Fisher, a general practitioner in Shasta County, Calif., was arrested by agents from the California state attorney general's office and charged with drug trafficking and murder.

The arrest was based on records indicating that Dr. Fisher had been prescribing high doses of narcotic pain relievers to his patients, five of whom died. He lost his home and his medical practice and served five months in jail before it was discovered that the patients had died from accidents or from medical illnesses, not from the narcotics he prescribed.

All charges were dropped last year, and Dr. Fisher now has his medical license back. Yet his ordeal lingers as a cautionary tale of what can happen to doctors who treat pain aggressively.

While patient advocate groups as well as survey agencies such as DADS are emphasizing that pain should not be undertreated, the DEA and other law enforcement agencies are stepping up investigation and prosecution of physicians because of an increase in abuse and drug diversion:

The red flags that rightly alert regulators to potential misconduct by doctors are, paradoxically, the very features that can also mark responsible care for intractable pain. These include prescribing high volumes of narcotic painkillers for extended periods, prescribing potentially lethal doses or prescribing several different drugs.

Thus, nursing homes are encouraged by State regulators to ensure that residents are being properly treated for pain, while physicians are disincentivized to treat pain aggressively because of scrutiny by DEA regulators. This can be a particularly difficult situation for nursing homes, because as we all know, surveyors often try to send messages to attending physicians by citing nursing homes for deficiencies.

Apparently, the DEA, albeit reluctantly, recognizes that there should be some degree of balance achieved:

Last August, the D.E.A. publicly acknowledged the need for a "principle of balance" to address the necessity of access to pain medications and the approaches to containing abuse, addiction and diversion. It published "Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement Personnel," which thoughtfully explained the concepts, and offered clear descriptions of the circumstances under which the D.E.A. may prosecute a doctor. Mysteriously, however, in early October the agency pulled the document from the Web site, saying it had "misstatements."

I did say the recognition is reluctant because some are speculating that the above publication was pulled from the DEA website because of fear that defendant Doctors would use the document in court in defense of their treatment--as one Doctor is actually doing. If that speculation is true, we are seeing the ugly face of "gotcha style" regulation. Thank goodness for Google Caches. Here is the document. And, here is an article on the document by a writer who did not remove it from her site and is my source for linking it in this piece.

You may want to share the document with your Medical Director so that he can assist in educating and alleviating fears attending physicians may have about aggressively relieving the pain of residents.

Also, there has been progress made around the country on this issue. In 1998, theFederation of State Medical Boards, which represents American licensing boards, published "Model Guidelines for the Use of Controlled Substances for the Treatment of Pain" to assure physicians that appropriate prescribing of opiate painkillers would not lead to action against their licenses.

A copy of the Guidelines as updated in 2004 can be found here. As of January 2004, 22 state licensing boards had adopted these Guidelines. I can find nothing on the web confirming that Texas is one of those states, though we do have an Intractable Pain Statute.

Additionally, California has passed a bill called "The Medical Crimes: Investigations and Prosecutions." It requires that the state's district attorneys association collaborate with "interested parties" on protocols to investigate physicians.

Sally Satel, in the NYT article suggests that: Other states should follow suit. Better yet, they should require that prosecutors first obtain declarations from qualified medical experts as to the good faith of the physician in question before charges are filed. It would go a long way toward making pain medicine what it should be: a health care story, not a crime story.

I concur.

Written Statements for Incident Reports

2004-11-18T20:30:00.000-08:00

Lately, several people have asked me about the advisability of having employees write statements to accompany reports of incidents sent to DADS. It is my position that having your employees write such statements is neither advisable or required.

Thus, the next question is--how do you conduct your investigation if you don't have your employees write statements? My answer is that your investigator actually investigates. That means interrogating employees who are witnesses to an incident or who may have material information.

What you are seeking in an investigation is facts. If you allow employees to write their own statements--you are most likely to get emotion and conjecture. When an incident occurs, it is natural for your staff to feel guilt and fear about it. It is your investigator's job to cut through that and discover facts--not feelings.

The investigator (who should be a member of your Quality Assurance Committee acting as part of that committee) should sit down with each witness and ask pointed and specific questions about the incident, recording the relevant and material answers in detail. Use those answers to fill out the "investigation summary" section of the incident report form you must turn into DADS which is linked here.

I want you to look closely at this form. When it speaks of witness statements, it says attach them "if possible." Do not make it possible! Understand that under the Rules of Civil Discovery in Texas, such statements are discoverable by plaintiff's personal injury lawyers. Do you want to be party to a lawsuit that hinges on a statement written by a frightened nurse aide? Don't do it. Furthermore, if you instruct your staff to write their own statements, they are possibly writing documents that will later end up in the hands of law enforcement. That nurse or nurse aide may end up signing a piece of paper that--perhaps unfairly--puts them in jail for abuse or criminal neglect.

If you think that it is absolutely necessary to obtain employee statements--have your attorney assist you in drafting them based on the information given to the investigator by the employee. Consider this--when members of law enforcement obtain written statements from witnesses--they don't let the witnesses sit there and write their own statements. They interrogate--and from the results of their interrogation--they type up the factual parts and have the witnesses review the result for accuracy and sign it. If you absolutely think you have to have a statement and you don't feel that the situation warrants hiring an attorney--the investigator should draft the statements based on the interrogation and the facts.

Criminal Checks of Nursing Home Residents?

2004-11-17T08:00:00.000-08:00

On November 15, 2004, CBS news reported on an incident involving alleged resident-on- resident sexual abuse in a Florida nursing home. The resident-suspect, a man in his 80's, had been found wandering the streets by Florida law enforcement. A Florida court declared him a "vulnerable adult ... in need of protective services." Thus, the officials caused him to be admitted to the nursing home--where he allegedly sexually abused another resident.

Buried further down in the story, it is noted that Florida officials did not know of the resident's criminal background--and those officials emphasized that criminal background checks of residents is not required.

The story also talks about a nursing facility in Minnesota that was shut down as a result of the actions of geriatric prisoners transferred to those homes:

Minnesota's Atttorney General Mike Hatch just shut down one nursing home after sex offenders transferred from prisons were caught fondling, beating and sexually assaulting other residents.

"What the hell is going on here? How could you put sex offenders in with vulnerable adults?" says Hatch. "You put them in a locked ward with the women locked in?"

When you read this story, notice that the other side of the stories--those of the nursing homes--is not told. In the case of the Florida incident, that is because the family is suing the nursing home. CBS is, therefore, carrying water for the plaintiff's personal injury lawyer. Would it be too much for a competent journalist to ask why those in the best position to get criminal information--like the Court and law enforcement didn't do that before placing the man? Do you wonder what those official's reactions would have been had the facility requested such information before agreeing to admit?

As for the Minnesota situation--wouldn't a competent journalist interested in adhering to the Code of Ethics for Professional Journalists have seen fit to discuss exactly how those facilities got those prisoners and what information was given regarding the backgrounds of the prisoners? Doesn't the situation suggest to a reasonable person that the Minnesota Prison System had a problem dealing with geriatric prisoners and looked outside the system for help--and shouldn't that be discussed in the story? Naah...it's much more gratifying to blame nursing homes and attribute outcomes like this to reasons such as:

The answer may be money. When prisoners of all ages fill empty nursing home beds, Medicaid or Medicare pays the bill.

So, the next time a governmental entity or probate court seeks to do you a favor by providing you admissions--remember this story and take precautions to protect yourself and your facility. (like insisting on full information)

Reforming Adult Protective Services

2004-11-17T07:28:00.000-08:00

On November 15, 2004, HHSC released its report relating to reforming Adult Protective Services in accordance with Executive Order RP33. The report is linked here.

According to the press release:

The reform plan recommends adding an additional 63 caseworkers over the next biennium – for a total of 144 new caseworkers by fiscal year 2007. The additional caseworkers would represent a 32 percent increase in three years over the agency's current 446 caseworkers and would reduce caseloads to 28 per worker by fiscal year 2007.

With regard to investigations of providers for abuse and neglect--go to page 10 of the report to read the findings, proposals and measures already implemented. Appendix A outlines the investigative process and the accompanying checks and balances.

Please feel free to leave comments here regarding this report. This blog allows you to make comments anonymously should you feel so inclined.

The Flu And You!

2004-11-11T09:38:00.000-08:00

The flu season is upon us and many of you in long-term-care have been concerned about obtaining flu shots for your vulnerable populations. The Texas Department of State Health Services issued a news release on November 9, 2004 indicating:

The U.S. Centers for Disease Control and Prevention (CDC) today announced that the distribution of some 7.2 million doses of the nation's remaining supply of flu vaccine will be determined by the states' health departments.

--snip--

Texas Department of State Health Services (DSHS) officials expect that CDC will allocate some 500,000 to 600,000 of the 7.2 million doses for Texas. DSHS officials are working with local health departments in deciding where the vaccine will go.

The TDSHS indicates that the doses will be distributed to non-public health providers, including nursing homes, hospitals, physicians and others in the private sector. The Austin Business Journal reports that doses being distributed by the CDC will not be shipped directly to state health agencies--but rather will be sent by the manufacturer directly to providers approved by the state agencies.

For those of you in the community--(HCS and ICF-MR), I would check with the attending physician for each your consumers. The Houston Chronicle is reporting that--although dosages are beginning to trickle in--shot seekers are on their own as there is no clearinghouse. I've found nothing specific with regard to you as of yet. If anyone out there has such information--please post a link in Comments and I will update the post.

The Victoria Advocate is reporting that, although the vaccine is not being distributed to the health officials, the public health directors will be instrumental in deciding where the doses end up. In other words, the loca officials will send recommendations to the TDSHS as to where the doses will end up. As reported by the Victoria Advocate:

Dr. Bain Cate, director of the Victoria City/County Health Department, who also has responsibility for Calhoun, DeWitt, and Jackson county health departments, sent a recommendation Wednesday night to the Texas Department of State Health Services for these counties.

Cate recommended specific numbers of vaccine doses that could go to one private hospital and five nursing homes in Victoria and Jackson counties for their high-risk patients who missed out on earlier distributions.

"We're just acting as an ambassador or conduit by providing numbers to get the remaining supplies to private agencies that need them the most," Cate said.

Hopefully, the bureaucratic machinery will move fast. According to Bryan McCleod, a spokesman of the Harris County Hospital District as reported in the Houston Chronicle yesterday:

"Vaccines won't do any good if they stay in the vial," McLeod said. "The longer we wait, the closer we get to a flu outbreak."

In the meantime, ensure that your staff is carefully following universal precautions and that you have a plan in place in the event of a flu outbreak. An in-service on this issue would be extremely beneficial to improve the implementation of your plan. Also, make sure your staff is prepared to speak to surveyors on universal procedures in the event of an outbreak and a resultant investigation by DADS. You want to avoid situations like I described last March in Deficiencies of the Weird:

You Might Also Need to Learn to Levitate Physical Objects

In 2003, a facility in South Texas was cited for infection control. A few residents contracted the flu and the facility took precautions to prevent it from spreading. The facility was cited because nurses were putting blood pressure cuffs onto over-bed tables without setting them on a barrier to prevent contact with the actual table. (Even though the tables had nothing wet on them) The surveyors apparently forgot that blood pressure cuffs are actually put on and come into contact with residents who may be sick.

Heh!

JUDICIAL REVIEW FOR LEVEL OF NEED CASES

2004-11-08T17:20:00.000-08:00

In a recent article, Understanding the Anatomy of a Level of Need Appeal, I said that recourse beyond the administrative process was non-existent at worst and uncertain at best. We now have good news on that issue from the Texas Supreme Court.

In September, the Texas Supreme Court ruled on a case involving the question of whether or not a person who holds a child-care facility license may obtain judicial review of an administrative decision to revoke the license, Texas Department of Protective and Regulatory Services v. Mega Child Care, Inc. (Supreme Court of Texas, September 3, 2004) Although this is a different kind of case from the Level of Need case, I would argue that the holding applies to both.

TDMHMR long took that position that because the agency’s enabling statute did not specifically authorized judicial review in pursuant to the Administrative Procedures Act for level of need cases, no such right existed. The Texas Supreme Court ruled otherwise. The Court held that “Section 2001.171 provides an independent right to judicial review of a contested-case decision when the agency’s enabling statute neither specifically authorizes nor prohibits judicial review of the decision.”

It seems apparent that, because there is no statute prohibiting judicial review for LON cases, you have a right to appeal these cases to the District Court for judicial review. I consider this a major victory reaffirming and restoring due process rights for the beleaguered providers in the HCS and ICF-MR programs of Texas.