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Nursing Home Medical Assistance Per Diem Payments To Be Denied If Resident's Attending Physician Not An MA Certified Provider

In a Medical Assistance (MA) Bulletin issued April 1, 2016, the Department of Human Services (DHS) stated that effective September 25, 2016, physicians and practitioners who order, refer or prescribe items or services for MA beneficiaries must themselves be enrolled in the MA Program. The Bulletin states that to "track" this requirement, DHS will look to the claim field for the "ordering or referring physician" and the NPI number associated with that physician. If that physician is not on file as an MA provider, then the claim will be denied.

Revisions to Nursing Facility Admission Agreement Due to Changes Under LTC Final Rule

The Long-Term Care Final Rule which revises the requirements of participation in the Medicare and Medicaid programs will become effective on November 28, 2016. As a result of the changes under the Final Rule, providers will need to review their nursing facility admission agreements to ensure that the provisions of the agreement are consistent with the regulatory requirements. In addition to reviewing and updating the admission agreement, providers will also need to review and update existing policies and procedures and/or develop new policies to reflect the changes under the Final Rule. READ MORE - Revisions to Nursing Facility Admission Agreement Due to Changes Under LTC Final Rule.docx

CMS Instructs Nursing Facilities To Protect Residents From Unauthorized Photographs and Video Recordings

On August 5, 2016, CMS released Survey-and-Cert-Letter-16-33.pdf. In that letter, CMS noted that unauthorized photographs or video recordings of residents could result in violations of resident privacy, and could, in certain circumstances, be construed as abuse. In addition to these compliance issues under the Requirements of Participation for Long Term Care Facilities, the unauthorized use and disclosure of such photographs and videos also can result in violations under the HIPAA Privacy Rule. CMS has instructed state survey agencies, such as the Pennsylvania Department of Health, to conduct a review of facility policies designed to prevent these unauthorized actions. Surveyors are expected to review policies during the next standard survey of each facility, and during subsequent surveys as warranted.

Government Continues To Focus On Therapy Issues In Nursing Homes

The provision of therapy services continues to be a focal point of government regulators. In its 2016 Work Plan, the OIG states that it will continue to review the provision of therapy in nursing homes, citing past findings of overutilization and fraudulent billing of such services. The OIG, in conjunction with the U.S. Department of Justice, has been active in prosecuting alleged therapy billing compliance issues, resulting in multi-million dollar settlements with nursing home providers, with several high-profile investigations still pending. RAC and ZPIC audits focusing on therapy services continue throughout the country. In September 2015, the OIG issued a report entitled "The Medicare Payment System For Skilled Nursing Facilities Needs To Be Reevaluated" which concluded that Medicare payments for therapy services greatly exceeded nursing facility costs, and that the current system encourages nursing homes to bill therapy services at the highest levels possible, in order to maximize reimbursement, without a corresponding demonstration of beneficiary need.

Court Issues Significant Medical Assistance Undue Hardship Waiver Decision

In Colonial Park Care Ctr. v. Dep't of Human Services, a decision published on September 21, 2015, the Commonwealth Court of Pennsylvania affirmed the decision of the Bureau of Hearings and Appeals (BHA) imposing a penalty on a nursing facility resident's eligibility for Medical Assistance (MA) benefits due to a transfer of assets for less than fair market value. While the ruling is somewhat predictable and represents a loss for the beneficiary, the decision appears to expand the traditional basis upon which a beneficiary can seek an undue hardship waiver from a penalty period.

Court Holds Responsible Party Provisions are Consistent with Nursing Home Reform Act

In the recent case of Eades v. Kennedy, PC Law Offices, the United States Court of Appeals for the Second Circuit found that provisions of an admission agreement that imposed certain financial obligations on the husband of a nursing home resident did not violate the Nursing Home Reform Act (NHRA), and that the NHRA does not preempt Pennsylvania's indigent support statute. In that case, the daughter and husband of a deceased nursing home resident filed suit against the law firm hired by the nursing home to collect resident's unpaid bill. As part of their claim, the plaintiffs claimed that the responsible party provisions of the admission agreement were unlawful under the NHRA. They further argued that the NHRA preempted Pennsylvania's indigent support statute.

Provider Right to Sue for Adequate Rates in Federal Court Severely Restricted

In Armstrong v. Exceptional Child Center, Inc., the United States Supreme Court found that providers do not have a private right of action under §30(A) of the Medicaid Act to require a state to increase Medicaid payment rates, significantly impacting the ability of providers to sue states in federal court to challenge Medicaid rates. Section 30(A) of the Medicaid Act, often referred to as the "Equal Access Provision," requires states to:

BHA Hearing Delays and Requesting Interim Assistance

Historically, the Bureau of Hearings and Appeals (BHA) has prioritized the scheduling and adjudication of Medical Assistance (MA) eligibility appeals over other types of appeals. Recently, however, beneficiaries and providers have experienced significant delays in the resolution of MA eligibility appeals. In some instances, the BHA is taking several months to schedule hearings on MA eligibility determinations. Generally, the BHA must take "final administrative action" within 90 days of the filing date of the appeal. "Final administrative action" means a decision by the hearing officer. If final administrative action is not taken within 90 days of the filing of the appeal, the Department of Human Services is required to authorize the payment of MA benefits to the provider on behalf of the resident pending the final administrative action. Interim assistance is not subject to restitution absent an affirmative misrepresentation by the beneficiary. In cases where the beneficiary is responsible for delaying the hearing process, the time limit for final administrative action is extended by the length of the delay.

Long-Term Care Arbitration Update

On July 10, 2014, the Pennsylvania Superior Court found in favor of a nursing facility in an arbitration case holding that a valid arbitration agreement existed between the nursing facility and the former resident who died at the facility. As a result, in the case of MacPherson v. Magee Memorial Hospital for Convalescence, the court invoked the liberal policy favoring arbitration agreements contained in the Federal Arbitration Act and state law, and remanded the negligence suit against the nursing facility to arbitration. The Superior Court distinguished this case from Pisano v. Extendicare Homes, Inc. in which it found that wrongful death and survival actions are separate rights of action deriving from an individual's death, not from the decedent's rights. In MacPherson, however, the court held that wrongful death rights belong only to the individuals named in the statute (i.e., parents, children, and spouses). In this case, the executor was the brother of the deceased resident, so he had no wrongful death rights. As a personal representative, he is bound by the arbitration agreement.

DPW Publishes Case Mix Rates for 2014-2015

On September 20, 2014, the Department of Public Welfare published a notice in the Pennsylvania Bulletin regarding final case mix rates for state fiscal year 2014-2015.  Nursing facilities have received letters detailing their rates for that fiscal year.  Most notably, the budget adjustment factor continues to limit the estimated statewide day-weighted average payment rate for county and nonpublic nursing facilities so that the average payment rate in effect for the fiscal year is limited to the amount appropriated by the state legislature for funding.  For the July, October, in January rates, the base budget adjustment factor is .84265.  At the minimum, providers should review their rate notice letters to determine the cost report years DPW is using to set the facility's case-mix rates.  If the provider has an audit appeal pending for one of its base years, then the best practice would be to file an appeal of the case-mix rate notice to preserve any issue regarding the add-back of costs to the base year and subsequent recalculation of the payment rate.  Providers have 33 days from the date of the letter to file a request for hearing with the Bureau of Hearings and Appeals.

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