Ohio: Sex Offender Screening Now Required for Long Term Care Facilities

The required date for screening for sex offenders in Ohio nursing homes, licensed residential care facilities and county homes (“Homes”) has now arrived. As of September 15, 2014, these Homes are required to screen for sex offenders including checking the online Ohio sex offender registry prior to admission. Also, if a registered sex offender is admitted, a care plan must be developed to protect other residents and provide a safe envrionment. The Homes must notify the residents and their sponsors of the sex offender’s admssion and provide a descrption of the safety plan. The Ohio Department is mandated by House Bill 483 to implement regulations regarding to these new requirements but as of this date the regulations have yet to be promgulated. Even without published regulations, Homes are required to comply with the new statute. Watch for updates on the sex offender screening requirements as the Ohio Department of Health issues regulations. The sex offender registry link is located at: http://icrimewatch.net/inden.php?AgencyID-55149

One Of The Country’s Largest Hospital Organizations to Pay $98.15 Million Settlement on False Claims Act Allegations

On Monday, August 4, 2014, The Department of Justice announced that Community Health Systems (“CHS”), the nation’s largest operator of acute care hospitals, agreed to pay $98.15 million to settle nine whistleblower lawsuits alleging that the company violated the False Claims Act between January 2005 and December 2010. The whistleblowers alleged that CHS knowingly billed Medicare, Medicaid, and TRICARE for medically unnecessary inpatient admissions rather than the lower outpatient or observation rates at 119 hospitals. Additionally, allegations were made that services were rendered to patients at one of CHS’s hospitals in Laredo, Texas by a physician who was offered a medical directorship in violation of the physician self-referral law, known as the Stark Law.

Under the settlement, CHS entered into a five-year Corporate Integrity Agreement requiring it to retain independent review organizations to review the accuracy of the claims for inpatient services under federal health care programs, and to engage in significant compliance efforts over the next five years.

The allegations against CHS are particularly notable in light of new regulations such as the two-midnight rule, which took effect October 1, 2013. The two-midnight rule requires that physicians deem a patient’s condition as serious enough to require at least two overnight stays in order to qualify for Medicare reimbursement under inpatient rates. Patients who aren’t formally admitted may remain under outpatient or observation status. Emergency and internal medicine physicians often struggle to get the right designation and status for the patient. The federal government has delayed enforcement of the rule until March 31, 2015 at which time hospitals may face financial penalties if auditors determine the hospital could have met the patient’s needs in an outpatient setting.

For more information on the CHS settlement, the two-midnight rule, the Stark Law, the Anti-Kickback Statute, or related fraud and abuse issues, please feel free to contact Daniel Meier or any member of our health care practice group for a further discussion.

You can find a more extensive discussion about the CHS settlement, the impact of observation status on patients and the two-midnight rule in the following Client Bulletin.

Nursing Home Abuse and Neglect Compliance Trails Federal Requirements

The Department of Health and Human Services Officer of Inspector General (“OIG”) released a report this month titled, “Nursing Facilities’ Compliance with Federal Regulations for Reporting Allegations of Abuse and Neglect.” The report examines reporting practices for abuse and neglect in nursing facilities across the country. The OIG study found:

• 85% of nursing homes reported to the OIG at least one allegation of abuse or neglect in 2012;
• 76% of nursing homes maintained policies that address Federal regulations for reporting both allegations of abuse or neglect, and investigation results (95% of facilities maintained policies that address Federal regulations for reporting allegations of abuse or neglect only);
• 61% of nursing homes had documentation supporting the facilities’ compliance with Federal regulations under Section 1150B of the Social Security Act requiring (a) annual notification of covered individuals about their obligation to report any reasonable suspicion of a crime, and (b) the posting of a notice regarding employees’ rights to file a complaint; and
• 53% of allegations of abuse or neglect and the subsequent investigation results were reported as Federally required.

In light of these statistics, nursing homes should thoroughly review their abuse and neglect policies and practices. A robust and thoughtful abuse and neglect prevention program both protects nursing home residents and the facility. The following considerations may be helpful in reviewing a facility’s compliance with abuse and neglect requirements.

• Existing policies should be accessible, understandable, and implementable for all staff.
• Policies should be reviewed to ensure they are consistent with Federal regulations, especially regarding regulatory requirements for reporting investigation results.
• Staff (including owners, operators, employees, managers, agents, or contractors of nursing facilities) must be educated about their reporting obligations in the event of an allegation of abuse or neglect or when they reasonably suspect a crime has occurred in the facility under Section 1150B. Staff must also be notified about their right to file a complaint under Section 1150B of the Social Security Act.
• Remember to carefully document staff education about rights and responsibilities under Section 1150B.
• Verify policies regarding abuse and neglect are correctly and consistently implemented.

The full OIG report is available here: https://oig.hhs.gov/oei/reports/oei-07-13-00010.pdf.

4.5 Million Patients’ Information Stolen by Hackers

Community Health Systems Inc. (“CHS”), a Tennessee-based hospital provider, has reported it was the target of data hackers who were able to obtain identification information belonging to approximately 4.5 million CHS patients. According to some sources, this is the second-largest HIPAA breach ever. The company has been cooperating with Federal law enforcement authorities pursuing the individuals responsible for hacking into CHS’s system. In response to this breach, CHS is working to notify those individuals whose information was stolen and assisting them with identity theft protection as well as working with a security firm to thoroughly investigate the breach.

Healthcare providers that maintain or transmit electronic protected health (“ePHI”) information must not only be careful about how they use and disclose ePHI, they must also be wary of criminal attacks coming from outside their organization. Even simple identification information such as names, phone numbers, and social security numbers are protected by HIPAA. As part of ongoing HIPAA compliance, providers should assess and document the risk of breach of ePHI and the safeguards in place to prevent a breach. The more technical safeguards a provider has implemented for its ePHI (such as encryption, firewalls, and unauthorized or unusual access alerts), the less likely hackers will be able to infiltrate records and, in the event they infiltrate anyway, the easier for a provider to make a good case that it took all reasonable steps to safeguard its patients’ PHI, or at least to mitigate harm caused by a breach. Providers must consider all aspects of HIPAA, including both the Privacy Rule and the Security Rule, and make sure their HIPAA compliance programs are operational and complete.

MyCare Ohio Transition Continues

Ohio’s transition to Medicaid managed care continues. The Ohio Department of Medicaid, the contracting agency with the 5 managed care companies now providing services to Ohio’s dual eligible population is [providing more information to Ohio providers during this transition period. Those dual eligible (eligible individuals for both Medicare and Medicaid) are being transitioned into these managed care private sector insurance programs. Some providers have been experiencing technical difficulties in submitting claims under the new managed care systems and providers are frustrated with slow payments. An updated released by the Ohio Department of Medicaid provides some statistics by region on the number of submitted claims and percentages of paid claims within 30 days of submission. The information provides a link to the Provider Payment Technical Assistance program to work with providers on a case-by-case basis to assist in resolution of issues and to resolve payment concerns. The Ohio Department of Medicaid issuance that includes the Provider Payment Technical Assistance link can be found at http://healthtransformation.ohio.gov/LinkClick.aspx?fileticket=V9a0WTwYchs%3d&tabid=105

OIG Publishes Special Fraud Alert Regarding Laboratory Payments To Referring Physicians – Some Arrangements May Violate the Anti-Kickback Statute

The laboratory market has become quite competitive in recent years, raising compliance concerns and investigations into lab relationships with referring physicians. Accordingly, on June 25, 2014, the OIG released a Special Fraud Alert (the “Fraud Alert”) which provides guidance about two different types of suspect arrangements: (1) Blood-Specimen Collection; and (2) Registry Payments. The concerns raised here by the OIG involve referring physicians receiving payments from laboratories who may not even be aware that these arrangements are violating the Anti-Kickback Statute due to their complicated nature.

The OIG explained that it is concerned about arrangements in which a lab pays a physician more than fair market value (“FMV”) for the physician’s services or for services the lab does not actually need or for which the physician is compensated. The four major concerns typically associated with kickbacks involving labs include: (1) corruption of medical judgment; (2) overutilization; (3) increased costs to the Federal health care programs and beneficiaries; and (4) unfair competition. These concerns arise because arrangements with labs could induce physicians to order tests from a lab that provides them with payment, rather than utilizing laboratories that provide the best, most clinically appropriate service. Indeed, the choice of which laboratory to use and whether to even order lab tests are decided by or at least strongly influenced by the physician. Continue reading

New Ohio Sex Offender Requirements for Long Term Care Facilities

Nursing homes, residential care facilities and county homes (“Homes”) in Ohio will soon have additional requirements related to the admission of a registered sex offender. House Bill 483, the Mid-Biennium Budget Review bill was signed by Governor Kasich on June 16, 2014 with an effective date in September 15, 2014. Rules are required to be written by the Ohio Department of Health (“ODH”) in the future for further guidance. Requirements for the Homes include checking the Ohio sex offender registry before admission of a registered sex offender. Facilities can include questions about a registered sex offender status on their admission applications. The Homes must check the potential resident’s name in the required database to determine if the potential resident is an Ohio registered sex offender. If a registerd sex offender is admitted, a care plan must be devleoped to protect other residents and provide a safe environment free of abuse. Also, the Homes must notify residents and their sponsors of the sex offender’s admission and provide a description of the plan of care for safety. Sex offender registry link: http://www.icrimewatch.net/index.php?AgencyID=55149