The Centers for Medicare and Medicaid Services (“CMS”) recently released the civil money penalty (“CMP”) analytic tool used by CMS Regional Offices (“RO”) to review, approve or modify the proposed fines for nursing facilities (“NF”) and skilled nursing facilities (“SNF”)(collectively “NF”) (Link). Regulatory guidance CMS S&C 15-16-NH was released on December 19, 2014 and includes a description and the components of the analytic tool used by CMS since April, 2013 to determine the adequacy of the proposed CMPs for survey violations for NFs. The RO is required to review and either approve or modify the proposed CMPs issued by each State Agency based upon NF Medicare and Medicaid certification citations. Providers have often wondered about the actual calculation method being utilized by CMS and this analytic tool lays out the interpretation factors being used by CMS when applying the factors in the required by 42 CFR 488.404 for consideration when imposing a CMP on a facility as result of a single survey or for multiple surveys in a survey cycle.
CMPs and other enforcement remedies are required to be imposed based upon the scope and severity of the regulatory citations either for health deficiencies or life safety code deficiencies. CMS indicates that the analytic tool does not replace professional judgment but it to be used as a guideline in the CMP calculation process. The guidance states that the tool is “provide logic, structure, and defined factors for mandatory consideration in the determination of CMPs.” The analytic tool distinguishes between the use of Per Instance penalty use and a Per Day penalty use. A Per Instance penalty is a single defined fine amount between $1,000 and $10,000 for the survey cycle. The analytic tool indicates that a Per Day penalty is to be used unless the specific requirements are met for the Per Day penalty. A Per Instance penalty is often less costly to a provider than a Per Day penalty and is typically preferred by providers due to the certainty of the actual amount being imposed.
Per Instance penalties can only be applied if:
1. The facility is not a special focus facility;
2. Findings are no more than a G level (actual harm, isolated) or an F level (no actual harm, widespread with substandard care) and the facility has a good compliance history for the past 3 standard surveys; and
3. Findings of past noncompliance are not cited at a G level or an F level substandard care.
In addressing the discretion and professional judgment to be used by the RO personnel the guidance provides for a 35% increase or decrease in the CMP amount without CMS Central Office approval. If the RO proposes to increase or decrease the CMP amount by more than 35%, Central Office must provide approval of those changes. The stated purpose of the utilization of the analytic tool is to provide a more consistent application of enforcement remedies. The guidance also states that a Per Day CMP is to begin on the first day of noncompliance which may or may not be during the on-site survey. Also, the Per Day CMP is to start on the first day of identified noncompliance even if that date is prior to the survey. However, the CMP start date cannot be prior to the date of the last standard survey. This guidance reaffirms the imposition of CMPs that are applied retrospectively with a possibility that CMPs may be imposed as far back as 15 months. A retrospective CMP imposition can be in the hundreds of thousands of dollars for providers for an immediate jeopardy citation and can result in significant ramifications for providers.
A few of the factors that change the proposed amount of CMPs and are calculated with the tool include:
1. Scope and severity of the citations;
2. Number of citations;
3. Repeated citations;
4. Facility culpability; and
5. Facility financial condition.
The guidance provides some examples related to application of criteria for facility culpability based upon Departmental Appeals Board (“DAB”) cases. Those examples include repeated failure to follow or clarify doctor’s treatment orders; repeated failure to notify doctor of significant changes; repeated failure to supervise resident with a known history of elopement; staff failure to report physical, verbal or sexual abuse and egregious dignity issues.
Providers should carefully review this recently issued S&C guidance to have a clear understanding of how the CMPs are calculated by CMS and what factors can affect the increase or decrease of those CMPs. Understanding the factors related to fines and sanctions imposed by CMS and the amount of discretion that is allowed in the imposition of fines are important in the operation of NFs on an ongoing basis.
Posted in Certification, CMS Transmittals, Long Term Care, Medicaid, Medicare, Nursing Facility, Nursing Home, Participation, Skilled Nursing Facility, Survey and Certification Letters
Tagged Centers for Medicare and Medicaid Services, Nursing Home, Skilled Nursing Facility
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
Posted in Adult Home, Ambulance, Ambulatory Surgery Centers, Assisted Living, Clinical Laboratory, Clinics, Diagnostic Testing, Durable Medical Equipment, Group Home, Health Care Providers, Home Health, Hospice, Hospital, Intermediate Care Facility, Long Term Care Hospital, Medicaid, Nursing Facility, Nursing Home, Occupational Therapy, Ohio, Participation, Pharmacy, Physicial Therapy, Physician Assistants, Physicians, Residential Care, Skilled Nursing Facility, States
On February 4, 2014, the Centers for Medicare and Medicaid Services (CMS) issued in the Federal Register a notice of temporary moratoria on enrollment of new home health agencies (HHA) and ambulance suppliers and providers in certain geographic locations across the U.S. The moratoria were effective on January 30, 2014. CMS also extended existing moratoria noticed on July 31, 2013. Continue reading
Posted in Ambulance, Certification, Community Based Care, Florida, Fraud and Abuse, General, Health & Human Services, Health Care, Health Care Providers, Home Health, Illinois, Medicaid, Medicare, Michigan, New Jersey, Participation, Post Acute Care, Program Integrity, Provider Enrollment - Medicaid, Provider Enrollment - Medicare, Regulation, States, Texas, Transportation
On October 30, 2013, the New York State Office of the Medicaid Inspector General (“OMIG”) issued a press release that New York recovered $211 million from the federal government out of an identified $496 million in Medicaid erroneous payments related to home care recipients who are dually eligible for both Medicare and Medicaid funds. On October 1, 2013, the New York State Department of Health’s Fiscal Group received the $211 million payment through the action of OMIG, which was the largest single monetary recovery in OMIG’s history.
These payments were recovered by New York State as part of a federal project, the Third-Party Liability Home Health Care Demonstration Project, which is reviewing home health care involving dual eligible recipients, and is being conducted in conjunction with the University of Massachusetts Medical School. Continue reading
Posted in DHHS, Health & Human Services, Health Care, Home Health, Long Term Care, Medicaid, Medicare, New York, Nursing Facility, Nursing Home, Participation, Participation, Payers, Reimbursement, Skilled Nursing Facility
Tagged Centers for Medicare and Medicaid Services, CMS, Home Health, Medicaid, Medicare, New York, Nursing Home, OMIG, Skilled Nursing Facility, SNF
On July 6, 2012, the US Department of Health and Human Services Office of the Inspector General’s (“OIG”) Office of Evaluation and Inspections issued a report (OEI-07-08-00151) entitled “Nursing Facility Assessments and Care Plans for Residents Receiving Atypical Antipsychotic Drugs.”
The new study analyzes nursing facility assessments and care plans for residents receiving atypical antipsychotic medications. The study utilized a random sample of records derived from a previous OIG study of elderly nursing facility residents with Medicare claims for atypical antipsychotic drugs between January and June 2007 . The study concluded that 99% of the records failed to meet the federal requirements for care plans and/or assessments.
Posted in Health & Human Services, Health Care, Health Care Providers, Long Term Care, Medicaid, Medicare, Nursing Facility, Nursing Home, OIG, Participation, Participation, Quality Improvement Organizations, Regulatory Compliance, Skilled Nursing Facility