Category Archives: Survey and Certification Letters

CMS Releases the Civil Money Penalty Analytic Tool

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.

Important Regulatory Update Issued for Medicare Certified Home Health Agencies

The Centers for Medicare and Medicaid Services (“CMS”), the Medicare oversight agency, issued a new Chapter to the State Operations Manual (“SOM”) governing the imposition of alternative sanctions for home health agencies (“HHA”). Chapter 10 of the SOM is a new chapter outlining the processes for implementing the imposition of civil money penalties, directed in-service training, directed plans of correction, suspension of payment and temporary management. These intermediate sanctions were authorized in a final rule issued in 2012. Continue reading

CMS Issues Updated Guidance on Fine Imposition and the Collection Process for Nursing Homes

On April 25, 2014, the Centers for Medicare and Medicaid Services (“CMS”) issued revision 113 to the State Operations Manual (“SOM”) governing skilled nursing and nursing facility survey and enforcement processes. Specifically, CMS updated the SOM Chapter 7 with an effective date of January 1, 2012 as the modifications were mandated by section 6111 of the Affordable Care Act of 2010. The major provisions related to guidance on the independent informal dispute resolution process; escrow of civil money penalty funds pending a formal appeal; a reduction of fifty percent (50%) for facilities that promptly correct self-reported non-compliance and guidance on the use of civil money penalty funds for the state agencies. As of today, the online CMS manual system does not include the updated guidance.

This guidance is available at http://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R113SOMA.pdf.

Hospitalizations High for Medicare Nursing Home Residents

The Office of the Inspector General (OIG) released a study on November 17, 2013 studying 2011 hospitalization statistics for Medicare nursing home residents. The report finds that one quarter of Medicare nursing home residents were hospitalized for at least one day in federal fiscal year 2011. The study also reports that Medicare costs for nursing home residents represent 11.4% of the Medicare Part A spending on all hospital admissions during that same year resulting in Medicare paying $126 billion for those stays. Interestingly, high hospitalization rates were not evenly distributed throughout the country and generally nursing homes with lower CMS quality ratings had higher hospitalization rates. OIG recommends to CMS the development of a quality measurement report hospitalization rates for residents in each nursing home and to publicly report such measures. You can find a copy of the study here —> SNF Hospitalization Study

CMS Issues Guidance on CPR in Nursing Facilities

The first Survey & Certification memo for nursing facilities was issued for Fiscal Year 2014 on October 1, 2013. S&C 14-01-NH requires nursing facilities to adopt a policy that implements basic life support measures such as basic CPR for residents in accordance with the individual resident’s advance directives. Some nursing facilities have previously adopted a policy that when a resident is found without vital signs and the resident was a full code, the facility called 911 and waited for a response from the emergency personnel. CMS has affirmatively stated that the facility implement CPR when cardiac arrest occurs for residents in accordance with their advance directives and merely waiting for emergency personnel to respond to the 911 call is inadequate. CPR certified staff must be available at all times to provide CPR when necessary. Facilities will be cited under F155 for violating a resident’s right to formulate an advance directive if the facility does not develop and successfully implement policies and procedures to assure that residents will be resuscitated in accordance with their individual advance directives.

You can find a copy of  the letter here —> S&C 14-01-NH

For more information on the Survey Letter or related issues, please feel free to contact Janet Feldkamp or any member of our health care practice group for a further discussion.

New CMS Guidance Encourages Facility Buyers to Accept Automatic Assignment of Medicare Provider Agreements

Earlier this month, the Centers for Medicare and Medicaid Services (“CMS”) released a policy memorandum announcing stricter Medicare certification practices for buyers of Medicare-participating providers opting to reject the automatic assignment of the seller’s Medicare provider contracts. When a purchaser is considering opting out of automatic assignment, it must carefully weigh the risk of reimbursement gaps with the benefit of reduced liability exposure.   Continue reading

CMS Provides Videos on Person-Centered Care

On September 14, 2012 CMS released S&C 12-44 NH  which provided information on CMS’ new series of training materials for nursing homes on person-centered care for residents with dementia.  The Hand in Hand training materials consist of an orientation guide and six one hour video modules for training of nursing assistants and other nursing caregivers.  These materials focus on prevention of abuse with the dementia population and person centered care for the residents with dementia and other memory disorders.  CMS will be mailing the training series free to all nursing homes this month.

The training materials can also be downloaded at – http://www.cms-handinhandtoolkit.info/Index.aspx

You can find a copy of S&C 12-44NH here —> CMS Letter