Tag Archives: Conditions of Participation

Circuit Court Upholds Immediate Jeopardy for Failure to Notify of Significant Change in Patient’s Condition

The U.S. 6th Circuit Court recently upheld a DHHS Departmental Appeals Board decision that found a skilled nursing facility’s (“SNF”) deficiencies were at an “immediate jeopardy” level relating to a failure to notify a physician or family member of a significant change in a patient’s condition. See, Claiborne-Hughes Health Center v. Sebelius, 6th Cir. No 09-3239, 6/25/10.

The Claiborne-Hughes Health Center is a SNF in Franklin, TN. The decision was based upon surveyors findings that the facility failed to comply with 42 C.F.R. §483.10(b)(11). Section 483.10(b)(11) requires a facility to immediately consult with a resident’s physician and notify the resident’s family members or legal representation when there is a significant change in a resident’s physical, mental, or psychosocial status.

The failure to comply with the applicable regulation related to Claiborne-Hughes’ policy on recording patient fluid-intake. Surveys completed in August and September of 2006 revealed that the facility was not sufficiently monitoring patient fluid intake in accordance with its own policies.

A copy of the decision can be found at – http://caselaw.findlaw.com/us-6th-circuit/1529702.html

CMS to Share Terminated Provider and Supplier Information with States

In order to implement requirements in the the Patient Protection and Affordable Care Act of 2010 (“PPACA” or the “Health Reform Bill”), CMS is starting to share information with the states about providers who are terminated from participation in Medicare.  CMS is going to start sharing the information via e-mail while it works on developing an electronic database.

Section 6401(b)(2) of the PPACA requires CMS to establish a process to make available to State Medicaid and CHIP agencies certain information on Medicare providers and suppliers that are terminated from participation in the Medicare program or CHIP. Additionally, Section 6501 of the PPACA requires state Medicaid programs to terminate any Medicaid provider that has been terminated from Medicare.

See this recent CMS Program Integrity memorandum from the CMS Center for Program Integrity.

Health Reform Includes Face to Face Practitioner Encounters for HHAs and DME

The Patient Protection and Affordable Care Act of 2010, H.R. 3590 (the “Health Reform Bill”) includes statutory provisions requiring face to face practitioner encounter requirements for home health certifications and prior to the provision of orders for durable medical equipment.

In the home health context, Title VI, Subtitle E, Section §6407(a) of the Health Reform Bill amends 42 U.S.C. §1395f(a)(2)(c). The amendment adds a condition to the existing conditions for payment.  The new condition provides that prior to making a certification that a patient meets the criteria for Medicare-covered home health services,  the physician “must document that the physician himself or herself has had a face-to-face encounter with the [patient] within a reasonable timeframe as determined by the Secretary’’. At some point in the near future, CMS will likely publish regulations defining “reasonable timeframe”.

In the durable medical equipment context, Title VI, Subtitle E, Section §6407(b) of the Health Reform Bill amends 42 U.S.C. §1395m(a)(11)(B). The amendment adds a condition to the existing conditions for payment.  The new condition provides that prior to providing an order for durable medical equipment under the Medicare program, “a physician, a physician assistant, a nurse practitioner, or a clinical nurse specialist [must have] had a face-to-face encounter with the [patient] during the 6-month period preceding such written order, or other reasonable timeframe as determined by the Secretary.’’ To the extent that CMS wants to redefine the timeframe, it will likely publish regulations in the future.

Additionally, Title VI, Subtitle E, Section §6407(d) of the Health Reform Bill provides that the encounter requirements shall apply to similar home health certifications or orders for durable medical equipment in the Medicaid program.