Nowadays it may seem like everything in healthcare compliance revolves around COVID-19 and the pandemic. Of course, there is certainly an emphasis focused on COVID-19 compliance issues, but enforcement agencies such as the HHS OIG, have continued to train their focus on other sectors of our healthcare industry, too. One such sector includes long-term care and nursing homes. In fact, over the last few months, the OIG has added some brand new items to their Work Plan, focused specifically on these facilities’ issues. Let’s take a look at some of them.
Certain federal regulations exist to protect long term care beneficiaries from abuse, neglect, and theft. The regulations disqualify certain potential employees from being hired by these providers if the potential employees have a history of certain offenses. For this purpose, legislation was passed in 2010 that established The National Background Check Program. This program was designed to assist States in their development and improvement of systems for performing these federal and state background checks.
Previous work by the OIG has identified circumstances when not all States have complied with the National Background Check Program for long term care providers. With this in mind, the OIG has added to their Work Plan an item to review an organization’s compliance with background checks on employees of nursing homes. Specifically, the OIG plans to “determine whether Medicaid beneficiaries in nursing in selected States were adequately safeguarded from caregivers with a criminal history of abuse, neglect, exploitation, mistreatment of residents, or misappropriation of resident property, according to Federal requirements.”
Though not specially mentioned by the OIG when announcing this Work Plan item, it is also of interest that last year the U.S. Department of Justice announced the launch of their National Nursing Home Initiative, which coordinates and enhances civil and criminal efforts to pursue nursing homes that provide grossly substandard care to their residents.
The DOJ initiative is focusing on some of the worst nursing homes around the country and the Department already has initiated investigations into approximately thirty individual facilities in nine states as part of this effort.
Justice Department leadership stated, “all too often, we have found nursing home owners or operators who put profits over patients, leading to instances of gross abuse and neglect. This national initiative will bring to justice those owners and operators who have profited at the expense of their residents and help to ensure residents receive the care to which they are entitled.”
The DOJ considers several factors when trying to identify the most problematic nursing homes. Specifically, they look for operations that:
- Consistently fail to provide adequate nursing staff to care for their residents.
- Fail to adhere to basic protocols of hygiene and infection control.
- Fail to provide their residents with enough food to eat so that they become emaciated and weak.
- Withhold pain medication.
- Use physical or chemical restraints to restrain or otherwise sedate their residents.
Facility-initiated Discharge Requirements
In 1987, Congress passed legislation, the Nursing Home Reform Act, to protect residents from inappropriate transfers or discharges initiated by the facility. The reasoning was that evidence found many facility-initiated transfers or discharges of residents could be unsafe and result in traumatic experiences for the resident and his or her family.
But data from the National Ombudsman Reporting System shows that from 2011 through 2016, the Long-Term Care Ombudsman Program, established to advocate for older Americans by the Older Americans Act of 1965, cited complaints related to "discharge/eviction" more frequently than any other concern.
Various news outlets have highlighted the rise in evictions (for example, see the NBC news story). The OIG has ongoing work determining the extent to which State survey agencies, long term care ombudsman, and CMS address facility-initiated discharges. The OIG plans to complement this ongoing work, by examining the extent to which nursing homes meet CMS requirements for facility-initiated discharges.
Part D Payments During Covered Part A Stays
Medicare Part A’s prospective payments to skilled nursing facilities (SNFs) cover most services, including drugs and biologicals furnished by the facility for the care and treatment of beneficiaries. Consequently, Medicare Part D drug plans should not pay for prescription drugs related to post-hospital care because these drugs are already included in the consolidated payment for Part A SNF stays. The OIG plans to determine whether Medicare Part D paid for drugs that should have been paid under Part A stays.
These are some of the recent areas of focus for long-term care and nursing home providers in particular. As usual, we recommend nursing home compliance programs be proactive in their approach by assessing these same issues within the walls of their own organizations.
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