Top Five Compliance Topics for Independent Owners CAHF Independent Owners Symposium, May 1-2, 2012 Mark A. JohnsonMark E. Reagan 101 W. Broadway 575 Market.

Top Five Compliance Topics for Independent Owners

CAHF Independent Owners Symposium, May 1-2, 2012

Mark A. Johnson Mark E. Reagan

101 W. Broadway 575 Market St.

Suite 1200 Suite 2300

San Diego, CA 92101 San Francisco, CA 94105

(619) 744-7300 (415) 875-8500

[email protected] [email protected]

2

Hooper, Lundy & Bookman, Inc.©

OVERVIEW

1. Hospital Readmissions

2. Vendor and Referral Relationships – “Fair Market Value”

3. Excluded Individuals – OIG/GSA/CA

4. 3.2 NHPPD – Documentation

5. Informed Consent – verification for psychotherapeutic medication.

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Hospital Readmissions

Single biggest issue now and in the foreseeable future Enormous amounts of resources Payors see huge savings

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Reimbursement, compliance and business issues Relationships with: hospitals, physicians, health plans

and regulators

Federal programs implicated Hospital IPPS rule – readmission penalties beginning

October 1, 2012 CMS Dual-Eligibles demonstration project –

beginning as early as January 1, 2013

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Federal programs implicated Accountable Care Organizations/Shared Savings

Programs – beginning early to mid-2013 Bundling pilots

Intersection with State programs Coordinated Care Initiative – beginning as early as

January 1, 2013 Dual-Eligibles demonstration project – 1/1/2013

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California Readmission Goals Q4 2010 to Q1 2011 Readmissions Data

3,429,614 total Medicare FFS beneficiaries 403,880 (12%) were discharged 78,397 (19.4%) were readmitted within 30 days

California's Goal: Reduce overall readmission rate by 20 percent Prevent 15,000 avoidable readmissions

(Source: HSAG-California, the Medicare QIO for California)

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Financial ImpactAverage readmission costs $8,000-$13,000

xCalifornia prevents 15,000 readmissions

=$120 - $195 million saved

(Source: HSAG-California)

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Medicare FFS Readmission Data2010Q4-2011Q1 (Source: HSAG-California)

Setting Discharged

To

# of Discharges

# of discharges readmitted within 30

days

30-day Readmit

Rate

30-day readmit

rate (to same hospital)

30-day readmit

rate (to another

hospital)

Home 210,568 36,973 17.6% 72.6% 27.4%

Nursing Home 92,286 21,497 23.3% 73.7% 26.3%

Home Health 64,575 13,453 20.8% 77.4% 22.6%

Hospice 7,973 289 3.6% 64.7% 35.3%

Other 28,478 6,185 21.7% 58.4% 41.6%

All 403,880 78,397 19.4% 72.6% 27.4%

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Percentage of Medicare FFS Patients Readmitted within… (Source: HSAG-California)

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Common Drivers Lack of standard discharge processes Lack of engagement or activation of patients and families Patients call 911 or return to emergency departments instead

of accessing a different type of medical service Ineffective or unreliable sharing of relevant clinical

information Patients did not understand/did not correctly take medications

(Source: HSAG-California)

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Near term – October 1, 2012 Acute hospital impacts Adverse financial impacts Actual performance verses benchmarks

Acuity and demographics taken into account

Limited at first to heart failure, pneumonia and myocardial infarction

Limited to 30 days post-discharge

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Impact on referral patterns Facility history of readmissions Facility commitment to change Participation in readmission reduction programs (e.g.,

Interact II, COMS, etc.)

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Mid-Term impacts CCI/Dual-Eligibles demonstration ACOs and Bundling Pilots Similar impacts on referral patterns

Health plans, physician groups, acute hospitals

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Long term impacts Direct impact on SNFs

President’s budget AHCA policy

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Vendor and Referral Relationships

Health Care Fraud Focus Area: Anti-Kickback Statute Swaps Referrals Discounts

Current Enforcement Environment FCA Implications Company/Facility Strategies –

Compliance Programs/Training Marketing – Value Based Purchasing

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Federal Anti-Kickback Statute is a criminal statute that prohibits payments as inducement for referrals of patients for services paid for by Federal health care programs Key terms: criminal, payment or remuneration,

inducement, referral Both sides of transaction have liability

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Federal Anti-Kickback Statute – including addressing free goods and services, marketing arrangements, financial arrangements with physicians and other sources of referrals Prohibition against remuneration (in any form, whether

direct or indirect) made purposefully to induce or reward the referral or generation of Federal health care program business

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Federal Anti-Kickback Statute

Referral sources – physicians, other health care professionals, hospitals and hospital discharge planners, hospices, home health agencies and nursing facilities

SNFs refer to – physicians, hospices, DME, laboratories, pharmacies, hospitals, therapy companies, dentists, and nursing facilities

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Payment or Remuneration – any type of cash or in-kind benefit that can be assigned a monetary value Long-term credit arrangements Discounts Rebates Supplies, equipment, space Gift cards, lunches, meals?

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No “de minimis” exception Only exists for Stark Law Stark Law regulations – Nonmonetary compensation.

(1) Compensation from an entity in the form of items or services (not including cash or cash equivalents) that does not exceed an aggregate of $300 per calendar year, as adjusted for inflation

Not related to volume/value of referrals Not solicited by referral source

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False Claims Act Implications

PPACA or Health Care Reform amended the Anti-Kickback Statute to provide that any claim that “result[s] from” an AKS violation is now a false or fraudulent claim under the FCA Any AKS violation self-disclosure should result in an

overpayment evaluation 60-day rule

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Focus areas for OIG re: Anti-Kickback Statute Free goods and services Swapping Discounts Services contracts

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Federal Anti-Kickback

Free Goods and Services Dental Providers

Free check-ups for SNF employees Free replacement of dentures

Pharmacy Free consultant services

Hospice Nursing services for patients other than hospice

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Swapping Arrangements

Ambulance provider – SNF accepts a low price from ambulance provider on Part A transfers in exchange for referring the Part B transfers Ambulance bills SNF for Part A transfers - $200 Ambulance bills Medicare for Part B transfers - $400

OIG – “Arrangements prone to swapping problems are those with ambulance providers, clinical laboratories and DME suppliers”

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Discounts

Discount safe harbor – 42 C.F.R. § 1001.952(h) One of the most complex and most utilized For Cost-Reimbursed Buyers

Discount must be earned based on purchases of that same good or service bought within single fiscal year of the buyer

Buyer must claim the benefit of the discount within that fiscal year or the following year

Buyer must fully and accurately report the discount on the applicable cost report

Upon request, Buyer must disclose information from Seller regarding compliance

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Discounts

Discounts – A reduction in the amount a buyer is charged for an item or service based on an arms-length transaction 42 C.F.R. § 1001.952(h)(5) – Does not include:

Cash payments or cash equivalents (except rebates, as defined)

Supplying one good or service at a reduced charge to induce the purchase of a different good or service, unless both are reimbursed by a Federal program using same methodology and fully disclosed and reported

A reduction in price applicable to one payor but not to Medicare/Medicaid or other Federal programs

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Discounts

42 C.F.R. § 1001.952(h)(5) – Does not include: A routine reduction or waiver of any coinsurance or

deductible amount owed by a program beneficiary Warranties Services provided in accordance with a personal or

management services contract

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Vendor Strategies

Point person for negotiations Discussion of policies and procedures Form contracts developed by legal counsel Other reasons for selecting vendor – quality,

consistency, reputation, efficiency

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Services Contracts

Services contracts To minimize the risk of disguised kickbacks in physician and

non-physician services contracts, a facility should periodically review arrangement to ensure:

A legitimate need for services or supplies Services or supplies were actually provided and adequately

documented Fair market value compensation Arrangement not related in any manner to the volume of federal

healthcare program business

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Current Enforcement Environment

Multiple active investigations throughout California and nationwide Ambulance providers Physician relationships Referral companies SNF – Hospital relationships Hospices Home Health Agencies

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Compliance Program

OIG Compliance Guidance for Nursing Homes, issued March 2000, available at: http://oig.hhs.gov/authorities/docs/cpgnf.pdf

OIG Supplemental Compliance Guidance for Nursing Homes, issued Sept. 2008, available at: http://oig.hhs.gov/fraud/docs/complianceguidance/nhg_fr.pdf

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Compliance Program

Auditing Self-audit of elements of program, such as billing

and/or quality of care issues Effectiveness – When issues are identified through

auditing, does the compliance program address the issues?

Does the compliance committee meet to review? Employee training?

Updating of the program by compliance officer

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Compliance Program

Elements of Effective Compliance Program Implementing written policies, procedures and standards of

conduct Designating a compliance officer and compliance committee Conducting effective training and education Developing effective lines of communication Conducting internal monitoring and auditing Responding promptly to detected offenses and developing

corrective action

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Marketing Strategies

Think Value Based Purchasing New Metrics Best Practices Performance Based Information Technology Coordination of Care

Marketing activities to referral sources should be focused on these elements

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Excluded Individuals

Employee screening – including appropriate screening for excluded individuals

No Federal health care program payment may be made for items or services furnished by an excluded individual or entity

Screen all owners, directors, officers, employees, and contractors (temporary staffing)

Where to screen – OIG, GSA, Medi-Cal How often? Yearly, semi-annual, monthly? What do you do if you identify an excluded

individual?

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Where to check: OIG List of Excluded Individuals and Entities

http://exclusions.oig.hhs.gov/

GSA Excluded Parties List System https://www.epls.gov/ Multiple search options

DHCS/Medi-Cal Suspended and Ineligible Provider List

“Google” it

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How often? Yearly, semi-annual, monthly? No less than yearly. OIG would prefer semi-annual or more

often

Records – Maintain the records of background checks. What do you do if you identify an excluded

individual? Self-disclosure Is there an overpayment? Is there a penalty?

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3.2 NHPPD – Documentation

Environment Audits began in February 2011 Results started getting issued in February 2012 DPH has centralized the review in Sacramento Inconsistencies at the facility level Lack of training/experience/understanding by some

surveyors

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Audit The auditor will provide the facility with a list of 24

random dates from the prior 90 day period and ask for date-specific documentation:

Census and Nursing Hours Per Patient Day (CDPH 612) or alternative form

Payroll records, nursing payroll codes, time cards Nursing Staffing Assignment and Sign-In Sheet (CDPH 530)

or alternative form

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“PRM” Documentation Requirements Duty statements, job descriptions Registry invoices If applicable: records submitted to CMS, Medi-Cal, or

insurance companies for purposes of remibursement Contract with NATCEP vendor Facility Personnel Records in compliance with 9-10 of

AFL

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Audit All required documentation must be provided ONSITE Plan ahead for obtaining centralized payroll and other

documents Electronic payroll records for the dates under review

must also be printed and provided.

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For employees with nursing and non-nursing functions: Clearly document time spent performing nursing AND non-

nursing functions Utilize staffing assignment and sign-in sheet with prescribed

fields or CDPH form 530 CDPH 530 ONLY utilized to:

Document nursing services provided by nursing staff NOT captured in payroll records; and

Nursing serivces provided by nursing staff primarily engaged in duties other than nursing services

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Staffing Assignment Attestation Each nursing staff assignment and sign-in sheet must

be signed by the DON or designee and verify that: 1. All staffing assignments are reviewed and verified

as true and accurate; 2. All direct caregivers providing nursing services

during the patient day are recorded; and 3. All NHPPD are accounted for with an original

signature

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Meal periods deducted from total nursing hours for the timeframes identified on the “assignment sheet”

*Meal periods NOT identified will be deducted as follows: 30 minutes for every 6 hours worked 1 hour for every 10 hours worked *Unless documentation provided that services

provided in lieu of a meal break

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Meal periods For 10 hours or more of continuous time worked

where only 30 minutes of meal time was taken and 30 minutes of meal time was paid, facility must provide documentation that the employee opted to be paid in lieu of the second 30 minute meal break

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Census Attestation Statement Each 24 hour census must include an attestation signed

by the DON or designee verifying that: The patient census and nursing hours documentation has been

reviewed; and The information is true and correct.

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Informed Consent for Psychotherapeutic Drugs

Recently, there has been a focus on whether patients in SNFs who are receiving psychotherapeutic drugs actually give informed consent to the treatment.

Patients have a right to be free from psychotherapeutic drugs and physical restraints used for the purpose of patient discipline or staff convenience and to be free from psychotherapeutic drugs used as a chemical restraint. (Title 22, Section 72527(a).)

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Title 22, Section 72528 states that the information that is material to a patient’s decision concerning the administration of a psychotherapeutic drug (or physical restraint) shall include: The reason for the treatment and the nature and seriousness

of the patient’s illness. The nature of the procedures to be used in the proposed

treatment including their probable frequency and duration. The probable degree and duration (temporary or

permanent) of improvement or remission, expected with or without treatment.

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Title 22, Section 72528 (cont’d): The nature, degree, duration and probability of the side

effects and significant risks, commonly known by the health professions.

The reasonable alternative treatments and risks, and why the health professional is recommending this particular treatment.

That the patient has the right to accept or refuse the proposed treatment, and if he or she consents, has the right to revoke his or her consent for any reason at any time.

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Importantly, Title 22, Section 72528 requires that before initiating the administration of psychotherapeutic drugs (or physical restraint) facility staff shall verify that the patient’s health record contains documentation that the patient has given informed consent to the proposed treatment or procedure.

Title 22 also includes an exception for emergency treatment – where there is an unanticipated condition in which immediate action is necessary for preservation of life or the prevention of serious bodily harm to the patient or others.

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DPH All Facilities LetterJanuary 7, 2011

Changes to DPH Interpretation of Section 72528(c)

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DPH AFL January 7, 2011 – Informed Consent

Previously found that unchanged, pre-existing orders for psychotherapeutic drugs/physical restraints or prolonged use of certain devices did not require verification of informed consent in medical records

DPH now requires verification present in medical records in AFL 11-08

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DPH AFL January 7, 2011 – Informed Consent

DPH issues comprehensive Q&A in AFL 11-31 (April 12, 2011)

Significant Issues AFL 11-08 requirement of documenting verification of

informed consent No “delegation” of informed consent from M.D. to

facility staff permitted Phone informed consent acceptable Facility policies and procedures need to reflect how

verification to be obtained

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DPH All Facilities LetterJune 4, 2009

Informed Consent for Antipsychotic Medication

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DPH AFL June 4, 2009 – Informed Consent

The AFL discusses the provisions of current law regarding informed consent for prescribing antipsychotic medication pursuant to Health & Safety Code 1418.9.

The H&S Code section referenced above pertains to residents who have the capacity to offer consent.

If a resident does not have the capacity, then a designated family member may offer consent. A physician makes the determination on whether capacity exists.

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If the attending physician of a resident in a SNF prescribes, orders, or increases an order for an antipsychotic medication for the resident, the physician shall do the following: Obtain informed consent of the resident for

purposes of prescribing, ordering, or increasing an order for the medication;

Seek the consent of the resident to notify the resident’s interested family member, as designated in the medical record.

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If the resident consents to notifying the interested family member, the physician shall make reasonable attempts, either personally or through a designee, to notify that family member within 48 hours of the prescription, order, or increase of an order.

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Notification of an interested family member is not required if any of the following circumstances exist: There is no interested family member designated in the

medical record; The resident has been diagnosed as terminally ill by

his physician and is receiving hospice services from a licensed, certified hospice agency in the facility;

The resident has not consented to the notification.

Notification

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The AFL reiterates that the law does not require the attending physician to obtain consent from an interested family member in order to prescribe, order, or increase an order for antipsychotic medication.

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Questions?

Top Five Compliance Topics for Independent Owners

CAHF Independent Owners Symposium, May 1-2, 2012

Mark A. Johnson Mark E. Reagan

101 W. Broadway 575 Market St.

Suite 1200 Suite 2300

San Diego, CA 92101 San Francisco, CA 94105

(619) 744-7300 (415) 875-8500

[email protected] [email protected]

Top Five Compliance Topics for Independent Owners CAHF Independent Owners Symposium, May 1-2, 2012 Mark A. JohnsonMark E. Reagan 101 W. Broadway 575 Market.

Documents

lundy bookman

hsagcalifornia slide

hospital home

readmissions data

avoidable readmissions

hsagcalifornia setting

overall readmission

medications source