AHCA/NCAL Regulatory Update

Most States Plan Cuts in Programs for Elderly, Disabled: AARP Study

2011-01-24T07:11:00.001-08:00

A new AARP report documents how the recession continues to have negative impacts on state programs for older individuals and adults with physical disabilities even as demand for publicly funded services has grown. (See: http://www.aarp.org/health/health-care-reform/info-10-2010/health-panel-10201.html.) States have used many administrative tools to curtail expenditures, and resources—including staff—are stretched thin. According to the 50-state study, 31 states cut aging and disability services programs (non-Medicaid) in FY 2010, and 28 states were expecting to cut these programs in FY 2011.

Major revenue sources—personal income, corporate, and sales taxes—for 2011 are expected to be below pre-recession levels for most states, according to the report. States are also contending with increasing service demands, forcing many to impose new limits on non-Medicaid long-term services and supports (LTSS). The study found that states are “holding steady” with Medicaid LTSS because funding from the ARRA stimulus funds requires them to maintain eligibility. However, many states expect they will need to make additional cuts in LTSS when the funds phase down and expire in June 2011.

The report also found that many states are using the economic downturn as an opportunity to shift services from institutional to non-institutional settings. The Affordable Care Act provides states with new opportunities to expand home and community-based services, yet many states are reluctant to commit to these programs until further federal guidance is issued.

NCAL & AHCA Commend CMS for Proposing Earliest Possible Date To Implement Part D Co-pay Legislation

2011-01-18T08:40:00.000-08:00

The National Center for Assisted Living (NCAL) and the American Health Care Association (AHCA) last week formally commended the Centers for Medicare & Medicaid Services (CMS) for proposing to implement Sec. 3309 of the Affordable Care Act on Jan. 1, 2012. As noted in their letter to CMS Administrator Donald Berwick, M.D., CMS is proposing the earliest possible implementation date allowable under wording in the health reform statute. Sec. 3309 is the result of a five-year campaign by NCAL, AHCA, and other national organizations. (See: http://www.ahcancal.org/ncal/advocacy/Letters/LetterCMSonProposedPartDImplementation.pdf.)

The letter to Dr. Berwick was in response to a proposed rule published by CMS on Nov. 22, 2010. In the proposed rule, CMS estimates that Sec. 3309 will eliminate cost sharing under the Medicare Part D prescription drug program for an estimated 600,000 dual eligible beneficiaries receiving home and community-based (HCB) services (including those living in assisted living communities). Sec. 3309 will bring needed financial relief to this vulnerable group of very low-income seniors and people with disabilities and improve their medical care. It also will also create parity in Part D cost sharing requirements between dual eligible beneficiaries in institutional and HCB settings. For more information, contact NCAL Senior Policy Director Karl Polzer at kpolzer@ncal.org.

CMS Proposes Earliest Possible Date To Implement Medicare Part D Co-pay Legislation

2010-12-06T22:53:00.000-08:00

The Centers for Medicare & Medicaid Services (CMS) has proposed implementing legislation that will eliminate Medicare Part D cost sharing for dual eligible beneficiaries in assisted living and other home and community-based (HCB) settings on January 1, 2012 – the earliest possible date allowable under Sec. 3309 of the Affordable Care Act (ACA).

Over the past several years, NCAL has led of a coalition of almost 40 national organizations urging passage of the Part D co-pay legislation and has been urging CMS to implement Sec. 3309 as soon as possible. Under the original Part D law, dual eligibles (those covered by both Medicare and Medicaid) in institutional settings had no cost sharing while a similar population living in community-based settings, including assisted living communities, was required to make co-payments. Assisted living residents average 8-10 medications and those on Medicaid often have difficulty affording their Part D co-payments. Sec. 3309 will eliminate Part D cost sharing for dual eligibles in HCB settings covered under Medicaid waivers, a 1915(i) state plan amendment, or under a Medicaid managed care plan.

In proposed rules published in the Nov. 22 Federal Register, the agency states: “We believe it is important to provide this benefit at the earliest possible date, since it will provide assistance to an estimated 600,000 beneficiaries a year. In proposing an effective date, we considered the administrative impact on States, and we believe that even the earliest possible effective date will provide States with adequate time for implementation.” See http://edocket.access.gpo.gov/2010/pdf/2010-28774.pdf. NCAL will be submitting comments to CMS on the proposed rule supporting implementation of Sec. 3309 of the ACA on Jan. 1, 2012.

Proposed Changes to SNF/NF Conditions of Participation Regarding Hospice

2010-11-03T07:25:00.000-07:00

On October 22, CMS released a proposed rule entitled “Medicare and Medicaid Programs; Requirements for Long Term Care Facilities; Hospice Services” which can be found at http://edocket.access.gpo.gov/2010/pdf/2010-26395.pdf.
In the rule, CMS proposes that long term care (LTC) facilities (that is, SNFs and NFs) that choose to arrange for the provision of hospice care through an agreement with one or more Medicare-certified hospice providers would have in place a written agreement with the hospice that specifies the roles and responsibilities of each entity.

To have your comments included in AHCA’s comment document to CMS, please send them to Lyn Bentley at lbentley@acha.org by December 6.

Background

Under current regulations, a LTC facility may choose to have a written agreement with one or more hospice providers to provide hospice care to a Medicare eligible resident who wishes to elect the hospice benefit. However, if the facility chooses not to contract with a Medicare-certified hospice to provide hospice services for the resident who wishes to elect the benefit, the LTC facility is responsible for assisting the resident in transferring to a facility that will arrange
for the provision of such services, as requested by the resident.

CMS states in the proposed rule that “there is a lack of clear regulatory direction regarding the responsibilities of providers in caring for LTC facility residents who receive hospice care from a Medicare-certified hospice provider, which could result in duplicative or missing services.” CMS believes this problem would be remedied by a regulatory requirement for a written agreement between the hospice and the SNF/NF which would specify what services each provider will provide. Per CMS, beneficiary health and safety could be endangered by a lack of coordination between hospice and LTC providers.

CMS states that “the language in this proposed rule was crafted to mirror the hospice final rule [June 5, 2008 hospice final rule (73 FR 32088) “Medicare and Medicaid Program: Hospice Conditions of Participation”] as much as possible to ensure that both entities are held equally responsible for the written agreement.”

Provisions of the Proposed Rule

• As previously stated, CMS is proposing that LTC facilities may either arrange for the provision of hospice services through an agreement with one or more Medicare-certified hospice providers or not arrange for such services and assist a resident in transferring to a facility that will arrange for the provision of these services when the resident requests such a transfer.

• The proposed rule “…seeks to clarify the role of the LTC facility and the Medicare-certified hospice by requiring clear delineation [in the agreement] of each provider's responsibility for maintaining continuity of care.” The agreement requirements would apply even when the hospice and SNF/NF are under common ownership and/or control. The signatures of authorized representatives of the hospice and the LTC facility would be required.

• The LTC facility would be required to ensure that the hospice services meet professional standards and principles that would apply to individuals providing services in the facility, and the timeliness of the services. “Timeliness of services'' means that the facility “…would be required to ensure that, from the time the resident elected the hospice benefit until the services were terminated, the Medicare-certified hospice would provide hospice services meeting the resident's needs in a timely manner, without any delay in the provision of services for the resident.”

• Written agreements would need to define:

1) the services to be provided by hospice and the SNF/NF, respectively, in accordance with the care plans;

2) how the facility and hospice would communicate; and

3) conditions under which the facility would need to contact the hospice immediately (including significant changes in condition/status; clinical complications that would alter the care plan; need for transfer for any condition not related to the terminal condition; or resident death).

• Agreements would have to include the following provisions:

1) the hospice assumes responsibility for determining the appropriate course of hospice care, including changing the level of services, if necessary;

2) the facility provides 24-hour room and board and meets the resident's personal and nursing care needs in coordination with the hospice.

3) delineation of the hospice's responsibilities, including providing medical direction and management of the hospice care; nursing; counseling; social work; medical supplies, durable medical equipment and drugs necessary for the palliation of pain and symptoms associated with the terminal illness and related conditions; and all other hospice services necessary for care of the terminal illness and related conditions; as well as bereavement services to LTC facility staff.

4) requirement that facilities report all alleged violations involving mistreatment, neglect, or verbal, mental, sexual, and physical abuse, including injuries of unknown source, and misappropriation of patient property by hospice personnel, to the hospice administrator immediately when the facility becomes aware of the alleged violation.

5) facility designation of a member of the facility's interdisciplinary team to be responsible for working with hospice representatives to coordinate care provided. The rule outlines responsibilities of the interdisciplinary team

6) Each resident's written plan of care would include both the hospice plan of care and the services provided by the SNF/NF.

Specific Feedback to CMS

In addition to the specific provisions of the proposed rule, CMS requests feedback on the following two issues:

1) How LTC facilities can provide orientation for hospice staff who provide occasional coverage for a member of the identified hospice interdisciplinary group that is quick and efficient, but sufficient to protect residents who receive hospice care.

2) CMS efforts to mirror existing hospice requirements notwithstanding, some differences occur. For example, the proposed rule would require that the facility report all alleged violations by hospice personnel to the hospice administrator immediately when the facility becomes aware of the alleged violation. However, the hospice is required in the June 2008 hospice final rule to report these same violations within 24 hours of the hospice becoming aware of the alleged violation. CMS is requesting feedback on whether the differences between the requirements that are found in the proposed rule would create a barrier to forming agreements between LTC facilities or interfere in coordination of residents' care between LTC facilities and hospices.

To view the rule in its entirety, go to http://edocket.access.gpo.gov/2010/pdf/2010-26395.pdf. To have your comments included in AHCA’s comment document to CMS, please send them to Lyn Bentley at lbentley@acha.org by December 6.

New OSHA SST Inspection Directive

2010-11-01T05:30:00.000-07:00

The Occupational Health & Safety Administration (OSHA) has issued its 2010 site specific targeting (SST) directive. Inspection criteria include:
• The primary inspection criteria using the 2009 Data Collection Initiative will target healthcare facilities in SIC code 805 (which includes long term care) with a Days Away, Restricted or Transferred (DART) rate at or above 16.0, or a Days Away From Work, Injury and Illness (DAFWII) case rate at or above 13.0 (only one of these criteria must be met.) 300 of the highest rated DART and DAFWII facilities will be surveyed under SST-10.
• A secondary inspection list will be created for healthcare facilities reporting DART rates of 13.0 or greater but less than 16.0, or a DAFWII case rate of 11.0 or greater but less than 13.0.
• As in past years, surveys of nursing and personal care facilities will focus on ergonomic stressors; exposure to blood and other potentially infections materials, as well as tuberculosis; and slips, trips, and falls. When additional hazards come to the attention of the compliance officer, the scope of the inspection may be expanded to include those hazards.
• When conditions indicate that a General Duty Clause citation relating to ergonomics may be warranted, the Area Office will contact the Regional Ergonomics Coordinator.

To view the directive in its entirety, go to http://www.osha.gov/OshDoc/Directive_pdf/CPL_02_10-06.pdf.

Employers given one-year reprieve on reporting health plan costs

2010-10-27T08:48:00.000-07:00

The Internal Revenue Service (IRS) recently announced a one-year delay in implementing a requirement under the Affordable Care Act that employers report the aggregate cost of employee health coverage on a Form W-2. The IRS says it will not enforce the reporting requirement in 2011, when it was previously set to go into effect.

Many employers, particularly those with self-insured health plans, have expressed concerns that it will be difficult to comply with the new requirement. According to IRS Notice 2010-69: “The Treasury Department and the IRS have determined that this relief is appropriate to provide employers with additional time to make any necessary changes to their payroll systems or procedures in preparation for compliance with the reporting requirement.” The IRS notice can be found at:
http://www.irs.gov/pub/irs-drop/n-2010-69.pdf.

HHS Waivers Allow “Mini Med” Health Plans To Continue

2010-10-21T06:34:00.000-07:00

The Department of Health and Human Services (HHS) has established a process under which group health plans or insurers may apply for waivers from the new restrictions on health plan annual limits (and lifetime limits) established under recently enacted health reform legislation. For plan or policy years beginning on or after September 23, 2010, interim regulations require no dollar limits on certain “essential benefits” and health plan annual coverage limits of no less than $750,000 with the amount rising to $2 million two years thereafter.

The waivers in part are intended to allow “limited benefit” plans or “mini med” plans, which typically have annual limits far below levels that the new rules allow, to continue to be offered until 2014 when new insurance market rules and other major coverage expansion reforms come into place. These plans tend to have lower premiums. In sub-regulatory guidance, HHS’ Office of Consumer Information and Insurance Oversight states: “These group health plans and health insurance coverage often offer lower-cost coverage to part-time workers, seasonal workers, and volunteers who otherwise may not be able to afford coverage at all.” Long term care providers are among the types of employers that offer these mini med plans to employees. Waiver applications must include “a brief description of why compliance with the interim final regulations would result in a significant decrease in access to benefits for those currently covered by such plans or policies, or significant increase in premiums paid by those covered by such plans or policies, along with supporting documentation.”

More information about the waiver process, the regulations, and a list of approved waivers can be found at: http://www.hhs.gov/ociio/regulations/patient/index.html. A sample of a waiver application prepared by the law firm Greenberg Traurig, LLP, is available at: http://www.ahcancal.org/ncal/advocacy/Documents/OutlineSampleWaiverApplication.pdf.

HHS approves nearly 3,000 organizations for early retiree medical claims subsidies

2010-10-04T12:25:00.000-07:00

Nearly 3,000 employers and unions – including many state and local government bodies – have been approved to receive reimbursements for their early retirees’ medical claims beginning this fall, the U.S. Department of Health and Human Services (HHS) announced Oct. 4. Created by the Affordable Care Act as one of many transition mechanisms to the new health insurance exchanges in 2014, the Early Retiree Reinsurance Program provides $5 billion in financial assistance to employers and unions to help them maintain coverage for early retirees ages 55 and older who are not yet eligible for Medicare. Businesses and other employers and unions that are accepted into the program will receive reimbursement for medical claims of their early retirees and their spouses, surviving spouses, and dependents. Savings may be used to reduce employer or union health care costs, provide premium or out-of-pocket relief to workers, retirees, and their families, or both. The program ends on January 1, 2014, when, under the health reform law, the state-based health insurance exchanges will be up and running. Applications are still being accepted.

HHS has set up a website, www.ERRP.gov, where sponsors can begin submitting information to qualify early retirees, spouses, surviving spouses, and dependents for claims reimbursements. Starting in October, sponsors with approved applications who submit funding requests will begin to receive reimbursement for eligible claims.

Employers and unions interested in the Early Retiree Reinsurance Program should visit www.ERRP.gov or call 1-877-574-3777 or 877-574-ERRP. Employers and unions can find the application form and application instructions, as well as other relevant guidance and regulations from HHS, online.

More information about the Early Retiree Reinsurance Program, a full alphabetical list of participants, and an interactive map displaying participants by State is available online. Going forward, this list will be updated every Friday. To find this information, please visit:
http://www.healthcare.gov/news/factsheets/early_retiree_reinsurance_program.html.

Census Bureau detects first drop in number of Americans with health insurance in 23 Years

2010-09-16T12:25:00.001-07:00

The number of people with health insurance decreased from 255.1 million in 2008 to 253.6 million in 2009, the U.S. Census Bureau reported Sept. 16. This is the first year that the number of people with health insurance has decreased since 1987, when comparable health insurance data began being collected.

A significant shift from private to publically sponsored health insurance was also found. Between 2008 and 2009, the number of people covered by private health insurance decreased from 201.0 million to 194.5 million, while the number covered by government health insurance climbed from 87.4 million to 93.2 million. The number covered by employment-based health insurance declined from 176.3 million to 169.7 million. The number with Medicaid coverage increased from 42.6 million to 47.8 million. The data was gleaned from the Current Population Survey Annual Social and Economic Supplement.

According to the Census, comparable health insurance data were first collected in 1987. The percentage of people covered by private insurance (63.9 percent) is the lowest since that year, as is the percentage of people covered by employment-based insurance (55.8 percent). In contrast, the percentage of people covered by government health insurance programs (30.6 percent) is the highest since 1987, as is the percentage covered by Medicaid (15.7 percent).

In 2009, the uninsured rates decreased as household income increased: from 26.6 percent for those in households with annual incomes less than $25,000 to 9.1 percent in households with incomes of $75,000 or more.

While the poverty rate increased for people under age 65, it declined for people 65 and older (from 9.7 percent in 2008 to 8.9 percent in 2009), according to the Census.

For more information, see: http://www.census.gov/newsroom/releases/archives/income_wealth/cb10-144.html

AHCA/NCAL Seeks Comments on Proposed Changes to OSHA’s On-Site Consultation Program

2010-09-16T06:10:00.000-07:00

The Occupational Safety and Health Administration (OSHA) recently released a proposed rule to revise its regulations for the On-site Consultation Program, which provides well-trained professional safety and health personnel, at no cost and upon request of an employer, to conduct worksite visits to identify occupational hazards and provide advice on compliance with OSHA regulations and standards. Priority in providing on-site consultation visits is accorded to smaller employers in more hazardous industries.

Following the successful completion of an on-site consultation visit, employers may seek to participate in OSHA Consultation's SHARP (Safety and Health Achievement Recognition Program). The program recognizes employers who have demonstrated exemplary achievements in workplace safety and health by receiving a comprehensive safety and health consultation visit, correcting all workplace safety and health hazards, adopting and implementing effective safety and health management systems, and agreeing to request further consultative visits if major changes in
working conditions or processes occur that may introduce new hazards.

In this proposed rule, OSHA proposes revisions to these rules and procedures, including:

1)Proposal: Clarifying the ability of the Assistant Secretary to define sites which would receive inspections regardless of SHARP exemption status. Specifically, OSHA is proposing the addition of a fourth category, ``other critical inspections as determined by the Assistant Secretary,” to the list of permissible inspections for worksites which have otherwise been deleted or deferred from programmed inspection lists as a result of SHARP or Pre-SHARP participation.

Background/Rationale: Although worksites granted SHARP status and those working towards achieving SHARP status (Pre-SHARP) are currently either deleted or deferred from the programmed inspection lists, they are still eligible for non-programmed inspections in the following categories:
A. Imminent danger;
B. Fatality/Catastrophe; and
C. Formal Complaints

Per the proposed rule, at times, special circumstances may make it necessary to conduct an inspection or investigation at an establishment ordinarily exempt because of the employer's participation in the OSHA On-site Consultation Program. For this reason, OSHA is proposing addition of the fourth category, as stated above.

2)Proposal: Using the term “complaints” instead of “formal complaints” when describing the categories in which an employer with an in-progress consultation visit or SHARP visit may be subject to termination of the visit and the beginning of a subsequent enforcement inspection. During these situations, OSHA would not have to distinguish between formal complaints and complaints as rationale for interrupting the consultation/SHARP visit, regardless of the fact that these facilities are currently deferred or deleted from OSHA’s programmed inspection lists as a result of consultation activity.

3)Proposal: Allowing referrals to serve as a basis to initiate enforcement activity at worksites currently subject to deferrals or deletions from programmed inspections as a result of either an in progress consultation visit, or a worksite in pre-SHARP or SHARP status.

4)Proposal: Limiting the deletion period from OSHA’s programmed inspection schedule for those employers participating in the SHARP program.

Background/Rationale: Currently, employers have their names removed from the inspection schedule for a period of “not less than one year.” The rule proposes a limit change to “a period of one year” for these deletions. In addition, after the expiration of the one year inspection exemption, the name of the establishment may be deleted from the programmed inspection schedule for no more than one additional year.

5)Proposal: Clarifying terminology to use “deferral” and “deletion” when describing exemptions from programmed inspections. This is the same terminology used in the Site Specific Targeting (SST) and other OSHA enforcement guidance.

The proposed rule can be viewed in its entirety at http://edocket.access.gpo.gov/2010/pdf/2010-22058.pdf. Comments are due to OSHA on November 2, 2010, and the proposed rule provides directions on how to submit comments. To have your comments included in AHCA/NCAL’s comment document, please send them to Melissa Temkin at mtemkin@ahca.org by Friday, October 15.

New Report Highlights How Health Reform Impacts Long Term Care

2010-08-18T08:21:00.000-07:00

A report funded by the SCAN Foundation analyzes how the Affordable Care Act -- whose main purpose was to expand health insurance coverage -- has the potential to alter the course of long term care. In the latest issue of “Public Policy & Aging Report,” several analysts and representatives of national organizations take a closer look at provisions impacting long term care, particularly the Community Living Assistance Services and Supports (CLASS) Act. The CLASS provisions of the legislation establish a voluntary national insurance program providing a cash benefit that can be used for long term care services and supports, including care in assisted living and nursing home care. Under the Class Program, which will be implemented by the federal government over the next few years, individuals will pay monthly premiums and can become eligible for cash payments after a five-year vesting period if they reach certain disability levels.

Besides discussing the legislative history, implementation challenges, and opportunities presented by the Class Program, the authors also discuss many other aspects of the legislation including those that expand home and community-based services under Medicaid; provide support for the long term care workforce (including new opportunities for care providers to have health insurance coverage); provide incentives to better coordinate chronic care; and affect the quality of care in nursing homes.

The issue features articles by Lisa Shugarman, PhD, of The SCAN Foundation; Joshua Wiener, PhD, of RTI International; Walter Dawson of Oxford University; Barbara Manard, PhD, of the American Association of Homes and Services for the Aging; Anne Tumlinson, MMHS, of Avalere Health; Rhonda Richards of AARP; and Kathryn Roberts, PhD, of Ecumen. The report can be found at: http://www.thescanfoundation.org/commissioned-supported-work/public-policy-and-aging-report-themed-issue-implementing-class-act.

Money Follows the Person FY 2011 Grant Announcement Confirms Greater Inclusion of Assisted Living

2010-08-17T10:20:00.000-07:00

The federal government’s initial invitation to apply for Money Follow the Person (MFP) grants for FY 2011 includes language that broadens the types of assisted living communities that can qualify to participate under the program. Released by the Centers for Medicare & Medicaid Services (CMS) in late July, the MFP grant announcement includes revised guidance, released by the agency one year ago, on residential settings that can qualify under MFP grants.

AHCA/NCAL reported CMS’ issuance of revised policy guidance in August 2009 in Regulatory Update and included the revised policy guidance in NCAL's national report on Medicaid policy and payment for assisted living released in September 2009. NCAL and other assisted living advocates have been urging CMS to include assisted living to the greatest degree possible under the MFP statute – and under the Medicaid program in general.

In the initial announcement for apply for 2011 MFP grants, CMS states that, although separation of housing and services often allows for greater levels of self-direction for MFP participants, “some persons may prefer services and supports that are an integral component of their home in the community. Therefore, this Qualified Residence Guidance is intended to support a variety of living situations, including supportive housing arrangements.” CMS goes on to emphasize that all residences should “honor personal choice and control of the MFP participants’ home and afford opportunities for independence and community integration.”

Under the $1.75 billion MFP program, states may receive an enhanced Medicaid federal medical assistance percentage for 12 months for “qualified” home and community-based services for each person transitioned from an institution to the community. CMS’ initial announcement for 2011 MFP funding can be found at:
www.cms.gov/CommunityServices/Downloads/MFP2011SolicitationFinalJuly29RH.pdf.

Health Insurance Reform: Federal Agencies Issue “Grandfather” Rule for Health Plans

2010-06-18T08:08:00.000-07:00

The U.S. Department of Health and Human Services, Department of Labor, and Internal Revenue Service took further steps in implementing health care reform by issuing an interim final “grandfather” rule for health coverage already in place as of March 23, 2010. (See http://www.federalregister.gov/OFRUpload/OFRData/2010-14488_PI.pdf.) While the Patient Protection and Affordable Care Act (PPACA) establishes many new standards for health benefits, health plans that existed on March 23, 2010 are considered “grandfathered” -- or exempt from some of those new requirements – under certain conditions. The grandfather rule determines the extent to which existing health care plans can make changes, including premium and cost sharing increases and benefit reductions, and still maintain grandfather status. According to federal officials, plans will lose grandfather status if significant changes are made that reduce benefits or increase costs to consumers. Federal officials estimate that by 2013 more than half of existing plans will no longer be grandfathered. To obtain a fact sheet on the rule go to http://www.healthreform.gov/newsroom/keeping_the_health_plan_you_have.html. To read questions and answers on the regulation go to http://www.healthreform.gov/about/grandfathering.html.

According to the interim final regulations, a group health plan or health insurance coverage will no longer be considered grandfathered if the plan sponsor or insurance issuer:

• Eliminates all or substantially all benefits to diagnose or treat a particular condition;
• Increases a percentage cost-sharing requirement (such as coinsurance) above the level at which it was on March 23, 2010;
• Increases fixed-amount cost-sharing requirements other than copayments, such as a $500 deductible or a $2,500 out-of-pocket limit, by a total percentage measured from March 23, 2010 that is more than the sum of medical inflation and 15 percentage points;
• Increases copayments by an amount that exceeds the greater of: a total percentage measured from March 23, 2010 that is more than the sum of medical inflation plus 15 percentage points, or $5 increased by medical inflation measured from March 23, 2010;
• For a group health plan or group health insurance coverage, an employer or employee organization decreases its contribution rate by more than five percentage points below the contribution rate on March 23, 2010; or
• With respect to annual limits (1) a group health plan, or group or individual health insurance coverage, that, on March 23, 2010, did not impose an overall annual or lifetime limit on the dollar value of all benefits imposes an overall annual limit on the dollar value of benefits; (2) a group health plan, or group or individual health insurance coverage, that, on March 23, 2010, imposed an overall lifetime limit on the dollar value of all benefits but no overall annual limit on the dollar value of all benefits adopts an overall annual limit at a dollar value that is lower than the dollar value of the lifetime limit on March 23, 2010; or (3) a group health plan, or group or individual health insurance coverage, that, on March 23, 2010, imposed an overall annual limit on the dollar value of all benefits decreases the dollar value of the annual limit (regardless of whether the plan or health insurance coverage also imposes an overall lifetime limit on the dollar value of all benefits).

Union-Friendly Attorneys Named To NLRB

2010-05-20T13:20:00.000-07:00

President Obama has announced the recess appointments of two union-friendly lawyers, Craig Becker and Mark Pearce, to the National Labor Relations Board (NLRB). Read More

First Woman President Of SEIU

2010-05-20T13:18:00.000-07:00

The Service Employees International Union (SEIU) has selected Mary Kay Henry as the labor union’s first woman president. Read More

Academic Institutions Must Apply for GACA

2010-05-20T13:17:00.000-07:00

The Health Resources & Services Administration (HRSA) has recently updated its Geriatric Academic Career Award (GACA) application to reflect provisions in the Patient Protection and Affordable Care Act (PPACA); which now provides for institutional applications only. Read More

HHS Previews Insurance Reform Web Site Requirements

2010-05-20T13:14:00.000-07:00

The Department of Health & Human Services (HHS) has released an interim final rule in accordance with the Patient Protection and Affordable Care Act (PPACA), which requires the agency to establish an internet Web site no later than July 1, 2010; that individual and small businesses can obtain information about the insurance coverage options that may be available to them in their State. Read More

Hidden Cameras Lead to NF Employee Arrests in NY

2010-05-13T05:46:00.000-07:00

NY Attorney General (AG), Andrew Cuomo recently announced the arrest of twenty-two current and former healthcare workers at two NY nursing facilities after hidden surveillance cameras revealed alleged instances of abuse and neglect of its residents. Read More

AAHSA Releases Direct Care Worker Retention: Strategies for Success

2010-05-13T05:45:00.000-07:00

The American Association of Homes and Services for the Aging (AAHSA) has released a new report, Direct Care Worker Retention: Strategies for Success, which documents the research and programs shown to increase the retention of direct care workers in long term care. Read More

New OIG MFCU Section Highlights Importance

2010-05-13T05:44:00.000-07:00

The Office of Inspector General (OIG) has developed a new section to its website to show the important activities of the State Medicaid Fraud Control Units (MFCUs). Read More

IG Discusses Health Care Reform Legislation

2010-05-13T05:43:00.000-07:00

Daniel R. Levinson, HHS Inspector General (IG), spoke to 2000+ health care compliance officers at the Health Care Compliance Association (HCCA) Compliance Institute at the end of April, and instructed them to focus on transparency, quality and accountability, as they prepare to implement the Patient Protection and Affordable Care Act (PPACA). Read More

Coalition Launches Campaign for Better Care

2010-05-13T05:41:00.000-07:00

The National Partnership for Women & Families, Community Catalyst and the National Health Law Program, with funding from the Atlantic Philanthropies, has launched a multi-year initiative, Campaign for Better Care, that will focus on improving health care quality, coordination and communication for older patients with multiple health problems and their family caregivers. Read More

Study Finds LTC Insurance Enables Claimants to Live in Assisted Living Communities, Receive Care at Home

2010-03-30T06:56:00.000-07:00

A study tracking how people used long term care (LTC) insurance benefits found that a major impact of having LTC insurance is enabling claimants to exercise preferences for alternatives to nursing home care. Entitled “Private Long-term Care Insurance: Value to Claimants and Implications for Long-term Care Financing,” the study was recently published online by the Gerontological Society of America. (See: http://gerontologist.oxfordjournals.org/content/early/2010/03/18/geront.gnq021.)

Researchers took a random sample from 10 LTC insurance companies of 1,474 individuals receiving benefits who were interviewed in-person by a trained nurse and then by telephone every four months for a 28-month period. About 96 percent of those filing claims were approved for payment. At baseline, 37 percent received home care, 23 percent assisted living, 14 percent were in a nursing home, and 26 percent had not yet begun receiving care.

Researchers found that only 20 percent of those studied ever received nursing home care over the 28-month period. Also, “despite the oft-cited preferences of the elderly individuals to remain at home with paid services if required, LTCI claimants frequently chose assisted living rather than paid home care or nursing home care.” The study found that the most disabled claimants resided in nursing homes and the least disabled in assisted living settings. However, nursing home and assisted living residents studied had comparable levels of cognitive impairment (64 percent and 63 percent, respectively), significantly greater than paid home care users (28 percent). Based on 3,604 person-waves of data, nursing home residents had the highest average monthly cost ($5,561) and assisted living residents had the lowest average monthly cost ($2,653) while those who received care at home spent $3,601 on average. The overwhelming majority were satisfied with their service providers, including nursing home providers, although nursing home residents were less highly satisfied than assisted living residents or paid home care users.

OIG Recommendations Could Save Over $5 Billion

2010-03-22T06:33:00.000-07:00

The Office of Inspector General (OIG) has released its Compendium of Unimplemented Office of Inspector General Recommendations, which consolidates significant unimplemented monetary and nonmonetary recommendations to the U.S. Department of Health and Human Services (HHS), that have the potential to result in cost savings and improvements to program efficiency and effectiveness. According to the report, the Federal government could have saved more than $5 billion, and it specifically lists the following priorities regarding nursing facilities:
• Ensure the appropriate processing of denial of Medicare payment remedies for noncompliant nursing homes
• Ensure that Hospice claims for beneficiaries in nursing facilities comply with Medicare coverage requirements
• Improve the performance evaluation process for Program Safeguard Contractors (PSC)

EPA's Endangerment Finding - What It Means for You?

2010-03-22T06:30:00.000-07:00

In December 2009, the U.S. Environmental Protection Agency (EPA) concluded that, under Section 202(a) of the Clean Air Act (CAA), emissions of greenhouse gases from new motor vehicles contribute to global air pollution, which in turn endanger the U.S. public health and welfare. Although the stated purpose of this finding is to regulate motor vehicle greenhouse gas emissions, other provisions implementation of the “endangerment finding” has now extended to stationary sources – buildings. Accordingly, CAA, Prevention of Significant Deterioration (PSD) and Title V provisions are immediately effective for stationary sources. This means that any long term care provider who modifies or builds a new facility, and generates over 250 tons of CO2 (buildings approximately 51,000 square feet or larger), may have to comply with the new permit requirements. Modification is defined as any physical change or change in the method of operation that results in a significant emissions increase of green house gases. Modifications do not include routine maintenance, repair or replacement.
These permits are costly, averaging around $125,000, and time consuming, generally taking 6-12 months at a minimum to complete. Also, each permit can be challenged by citizen lawsuits. EPA recently proposed a rule to temporarily delay the application of the CAA’s permitting programs to small emitters but the rule rests on shaky legal ground, and does not permit permanent relief to emitters of any size. View talking points on the issue here. AHCA/NCAL has joined with the U.S. Chamber of Commerce in asking Congress to vacate the endangerment finding via the Congressional Review Act.

HRSA Expands the NPDB

2010-03-15T08:41:00.000-07:00

In January 2010, the Health Resources and Services Administration (HRSA) published a final rule expanding the National Practitioner Data Bank (NPDB) to include adverse licensure information on all licensed health care practitioners and health care entities. It also includes certain final actions taken by Private Accreditation Entities and Peer Review Organizations. The rule is effective on March 1, 2010. It is important to note that the role of the NPDB has not changed - the information is maintained to augment and/or verify other sources of information. Information in the NPDB should not be used as the sole source of verification of the professional credentials of a practitioner, provider, entity, or supplier. The accuracy, completeness, and timeliness of the information contained in the NPDB are dependent upon states and other reporters fulfilling their statutory duty to report.

NCAL Releases 2010 Edition of Assisted Living State Regulatory Review, Analysis of State Regulatory and Policy Changes

2010-03-03T14:04:00.000-08:00

NCAL released the 2010 edition of its Assisted Living State Regulatory Review. The report and accompanying analysis of state regulatory and policy trends can be found at the following link: http://www.ahcancal.org/ncal/resources/Pages/AssistedLivingRegulations.aspx.

Even though the troubled economy slowed down or stopped the development of assisted living regulations in a few states, 2009 from a national perspective witnessed a fairly heavy volume and variety of state assisted living regulatory and policy changes. At least 22 states reported making statutory, regulatory, or policy changes in 2009 and the first few weeks of 2010 impacting assisted living/residential care communities or assisted living Medicaid coverage. At least eight states made major statutory or regulatory changes or overhauled sections of their rules. Georgia, New Mexico, and Iowa created or added to protections for residents with Alzheimer’s disease or other dementias. Other states making or implementing major changes include Kansas, Maryland, Tennessee, Virginia, and Wisconsin.

At least 10 states made changes to fire safety, physical safety, or disaster/emergency preparedness standards. Nine states reported that they added disclosure requirements and at least eight states increased or changed required staff training. Other focal points of state assisted living policy development in 2009 include resident assessment/service plans, medication management, move-in/move-out requirements, staffing, background checks, reporting requirements, and resident rights. More states clarified that hospice services may be provided in assisted living settings. Kansas expanded a requirement for a licensed pharmacist to perform a medication regimen review upon any significant change in a resident’s condition as well as quarterly. Under revised regulations that took effect in January 2010, New Mexico changed its licensure term from “Adult Residential Care Facility” to “Assisted Living Facility.”

Nevada began enforcing regulations passed in 2005 requiring state regulators to award an alphabet grade to facilities based on their annual survey. Under this system, for facilities that earn an A grade, no further action is necessary. Facilities that earn a B can choose to be re-surveyed for a fee to earn an A grade. Facilities earning a C or D must be re-surveyed for a $500 fee to improve their grade.

Many states made changes to Medicaid programs covering assisted living services. While several states cut or changed how they calculate rates, a few engineered or planned modest coverage expansions. Oklahoma launched Medicaid waiver coverage for residents of Assisted Living Centers. Colorado revised regulations with the intent of making assisted living/alternative care facilities serving the Medicaid population look more home-like and offer residents more freedom and choices. At least two states increased disclosure requirements describing Medicaid coverage.

NCAL publishes this report annually as a service to its members, consumers, policymakers, researchers, and the media. For more information, contact NCAL Senior Policy Director Karl Polzer at kpolzer@ncal.org or 202-898-6320.

ANA Clarifies Nurse Scope of Practice With Regard to Pressure Ulcer Assessment and Documentation

2010-02-23T06:19:00.000-08:00

Some nurses have questioned whether the diagnosis of pressure ulcers is within an registered nurse’s scope of practice. Nurse have tried to get clarification on this issue from their State Boards of Nursing. However, state boards refrained from addressing the issue and providing a response. In an effort to get clarification as to whether nurses are practicing beyond their scope of practice when documenting an existing pressure ulcer in the patient’s medical record before the provider documents his/her assessment findings, the National Pressure Ulcer and Advisory Panel (NPUAP) approached the American Nurses Association (ANA) for their perspective. According to the ANA, scope and standards of nursing practice clearly identify and describe the nurse’s role – assessment, diagnosis, outcomes identification, planning, implementation and evaluation. Nurses are expected to engage in these activities that includes diagnosing and recording their assessments. The ANA concluded that the nurse would not be practicing outside of their scope of practice if the nurse identifies the altercation in the skin integrity as a pressure ulcer and stages it before the physician completes an assessment.

2010 Census Procedures Outlined For LTC Facilities

2010-02-23T06:17:00.000-08:00

AHCA/NCAL is working closely with the Census Bureau to make sure the 2010 process goes smoothly and to ease any burden on our members. AHCA/NCAL has created a comprehensive webpage to assist members through every aspect of the Census Process. We encourage all members to visit the webpage and take note of the highlights:

Validation Phase - completed October 23:

•Assisted living facilities, residential care facilities and ICFs/MR are classified as either housing units or group quarters, depending on the response from a representative of the facility
•Facilities self-identify using Form D-1028.4
•If an assisted living facility, residential care facility or ICF/MR was identified and classified as a “housing unit” then each resident in those settings will receive a 2010 Census questionnaire in the mail and will be asked to mail back the completed form

Advance Visit Phase – through March 19:

•Providers will meet with the Census Bureau worker to discuss, understand, and prepare for enumeration

Enumeration Phase – beginning April 1:

• “Administrative enumeration” can be used when counting group quarters
•If an individual in the facility is capable, they fill out the census form themselves
•If an individual is incapable, the enumerator completes the form using administrative records; not medical records
•No facility classified as a group quarters should feel compelled to use its own staff to complete the enumeration process
•If the facility chooses to self-enumerate, the Census Bureau will provide staff training
If you have any questions/concerns, please feel free to contact Dora Durante from the Census Bureau at 301-763-9371.

CMS Releases HIPAA Version 5010 Fact Sheets

2010-02-19T06:05:00.000-08:00

In February, CMS’ Medicare Learning Network (MLN) released two new Health Insurance Portability and Accountability Act (HIPAA) Version 5010 fact sheets, as well as two companion checklists, to assist providers in transition to 5010. Version 5010 is the new version of the X12 standards for HIPAA transactions; version D.0 is the new version of the National Council for Prescription Drug Program (NCPDP) standards for pharmacy and supplier transactions; and version 3.0 is a new NCPDP standard for Medicaid pharmacy subrogation. The implementation of HIPAA Version 5010 presents substantial changes in the content of data that providers submit with their claims, as well as the data available to them in response to their electronic inquiries for eligibility or claims status These new educational materials inform providers of these changes and how they need to plan for their implementation.

Report Focuses On Challenges To WIA Reauthorization

2010-02-19T06:02:00.000-08:00

The Center for American Progress Action Fund has released a report, Working for a Living, Learning for the Future: Updating the Workforce Investment Act to Create a Competitive 21st Century Labor Force, which concludes that working “learners” require flexible education programs, study courses yielding recognized educational credentials, career guidance and easy-to-use financial assistance in order to be successful. Further, Congress must focus on the unique needs of working learners as it considers the reauthorization of the Workforce Investment Act of 1998 (WIA) in the upcoming year. This will be a challenge since the WIA, at its best, was never intended to provide postsecondary credentials on a national scale; and at its worst, is underfunded and an overly complex set of programs that place too many unemployed workers in quick-fix low-paying jobs; fail to invest enough in training; and are not measuring whether funded training yielded useful credentials for employees.

Report Focuses on Health Care Workforce Policies

2010-02-19T05:59:00.000-08:00

The Center for American Progress Action Fund has released a report, Closing the Health Care Workforce Gap: Reforming Federal Health Care Workforce Policies to Meet the Needs of the 21st Century; which grapples with creating a national policy to assure an adequate health care workforce exists in the future. Assessing health workforce needs is difficult because there are many variables that determine its adequacy and no single entity in the U.S. is in charge of workforce planning. Variables that make workforce planning difficult to estimate include regional maldistribution of health professionals; overspecialization of physicians; and the current and expected demographics of the health care workforce and the population they serve. Few models are available to accurately predict what an adequate ration of health professionals should be to the populations served in a given area Still, several remedies are clear, including training a high-performing health workforce that enhances policy reforms directed at health insurance coverage, access to quality care, and control costs.

HHS/DOJ National Summit On Health Care Fraud

2010-02-19T05:40:00.000-08:00

In late January, the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Justice (DOJ) joined private sector leaders, law enforcement personnel and health care experts for a landmark National Summit on Health Care Fraud. The summit was the first national gathering on health care fraud between law enforcement and the private and public sectors; and is part of the Obama Administration’s coordinated effort to fight health care fraud. The National Summit featured discussions on innovative new ways to eliminate fraud and abuse in the U.S. health care system; and focused on key topics including:

· Use of technology to prevent and detect health care fraud and improper payments
· Role of states in preventing health care fraud
· Development of effective prevention policies and methods for insurers, providers and beneficiaries
· Effective law enforcement strategies
· Measuring health care fraud, assessing recoveries and determining resource needs

The National Summit is the latest initiative of HEAT, which was announced by HHS and DOJ in May 2009. The partnership between the two departments has focused its efforts to reduce and prevent Medicare and Medicaid fraud through enhanced cooperation. Expansion of the Medicare Fraud Strike Force operations is a key component of the HEAT taskforce. For more information on the National Summit, please click here.

Seeking Comments on OSHA Proposed Rule: New MSD Column on OSHA 300 Log

2010-02-18T06:23:00.000-08:00

AHCA is seeking comments on the January 29, 2010 Occupational Safety and Health Administration (OSHA) proposed rule “Occupational Injury and Illness Recording and Reporting Requirements.” To have your comments included in AHCA’s comment document to OSHA, please submit comments to Melissa Temkin by March 1. The proposed rule can be viewed in its entirety at http://edocket.access.gpo.gov/2010/pdf/2010-2010.pdf.

OSHA is proposing to revise its Recordkeeping regulation (29 CFR part 1904) to restore a column to the OSHA 300 Log that employers would use to record work-related musculoskeletal disorders (MSD.) The 2001 Recordkeeping final regulation included an MSD column, but the requirement was deleted before the regulation became effective because, at that time, OSHA thought the information would be of little statistical value because it would be general for all MSDs. After reconsideration, OSHA now believes that the data would allow the Bureau of Labor Statistics (BLS) to collect and annually report the total number and rate of MSDs, both nationally and in specific industries, not just the figures for cases that result in days away from work (as is currently reported.) In addition, the MSD column would provide valuable, industry specific information to assist OSHA in effectively targeting its inspection, outreach, guidance and enforcement efforts to address workplace MSDs; and will provide useful establishment-level information that will help both employers and employees readily identify the incidence of MSDs. It would also allow for baseline and post-intervention data for OSHA to effectively measure the success of guidelines to reduce MSDs, develop inspection programs, etc.

OSHA’s leadership has insisted that this rulemaking is totally separate from any ergonomics initiative and should not be interpreted as a first step to a new ergonomics rule.

The “Log of Work-Related Injuries and Illness” (OSHA 300 log) is used to classify work-related injuries and illnesses and to note the extent and severity of each case. The proposed rule would require employers to place a check mark in the MSD column of the OSHA 300 Log, instead of the column they currently mark, if a case is an MSD that meets the Recordkeeping regulation’s general recording requirement. The employer must record a case as an MSD if:

1) the employee experiences “pain, tingling, burning, numbness or any other subjective symptom of an MSD;”

2) the symptoms are work-related;

3) new; and

4) meet the general recording criteria in the Recordkeeping regulation (e.g., requiring restricted work, job transfer, days away from work, or medical treatment beyond first aid.)

As with any injury or illness, an MSD case would be recordable only if it meets all of these requirements.

Unlike OSHA standards, this proposed rule does not require employers to implement controls to prevent and control employee exposure to an identified occupational hazard, which in this case would be MSDs.

The proposed MSD definition is identical to the one in the 2001 final Recordkeeping rule: MSDs are “disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs” and do not include “disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents.” Examples of MSDs include “carpal tunnel syndrome, rotator cuff syndrome, De Quervain’s disease, trigger finger, tarsal tunnel syndrome, sciatics, epicondylitis, tendonitis, Raynaud’s phenomenon, carpet layers knee, herniated spinal disc and low back pain.”

OSHA also is proposing to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.

OSHA is concerned that employers are increasingly using restricted work, job transfers and medical treatment or surgeries without lost work time to bring employees back to work more quickly and to avoid recording MSDs as cases with days away from work. As the number of MSD cases being shifted from days away from work to restricted work has grown in the last decade, there will be fewer and fewer MSDs represented in BLS detailed statistics on cases with days away from work. The MSD column would ensure that serious MSDs are included in the BLS statistics, regardless of employer practices.

OSHA describes this proposed rule as a non-significant regulatory action involving only two small costs for employers. OSHA believes that:

1. employers – and specifically a human resources specialist – will be required to spend 5 minutes familiarizing themselves with the rule; and

2. employers will need to spend one additional minute than they currently spend in analyzing an injury or illness to determine whether it should be classified as an “MSD” and put into the correct column on the new recordkeeping forms.

The proposed rule can be viewed in its entirety at http://edocket.access.gpo.gov/2010/pdf/2010-2010.pdf. As previously stated, to have your comments included in AHCA’s comment document to OSHA, please submit comments to Melissa Temkin at mtemkin@ahca.org by March 1.

GAO releases report on Understatement of Care Problems

2010-01-29T12:48:00.000-08:00

In December 2009, GAO produced a report entitled Nursing Homes: Addressing the Factors Underlying Understatement of Serious Care Problems Requires Sustained CMS and State Committments. This is a follow-up to a report GAO completed in 2008 that identified states in which nursing home surveys failed to cite serious deficiencies or cited deficiencies at too low a scope and severity level.

Report Conclusions Understatement arises from weaknesses in several interrleated areas, including CMS's survey process, surveyor workforce and training, supervisory review processes and state agency practices and external pressure. Some of the actions GAO recommends that be taken by the Administraot of CMS are:

1) Make sure action is taken to address concerns identified with the new QIS methodology, such as ensuring that it accurately identifies potential quality problems;

2) Clarify and revise existing CMS written guidance to make it more concise, simplify its application in the field, and reduce confusion paritcularly on the definition of actual harm; and

3) Consider establishing a pool of additional national survyoers to assist state survey teams.

AHCA has prepared a four-page summary of the report.

ANA Clarifies Nurse Scope of Practice With Regard to Pressure Ulcer Assessment and Documentation

2010-01-21T09:53:00.001-08:00

What Does the Recent DEA Interpretation of the Controlled Substances Act Mean to You.

2010-01-21T09:51:00.000-08:00

Under federal and state rules governing quality of care for patients in nursing homes, nursing facilities are required to provide patients with appropriate routine and emergency pharmaceutical care based upon the prescriber’s order without delay. However, the Drug Enforcement Administration’s (DEA) interpretation of the Control Substances Act (CSA) rules and DEA policies require that physicians, nurses and pharmacists take extra steps and produce documentation beyond what is required when a non-controlled drug is prescribed. Generally, these additional steps must be completed before a drug is dispensed and administered to the patient. For example, to meet emergency needs, long-term care pharmacies provide nursing facilities with a limited supply of selected medications such as antibiotics and certain controlled drugs such as those used to treat pain, anxiety or seizures. These drugs are stored in a locked container or cabinet, often referred to as an “e-box or e-kit” In an emergency situation where the patient has an immediate need for a drug, the nurse will obtain an oral order from the prescriber, usually via telephone, secure the drug from the e-kit and administer it to the resident. However, under DEA rules, if the physician has given the nurse an oral order for a controlled substance, the nurse is not permitted to remove the drug from the “e-kit” until the doctor has either called or faxed a prescription order to the pharmacy, and the nurse has called the pharmacy to confirm that the pharmacy has received the doctor’s order. These additional steps can significantly delay and even deny patients needed treatment, leaving sick and dying patients without adequate symptom relief to treat pain, seizures, psychiatric conditions, and end-of-life symptoms, among others. Some reports received by the Quality Coalition for Patients in Pain (QCCPP) indicate that patients have been left suffering for hours and even days as their caregivers struggle to comply with these and other DEA requirements. The QCCPP, a coalition of long term care organizations and providers, is working with federal legislators and the staff from the Senate Special Committee on Aging to resolve this issue. Until a resolution can be obtained, AHCA is asking providers to report incidents where patients, families, providers have been negatively impacted by changes in medication process that have been established to meet DEA rules. Please report any incidents to http://www.ascp.com/advocacy/qccpp/reportform.cfm to submit your incident report online.

CMS Sets-Up Training for MDS 3.0

2010-01-21T09:50:00.001-08:00

CMS is in the process of scheduling Train-the-Trainer Conferences for MDS 3.0. Participation in the conference is by invitation only. CMS has offered AHCA 53 conference registration slots to ensure one member representative from each state and US territories (DC, Puerto Rico and Virgin Islands). The current conference schedule is:

March 15-19: The first session which is required for state RAI Coordinators, state long term care Surveyor preceptor/trainer and is optional for State Medicaid Agency (Case Mix) representatives.

April 13-16: The second session which will take place at the Radisson Plaza, Lord Baltimore Hotel is scheduled for key provider stakeholders and will include identifying changes in the RAI/MDS 3.0, conducting a RAI/MDS 3.0 assessment, coding the MDS accurately and correctly, and identifying the impact of implementation.

April 16: In addition to provider stakeholders, this session will be required for Money Follows the Person (MFP) Grant Project Directors and Aging and Disability Resource Center (ADRC) Grant Project Directors. This session is optional for representatives from State Center for Independent Living (CIL) and State Medicaid Agency (manager of the LTC system). The session will focus on increasing knowledge of MDS 3, Section Q – Return to the Community and understanding the challenges and issues involved with implementation of Section Q.

After the CMS registration by key stakeholders has been completed, they plan to hold an Open Registration, on a first come/first serve basis for any remaining open seats. It will be announced on the Open Door Forum website at http://www.cms.hhs.gov/OpenDoorForums and on the MDS 3.0 website at http://www.cms.hhs.gov/NursingHomeQualitylnits/25_NHQIMDS3.0.asp#TopOfPage.
CMS anticipates Open Registration by 2/22/10.

In addition to the Train-the-Trainer program for stakeholders, AHCA asked CMS to hold a national satellite broadcast to accommodate all providers, state survey personnel and other interested parties. AHCA will keep you informed about this development.

Upcoming Approval Process Outlined as NFPA Committee Approves NCAL Proposals To Update Life Safety Code

2010-01-11T06:47:00.000-08:00

All of NCAL's proposals to update standards for existing assisted living buildings for the 2012 edition of the National Fire Protection Association (NFPA) Life Safety Code were approved by written ballot by the NFPA Technical Committee on Board and Care Facilities. The next step in the approval process is that the NFPA will publish a Report on Proposals showing all the proposals made and the committee’s action on each proposal. At this point, AHCA/NCAL life safety consultant Thomas Jaeger is not anticipating any significant public comments on the committee’s actions concerning NCAL’s proposals. The upcoming approval process is as follows:

· The Report on Proposals will be posted June 12, 2010.
· The public comment period closes Sept. 3, 2010.
· The committee will meet to act on comments Oct. 18 or 19, 2010.
· A Report on Comments (ROC) will posted Feb. 25, 2011.
· The membership will vote on the ROC in June 2011 at NFPA annual meeting in Boston.

Jaeger submitted the proposed changes in 2009 on NCAL’s behalf in response to growing concern among fire safety officials and other experts that greater numbers of assisted living residents now cannot evacuate without assistance, given the growth of dementia units and higher disability levels in some communities as residents age in place. While ensuring a high level of safety for residents, the proposed changes would reduce the monetary impact on an existing facility whose evacuation capability classification goes from slow to impractical. The changes would affect existing, large (more than 16 residents) facilities and impact states and local government entities that reference the Life Safety Code in their licensure requirements or base their fire safety requirements on the Life Safety Code. A description of the proposed changes can be found at: http://www.ahcancal.org/advocacy/Letters/ProposedChangesNFPALifeSafetyCode.pdf.

NCAL is also developing proposals for new construction to submit to the International Code Council committee updating the International Building Code. One of NCAL’s major objectives is to bring the two major sets of life safety standards applying to assisted living – the Life Safety Code and International Building Code – into harmony with one another.

OSHA Summary of 2009 Job-Related Injuries and Illnesses Must be Posted February 1- April 30, 2010

2010-01-04T13:48:00.000-08:00

Beginning February 1, 2010, employers are required to post a summary of the total number of job-related injuries and illnesses that occurred last year. The Occupational Safety and Health Administration (OSHA) requires that the summary, OSHA Form 300A, remains posted from February 1 through April 30, 2010.

OSHA Form 300A must be displayed in a common area wherever notices to employees are usually posted. Employers must make a copy of the summary available to employees who move from worksite to worksite and employees who do not report to any fixed establishment on a regular basis. The summary must list the total numbers of job-related injuries and illnesses that occurred in 2009 and were logged on the OSHA 300 form. Employment information about annual average number of employees and total hours worked during the calendar year also is required to assist in calculating incidence rates.

Companies with no recordable injuries or illnesses in 2009 must post the form with zeros on the total line. A company executive must certify that the summary is accurate. Employers with ten or fewer employees are exempt from federal OSHA injury and illness recordkeeping and posting requirements.

Copies of the OSHA Forms 300 and 300A are available on OSHA’s Web site at http://www.osha.gov/recordkeeping/RKforms.html in either Adobe PDF or Microsoft Excel Spreadsheet format. Please note: the recordkeeping guide that accompanies the form indicates that it is for use with injuries in 2004. The process, forms, and requirements are still the same for 2010.

NPUAP and EPUAP Release Pressure Ulcer Guidelines

2009-12-15T12:55:00.000-08:00

The New International Guideline: Prevention and Treatment of Pressure Ulcers developed by the American National Pressure Ulcer Advisory Panel (NPUAP) and the European Pressure Ulcer Advisory Panel (EPUAP) have now been released. It is important to note that CMS has not made any comments or recommendations in regards to these guidelines and long-term care providers should continue to follow and comply with the guidance contained within F314.

The NPUAP and EPUAP have positioned this body of work as a guideline and the recommendations within the guideline are intended for educational and informational purposes only. This is a profound statement, as the guideline is not meant to be standards of practice, which has legal implications. The Prevention section covers recommendations on etiology, risk assessment, skin assessment, nutrition, repositioning, support surfaces and special populations. The Treatment section covers recommendations for pressure ulcer classification, assessment and monitoring of healing, role of nutrition, pain assessment and management, support surfaces, wound bed preparation, assessment and treatment of infection, biophysical agents, surgery and palliative care.

To order a copy of the guidelines, click here or go to www.npuap.org. Questions? Contact Melissa Temkin.

NFPA Committee Approves Life Safety Code Changes Proposed by NCAL

2009-12-14T14:49:00.000-08:00

The National Fire Protection Association (NFPA) committee considering revisions to the NFPA’s Life Safety Code (2012 edition) has accepted all 18 the proposed changes to standards for existing assisted living buildings that NCAL submitted in July. AHCA/NCAL life safety consultant Thomas Jaeger submitted the proposed changes in response to growing concern among fire safety officials and other experts that greater numbers of assisted living residents now cannot evacuate without assistance, given the growth of dementia units and higher disability levels in some communities as residents age in place.

While ensuring a high level of safety for residents, the proposed changes would reduce the monetary impact on an existing facility whose evacuation capability classification goes from slow to impractical. The changes would affect existing, large (more than 16 residents) facilities and impact states and local government entities that reference the Life Safety Code in their licensure requirements or base their fire safety requirements on the Life Safety Code. A description of the proposed changes can be found at: http://www.ahcancal.org/advocacy/Letters/ProposedChangesNFPALifeSafetyCode.pdf.

NCAL is also developing proposals for new construction to submit to the International Code Council committee updating the International Building Code. One of NCAL’s major objectives is to bring the two major sets of life safety standards applying to assisted living – the Life Safety Code and International Building Code – into harmony with one another.

HHS Releases Semiannual Regulatory Agenda

2009-12-11T06:06:00.000-08:00

The U.S. Department of Health and Human Services (HHS) has released its Semiannual Regulatory Agenda, outlining the inventory of rulemaking actions under development at the agency. Under CMS key actions listed by the agency, issues important to long term care providers include:
· Revisions to the Medicare Advantage and Medicare Prescription Drug Benefit Programs
· Electronic Claims Attachments Standards
· Home and Community-Based Services (HCBS) State Plan Option
· Requirements for long term care facilities-Hospice Services
· State Flexibility for Medicaid Benefit Packages
· Changes to the LTC Prospective Payment System
· Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities (SNF) Update

OIG Releases Semiannual Report to Congress

2009-12-11T06:04:00.000-08:00

The HHS, Office of Inspector General (OIG) has released its Semiannual Report to Congress: April 1, 2009-September 30, 2009, summarizing the significant audit, investigation and evaluation accomplishments in the second half of FY 2009; it’s reporting savings and expected recoveries of $20.97 billion. According to the OIG, it continues its mandated work pursuant to the American Recovery and Reinvestment Act of 2009 and its work with its “law enforcement partners to pursue bad actors who bilk scare resources from the Medicare and Medicaid programs.” Relying on its Office of Investigations, which spearheaded Medicare Fraud Strike Forces in conjunction with the U.S. Department of Justice (DOJ), the OIG has targeted many broad-based fraud schemes, resulting in nearly 200 convictions and millions of dollars in restitution. Further, building on the success of the Strike Force model, OIG is working closely with the DOJ on a new initiative announced last May, the Health Care Fraud Prevention and Enforcement Action Team (HEAT).

President Obama Signs Order Seeking to Prevent Improper Federal Payments

2009-12-09T07:57:00.001-08:00

Recently, President Obama signed an Executive Order (EO), requiring the Director of the Office of Management and Budget, within the next 90 days, to identify Federal programs in which the highest dollar value or majority of government-wide payments occur. The Administration plans to crack down on fraud, waste and abuse in health care sectors, including long term care. The EO also authorizes an official in a Senate-confirmed position, such as at the U.S. Department of Health and Human Services (HHS), who has been designated by the head of the agency to provide the agency’s inspector general a report containing the methodology for identifying and measuring improper payments, the plans for meeting reduction targets for improper payments and the agency’s plan to ensure the initiatives undertaken do not unduly burden program access and participation by eligible beneficiaries.

GAO Focus On Deficiencies In CMS Contracts

2009-12-09T07:56:00.001-08:00

The U.S. General Accounting Office has released a new report, Centers for Medicare and Medicaid Services (CMS): Deficiencies in Contract Management Internal Control Are Pervasive, which focuses on the pervasive deficiencies in CMS contract management internal control. The GAO found that based on a random sample of 2008 CMS contract actions, at least 84.3 percent of FY 2008 CMS contract actions contained at least one instance where a key control was not adequately implemented. Also, project officers did not always certify invoices for payment. The GAO concludes the report by making ten recommendations for developing policies to improve oversight and strengthen CMS’ control environment. It also reaffirmed prior recommendations that CMS has failed to fully implement.

2009-12-09T07:55:00.000-08:00

The U.S. Government Accounting Office (GAO) has released a new report, Elderly Voters: Information on Promising Practices Could Strengthen the Integrity of the Voting Process in Long Term Care (LTC) Facilities, which focuses on state and local participation in activities to ensure that long term care residents in nursing facilities have the opportunity to exercise their right to vote. Most states have requirements or guidance to facilitate voting for long term care facility residents, and some states also provide training and conduct oversight of localities’ adherence to state requirements, according to the GAO. According to report, some of these state requirements or guidance for voting in long term care facilities also help to protect against voter fraud and undue influence. The GAO concludes the report by recommending that, given the increasing size of the elderly population, it is important that the Election Assistance Commission (EAC) continue to look at this issue, and work closely with stakeholders to continue to develop guidance on voting in facilities.

OSHA Issues H1N1 Enforcement Procedures

2009-12-01T07:45:00.000-08:00

On November 20, the Occupational Safety and Health Administration (OSHA) released their Enforcement Procedures to ensure uniform inspections of healthcare facilities for worker protection against H1N1 influenza. The procedures are based on the Centers for Disease Control and Prevention’s (CDC) “Interim Guidance on Infection Control Measures for 2009 H1N1 Influenza in Healthcare Settings,” released on October 14.

The OSHA inspections will be initiated primarily in response to worker complaints and will be conducted in workplaces likely to have “high risk” to “very high risk” exposures to the 2009 H1N1 flu. As “high exposure risk” includes healthcare workers who work within 6 ft. of patients with suspected or confirmed H1N1 flu, long term care (LTC) facilities may be targeted for inspections.

Some of the inspection procedures include:

A. Opening Conference

1) The OSHA Compliance Safety and Health Officers (CSHOs) will have an opening conference with the facility’s infection control director, safety director and/or person responsible for occupational health hazard control.

2) The CSHOs will explain the reason for inspection to the employer.

3) CSHOs shall determine whether the employer has a written pandemic influenza plan as recommended by the CDC. If the plan is part of another emergency preparedness plan, the review does not need to be expanded to the entire emergency preparedness plan. Specifically, CSHOs:

a. Determine and document whether the employer has considered or implemented a hierarchy of controls for worker protection; and

b. May review medical records related to worker exposure incidents(s), OSHA-required recordkeeping and any other pertinent information or documentation deemed appropriate by the CSHO.

4) CSHOs must request all information regarding worker training programs and other methods used to inform workers of the hazards associated with exposure to 2009 H1N1 influenza or in preparation for an influenza pandemic.

B. Walkaround and Records Review:

1) CSHOs shall use professional judgment in determining which areas of the facility will be inspected. Photographs or videotaping where practical shall be used for case documentation. However, under no circumstances shall photographing or videotaping of patients be done, and CSHOs must take all necessary precautions to assure and protect patient confidentiality.

2) CSHOs shall interview those employees who work in areas where high or very high 2009 H1N1 influenza exposure risks would be expected (e.g., treatment rooms, areas used for isolation, areas where sputum induction, bronchoscopy, airway suctioning, etc. are performed). Interviews shall not take place in a room or area where a high-hazard procedure is being conducted.

3) CSHOs must review the employer's injury and illness records to identify any workers with recorded illnesses or symptoms associated with exposure(s) to patients with suspected or confirmed 2009 H1N1 influenza. Notably:

a. For purposes of OSHA injury and illness recordkeeping, illnesses due to the 2009 H1N1 influenza are not considered a common cold or seasonal flu.

b. Employers are responsible for recording cases of 2009 H1N1 illness if all of the following requirements are met: (1) the case is a confirmed case of 2009 H1N1 illness as defined by CDC; (2) the case is work-related as defined by recordkeeping rules; and (3) the case involves one or more of the recording criteria set forth.

c. CSHOs shall investigate OSHA 300 log entries for confirmed cases of work-related 2009 H1N1 influenza transmission.

C. Citation Guidance

1) Specific Guidance: The following requirements shall be cited for high to very high occupational exposure risk. This list is not exhaustive:

a. Section 5(a)(1) General Duty Clause of the OSH Act;

b. 29 CFR 1904 Recording and Reporting Occupational Injuries and Illness;

c. 29 CFR 1910.132 General requirements-Personal Protective Equipment (PPE);

d. 29 CFR 1910 .133 Eye and Face protection;

e. 29 CFR 1910.134 Respiratory Protection;

f. 29 CFR 1910.141 Sanitation;

g. 29 CFR 1910.145 Specification for accident prevention signs and tags; and

h. 29 CFR 1910.1020 Access to employee exposure and medical records.

2) Use of CDC Recommendations: The most current CDC guidance shall be consulted in assessing potential workplace hazards and to evaluate the adequacy of an employer’s protective measures for workers. Protective measures or guidelines referenced in the Directive shall be considered adequate only if those measures are at least as protective as the CDC’s.

3) Observation of Hazards: Where no violations of OSHA standards, regulations, or the general duty clause are observed or documented, CSHOs shall terminate the inspection and leave the facility. If deficiencies not addressed by OSHA standards or regulations are discovered in the pandemic influenza plan for high to very high occupational exposure risk for 2009 H1N1 influenza, a Hazard Alert letter recommending the implementation of protective measures that address identified workplace hazards should be considered. [Sample letters are included in the guidance.]

4) Respiratory Protection Standard: CSHOs must evaluate whether healthcare workers who are expected to perform high and very high risk exposure tasks are using respirators. The CDC recommends that healthcare personnel who are in close contact with patients with suspected or confirmed 2009 H1N1 influenza, or are present during the performance of aerosol-generating procedures on patients with suspected or confirmed 2009 H1N1 influenza virus, wear respiratory protection that is at least as protective as a fit-tested disposable N95 filtering facepiece respirator. The CDC recommends that such employees don respiratory protection prior to entering a 2009 H1N1 influenza patient’s room.

Exceptions: CSHOs shall cite the Respiratory Protection Standard where employers fail to conduct an initial hazard evaluation to identify potential respiratory hazards of employees who have high or very high occupational exposure risk to the 2009 H1N1 influenza as defined in the Directive. However, if the employer can establish all of the following, CSHOs should not issue a citation:

a. There is a shortage of respirators that are at least as effective as an N95 respirators or better;

b. The employer made a good faith effort to obtain other alternative respirators such as N99, N100 or reusable elastomeric respirators;

c. The employer made an effort to monitor their supply of N95s and to prioritize their use according to CDC guidance;

d. Surgical masks and eye protection devices were provided as an interim measure to protect against splashes and large droplets (Note: surgical masks are NOT respirators and do not provide protection against aerosol-generating procedures); and

e. Other measures were instituted to protect employees, for example, use of partitions or other engineering controls that might reduce the need for PPE or reducing exposure through cohorting patients.

Where the employer demonstrates that N95s are not available for high risk exposures, as outlined above, facemasks may be used in addition to other protective measures.

5) General Duty Clause: Because the use of respirators or other personal protective
equipment may not completely protect against the 2009 H1N1 influenza virus, employers have obligations under the General Duty Clause to take further measures, including establishing engineering and administrative controls, where standards alone may not provide adequate protection. Specifically:

a. Potential engineering controls to be considered include whether the employer has installed sneeze guards, windows at clerical intake areas or other barriers between workers and the general public (if feasible) to prevent transmission of the 2009 H1N1 influenza.

b. Potential administrative controls include whether the employer has: (1) ensured that unprotected healthcare personnel are not allowed in rooms where an aerosol-generating procedure has been conducted unless the employer establishes that potentially infectious particles have been removed or minimized; (2) eliminated the potential source of infection by screening and limiting access to sick visitors; (3) implemented a system for expeditious triage, isolation and/or cohorting of suspected pandemic patients; or (4) developed exposure risk communication measures.

c. In addition, the employer should implement a system that encourages employees at high to very high occupational exposure risk to get the 2009 H1N1 influenza vaccination and provide it at no cost. A signed declination form may be used to document that the employer offered it and employees did not accept vaccination.

Appendix

The appendix of the OSHA Procedures document contains a sample employer notification/outreach letter, OSHA outreach and guidance documents, CSHO guidance questions to consider during an H1N1-related inspection, and various fact sheets.

As previously stated, the OSHA enforcement procedures are available here.

HHS Strengthens HIPAA Enforcement Rule to Conform with HITECH Act

2009-11-19T11:21:00.001-08:00

In October, the U.S. Department of Health and Human Services (HHS) issued an interim final rule to strengthen the enforcement of the rules promulgated under the Health Insurance Portability and Accountability Act (HIPAA). The new interim final rule amends the current enforcement regulations to reflect the amendments to HIPAA under the Health Information Technology for Economic and Clinical Health (HITECH) Act, and is effective February 18, 2009. The new rule substantially increases the potential penalties for HIPAA violations by covered entities, including long term care providers. Prior to the HITECH Act, the HHS Secretary could not impose a penalty of more than $100 for each violation or $25,000 for all identical violations of the same provisions. A covered entity also could bar the Secretary’s imposition of a civil money penalty (CMP) merely by showing it did not know that it had violated the HIPAA rules. Subsequently, the HITECH Act established tiered ranges of increasing minimum penalty amounts, with a maximum penalty of $1.5 million for all violations of an identical provision. Further, under the HITECH Act a covered entity can no longer bar the imposition of a CMP for an unknown violation unless it corrects the violations within 30 days of discovery. The new rule incorporates these HITECH enforcement provisions into the new interim final rule. To obtain a copy of the rule, go to http://edocket.access.gpo.gov/2009/pdf/E9-26203.pdf.

Upcoming OIG Culturally/Linguistically Service Survey

2009-11-17T06:53:00.001-08:00

The HHS, Office of Inspector General (OIG) is scheduled to send out a short survey in mid-December 2009 to Medicare Part A Skilled Nursing Facility (SNF) providers to determine compliance with standards on culturally and linguistically appropriate services in Medicare. We encourage you to quickly and carefully respond to this OIG request. As we previously reported, the OIG’s 2010 Work Plan describes the Federal government’s plan to review whether health care organizations, including long term care providers, are complying with the Office for Civil Rights (OCR) and Office of Minority Health (OMH) issuances against national origin discrimination and the protection afforded to persons with limited English proficiency. The Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) requires OIG to review the extent which Medicare providers are complying with the OCR guidance and OMH standards, and to describe the costs associated with or savings related to the provision of language services to comply with these issuances.

NCAL Report Examines State Medicaid Rate Setting Methods for Assisted Living

2009-11-12T13:30:00.000-08:00

AHCA/NCAL recently released a comprehensive national report, “State Medicaid Reimbursement Policies and Practices in Assisted Living,” detailing the wide variation in how states determine Medicaid payment levels for assisted living communities and other related policy issues. Among the findings is that the number of people receiving Medicaid coverage in assisted living communities grew significantly from 2007 to 2009 after virtually no growth over the previous three years.

Information on Medicaid payment for assisted living and related policies is of critical importance as states continue struggling to maintain programs during the economic recession. Assisted living coverage for low-income seniors also faces a number of long-standing systemic challenges including that the federal/state Medicaid program does not pay for room and board.

The report by independent policy researcher Robert Mollica describes how states respond to these issues in determining of a variety of policies including whether or how much states supplement payments for room and board; whether states allow families and individuals to supplement Medicaid payments; and whether states allow beneficiaries to share apartments, and under what conditions.

Among the major findings are the following:

· The number of people receiving Medicaid coverage for services in licensed assisted living settings increased 9.2% between 2007 and 2009, and 43.7% between 2002 and 2009.

· Nationwide, about 131,000 low-income frail elderly Americans receive services in assisted living communities under the Medicaid program (about 134,500 if programs with state-only funding are included).

· Thirty-seven states provide coverage under §1915 (c) home and community based services waivers to cover services in residential settings; thirteen states provide coverage directly under their state Medicaid state plan; four include services in residential settings under §1115 demonstration program authority; and six use state general revenues. States may use more than one funding source.

· Tiered rates are the most common methodology for reimbursing assisted living providers (19 states) and flat rates are used in 17 states.

· Twenty-three states cap the amount that may be charged for room and board.

· Twenty-four states supplement the beneficiary’s federal Supplemental Security Income (SSI) payment, which states typically use as the basis for room and board payment. SSI payments combined with state supplements range from $722 to $1,350 a month depending on the state. Some states provide no supplement.

· Twenty-five states permit family members or third parties to supplement room and board charges.

· Twenty-three states require apartment style units; 40 states allow units to be shared; and 24 states allow sharing by choice of the residents.

· Screening for mental health needs is performed by case managers and assisted living community staff in nine states; by case managers only, in 10 states; and by assisted living staff only, in nine states.

· Mental health services are arranged by assisted living communities in 16 states; case managers in 20 states; and may be provided directly by assisted living communities in three states.

Information for the report was obtained from two primary sources. Baseline information on state assisted living reimbursement policies and practices was obtained from previous studies sponsored by the U.S. Department of Health and Human Services, Office of the Assistant Secretary for Policy and Evaluation, and RTI International in 2002, 2004, and 2007.

The information was updated through an electronic survey and telephone calls with state officials responsible for managing Medicaid services in licensed assisted living/residential care settings. Information was also obtained from state websites when available. Responses were received from 45 states and the District of Columbia. Information for states that did not respond to the survey was obtained from previous reports and material found on state web sites. Data were collected between March and June 2009.

To obtain a copy of the report, visit www.NCAL.org.

OSHA Launches H1N1 Flu Website, Posts Fact Sheets for Employers and Workers

2009-11-11T10:47:00.000-08:00

The Occupational Safety and Health Administration (OSHA) has launched a new “Workplace Safety and H1N1” website, which contains fact sheets explaining basic precautions for protecting workers against the H1N1 influenza A virus. The website includes separate guidance for health care workers, health care employers, and all other workers and employers. The four sets of guidance each describe basic and additional precautions for workers based on OSHA's hierarchy of controls.

I. Guidance for Health Care Employers

In the guidance for health care employers, OSHA states that a combination of workplace controls are needed to protect workers and help reduce the transmission of 2009 H1N1 virus, including:

1) Encouraging sick workers to stay at home;

2) Emphasizing hand hygiene and cough etiquette;

3) Promoting vaccination;

4) Using airborne infection isolation rooms and other workplace controls;

5) Limiting patient transport and using other work practices; and

6) Providing and ensuring the use of appropriate personal protective equipment (PPE.)

Workplace controls are the most effective means for reducing exposure and should be considered first. PPE is the least effective means for reducing exposure and should be considered only when close contact cannot be otherwise eliminated using other means.

Additional controls for healthcare activities include:

1) Install physical barriers, such as sneeze guards or reception windows, partitions in triage areas, etc.;

2) Cohort H1N1 patients if single rooms are not available;

3) Allow only those staff who are essential for patient care and support into patient isolation rooms;

4) Limit access to the workplace by the general public, or ensure that they can only enter designated areas;

5) Limit patient transport and minimize face to face contact by using Internet and phone-based client service;

6) Keep the workplace clean;

7) Post signs on doors of rooms for patients with H1N1 that state the precautions required for entry;

8) Educate workers about conditions that place them at higher risk for complications of flu, e.g., pregnancy, asthma, etc.; and

9)Prepare for possible school closures or suspension of child care programs.

When workplace controls and work practices are not feasible or are not enough to protect workers, employers must provide appropriate PPE and ensure its proper use. HHS/CDC recommends the use of a fit-tested N95 disposable respirator or better for healthcare personnel whose job duties require them to be in close contact (within 6 feet or entering into a small enclosed airspace [e.g., average patient room] shared with the patient) with confirmed or suspected 2009 H1N1 flu patients and for personnel performing high-risk aerosol-generating procedures on such patients.

Employers who have workers wearing respiratory protection (including N95 disposable respirators) must have a complete written respiratory protection program in place in accordance with OSHA's Respiratory Protection standard, 29 CFR 1910.134 including medical evaluations, training and fit testing when respirator use is necessary.

OSHA acknowledges that the demand for disposable respirators may exceed available supplies during the 2009-2010 flu season. It is critical that employers make a good faith effort to obtain respirators and use all available means to maximize the availability of respiratory protection. Employers also need to clearly identify and communicate to workers which tasks require the use of respiratory protection, and should reduce the number of workers who need to use respiratory protection by using the workplace controls and work practices identified above. Additional information about respirator use and assigning priorities is posted on the HHS/CDC 2009 H1N1 website.

II. Guidance for Health Care Workers

OSHA’s guidance for health care workers parallels the employer guidance. Some of the notable precautions in the guidance include:

1) Try not to use a coworker’s phone, desk, office, computer, or other work tools and equipment. If you must do so, consider cleaning it first with disinfectant;

2) Talk to your employer about alternative work assignments of you are in a high risk category for H1N1; and

3) Modify patient intake, triage and other service areas to increase space between workers, coworkers and patients (e.g., install partitions.)

The worker guidance also notes that “demand for disposable respirators may outpace available supplies. Your employer should work with you so that you understand how the other controls identified [in the guidance] will be used to maximize the availability of respiratory protection and how disposable respirator use will be prioritized in your workplace if a severe shortage exists."

OSHA's new H1N1 influenza website, which includes the guidance, is available at http://www.osha.gov/h1n1/index.html.

OIG Seeking Quality Monitors

2009-11-06T12:48:00.000-08:00

In October, the U.S. Office of Inspector General (OIG)issued a notice in the Federal Register that seeks to identify potential organizations to monitor health care entities under quality-of-care Corporate Integrity Agreements (CIA). A CIA is an agreement between the OIG and a health care provider, including long term care providers, as part of a settlement for alleged civil wrong-doing related to any of the Federal health laws. The government may enter into a CIA with a provider/entity instead of seeking to exclude the entity from the Medicare, Medicaid and other Federal health care programs. Each CIA is unique to the entity, but a typical CIA will last for five years and will require the entity to implement procedures to comply with Federal health care laws, often including developing a compliance plan and hiring a compliance officer.

HHS, DOJ Release Health Care Fraud and Abuse Control Report

2009-11-06T12:46:00.000-08:00

In September, the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Justice (DOJ) released the Health Care Fraud and Abuse Control Program Annual Report for FY 2008, stating that the Federal government won or negotiated approximately $1 billion in judgments and settlements and attained additional administrative impositions in health care fraud cases and proceedings. The Medicare Trust Fund received transfers of approximately $1.94 billion during this period as a result of government efforts, as well as those of preceding years, in addition to over $344 million in Federal Medicaid money similarly transferred separately to the Treasury as a result of these efforts. The Health Care Fraud and Abuse Control (HCFAC) account has returned over $13.1 billion to the Medicare Trust Fund since the inception of the program in 1997.

OSHA's Hazard Communication Proposed Rule

2009-10-27T13:35:00.000-07:00

As AHCA has announced, on September 30, 2009, OSHA released a proposed rule to modify its existing Hazard Communication Standard (HCS) to comform with the United Nation’s (UN) globally Harmonized System of Classification and Labeling of Chemicals (GHS). OSHA believes this will enhance the effectiveness of the HCS in ensuring that employees are apprised of the chemical hazards to which they may be exposed, and in reducing the incidence of chemical-related occupational illnesses and injuries. Comments on the proposed rule are on due on December 29, 2009. To have your comments included in AHCA’s comments to OSHA, please send them to Melissa Temkin by Friday, December 11.

OSHA is proposing that employee training on implementation of revisions be required two years after the final rule, and all provisions would be implemented in three years after completion of the rule. During the transition period, employers would be required to be in compliance with either the existing HCS or the modified GHS, or both. There must be no time during the transition period when hazard communication is not in effect in the workplace, or when information is not available under either the existing requirements or the new final standard for exposed employees.

The Current Hazard Communication Standard

The HCS requires chemical manufacturers to evaluate the chemicals they produce and determine if they are hazardous, and to inform “downstream” (post production) employers and employees of any chemical hazards through communications such as labels and “Material Safety Data Sheets (MSDSs).” Employers with hazardous chemicals in their workplaces are required to have a hazard communication program and to train employees on chemical hazards on-site.

The GHS attempts to standardize the classification of hazardous chemicals and the communication of those hazards between countries all over the world. Once adopted globally, the GHS is expected to improve trade across countries because chemical manufacturers, in particular, will be able to more easily determine the hazards of their products and can communicate those hazards through standardized means. OSHA’s proposal to change its hazard communication rules to comport with the GHS is its attempt to comply with this international effort.

Summary of the Proposed Rule

The proposed rule primarily affects three aspects of the existing hazard communication standard, the first two of which most directly affect chemical manufacturers. The third impacts employers that use hazardous chemicals in the workplace, which would include long term care (LTC) providers:

1) Hazard Classification:

The proposed rule would change the means that chemical manufacturers currently use to determine whether, and to what extent, a chemical is hazardous. Manufacturers would have to classify any health or physical hazards of a chemical, and hazard classes would be standardized. Within each hazard class, manufacturers would be required to place the chemical into categories, e.g., hazard Category 1 for carcinogens is a “known or presumed human reproductive toxicant,” etc. Notably, manufacturers are not required under the proposal to conduct testing of the chemicals; they must look at all the evidence associated with a chemical and place it within the proposed hazard categories.

2) Labels and Safety Data Sheets (SDSs):

The proposed rule standardizes the labels and SDSs to convey chemical hazards to downstream users.

a. Labels: The existing HCS does not require any specific format for labels. Under the proposed rule, all labels would have to include:

i. A Signal Word: Either DANGER or WARNING to denote the severity of the hazard;
ii. A Pictogram: This includes a symbol along with other graphical elements, such as a border or background color;
iii. Hazard Elements: Describing the hazards associated with the chemical; and
iv. Precautionary Statements: To describe the recommended measures that should be taken to protect against hazardous exposures.

b. Safety Data Sheets: OSHA is proposing a standardized format for SDSs, referred to as MSDSs under the existing hazard communication rule. By standardizing the format and provision of information, OSHA believes that employers and employees will better understand the important information conveyed on the SDSs.

3) Training:
This is the part of the proposed rule that will most impact LTC providers. Although GHS does not include harmonized training requirements, it does recognize the important role that training plays in hazard communication. Per the proposed rule, employers should train employees on the new labels, hazard classifications and workplace specific systems, the order of information on SDSs, etc.

Specific Sections of the Rule

I. Hazard Communication

This section of the rule (see p. 50439) requires chemical manufacturers or importers to classify the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, SDSs, and information and training. Employers who do not produce or import chemicals, such as LTC employers, need only focus on those parts of the rule that deal with establishing a workplace program and communicating information to their workers.

New definitions in this section include:
a. Hazard category: the division of criteria within each hazard class, e.g., oral acute toxicity and flammable liquids.

b. Health hazard: A chemical that is classified as posing one of the following hazardous effects: acute toxicity, skin corrosion or irritation, etc. Definitions in this category will remain in Appendix A of the standard.

c. Pictogram: A composition that may include a symbol plus other graphic elements…. that is intended to convey specific information about the hazards of a chemical. Tables of pictograms are available on pp. 50482-50539 of the rule.

Physical hazard definitions will be place in a new Appendix of the standard: Appendix B.

II. Hazard Communication Program
A hazard communication program includes:

a. A list of hazardous chemicals in the workplace. The employer must have SDSs for these chemicals. The list can be common names or product names, rather than individual chemical ingredients of each product by specific chemical identity or chemical name; and

b. A plan for how hazard communication will be implemented in the workplace, e.g., how the standard’s requirements for labels, SDSs, and training will be met; how the hazards of non-routine tasks will be addressed; and how hazard communication will be handled in a multi-employer workplace situation.

III. Labels

Points from this section of the rule include:

a. Label elements include signal words, hazard statements, pictograms and precautionary statements-- all are intended to make label warnings more noticeable and easier to understand, and to better communicate hazard and precautionary information. Employers can include additional information on labels and SDSs if they choose to do so.

b. Once a chemical is classified to its hazard classes and corresponding categories, the GHS specifies (for use by manufacturers, etc.) in Appendix C “Allocation of Label Elements” exactly what information is to appear on a label for that chemical.

c. The employer shall ensure that workplace labels or other forms of warning are legible, in English, and prominently displayed on the container, or readily available in the work area throughout each work shift. Employers having employees who speak other languages may add the information in their language to the material presented, as long as the information is presented in English as well.

d. When hazardous chemicals are transferred from labeled containers into portable containers, which are intended only for the immediate use by the employee who performs the transfer, the employer is not required to label the portable container.

IV. Safety Data Sheets (SDSs)

Points from this section of the rule include:

a. A new Appendix D is being added to the standard to address SDSs, which indicates what information must be included in each section of the labels. Sections include: identification, hazard identification, composition/information on ingredients, first aid measures, handling and storage, etc. A full list with explanations is provided on p. 50540 of the rule.

b. Permissible exposure limits (PELs) will remain on SDSs.

c. Employers will automatically receive new SDSs; they will not have to solicit them from manufacturers, importers or distributors.

d. The most recent SDS version will take precedence in the workplace and should be kept on file there.

e. OSHA proposes to add percentage composition information to the SDS, which may lead to “trade secret” issues.

Other Standards Affected by GHS

OSHA proposes to modify safety standards that either directly reference the HCS or provide information pertinent to the SDSs, in particular regarding the storage and handling of chemicals. Proposed amendments start on p. 50420 of the rule. Standards discussed do not relate to long term care, e.g., asbestos, carcinogens, chromium, etc.

Other points

• Despite requests, OSHA states it is infeasible for them to have an on-line repository of SDSs as they can change very often.

• OSHA and NIOSH are considering development of generic training on label symbols and pictograms to make available to employers.

• There are no “gradations of hazards” in GHS. For example, “cancer hazard,” once considered the greatest hazard, would be changed to “Carcinogenic” on a label.

Economic Impact

The economic impact on nursing and residential care facilities, per OSHA, is listed in a series of tables starting on p. 50331 of the rule. For small entity nursing and residential care facilities, figures are listed on pp. 50362 and 50369 of the rule.

CMS Updates DD Providers at AHCA/NCAL Annual Meeting

2009-10-14T13:21:00.000-07:00

On Monday, October 5, Sahana Priyahath and Nadine Renbarger from the Centers for Medicare and Medicaid Services (CMS) Chicago regional office provided an update to developmental disabilities (DD) residential services providers at AHCA/NCAL’s annual meeting. Points made during their presentation included:

1) CMS has four new DD-expert staff, one of whom is a Qualified Mental Retardation Professional (QMRP.)

2) CMS is working on interpretive guidance. Guidance for client protections and active treatment regulations are completed and being reviewed by CMS Central office.

3) CMS is working on survey and certification (S&C) clarification memos on active treatment requirements. The money management memo was released in July and can be viewed here. For self-administration of medication, CMS stated in their 10/5/09 presentation that the S&C memo will state that if an ICF/MR client can learn this skill, there must be a formal program in place.

4) There are 2 federal survey contractors who will perform an estimated 100 (total) of these two ICF/MR surveys in 2010:

a. Team participation survey: a federal surveyor will accompany a state survey team on annual, complaint and follow-up surveys. Public and private facilities can be surveyed, and they may be chosen randomly or due to compliance history.

b. Comparative/look behind survey: For annual surveys, 30-60 days later a federal surveyor will perform another survey and review 75% of the client sample that the state agency originally reviewed.

5) CMS is revising its basic and advanced ICF/MR surveyor training programs. Trainees will go on-site to ICFs/MR and perform surveys. CMS is accepting volunteer ICFs/MR to participate.

6) CMS held a technical expertise panel (TEP) meeting earlier this year to discuss “forensic units” in ICFs/MR. Forensic units house individuals with criminal backgrounds or who are court ordered into facilities. AHCA participated in the meeting. CMS questions whether ICFs/MR are the appropriate placements for these individuals, especially whether the facility can meet the client protections condition and not globally restrict all residents’ rights in order to care for the few with criminal backgrounds. CMS is vetting discussions from the TEP panel and will reconvene the group in the future.

7) For dually diagnosed clients, the ICF/MR must show that they evaluated the client and have tried to decrease his/her psychotropic medication to the lowest level possible. The facility must also verify the diagnosis of mental illness.

8) CMS’ concerns for the 8 Conditions of Participation (CoPs):

1. Governing Body: Facility is responsible for outside services provided to clients. How do they communicate with the school a client attends or incorporate their outside training in the facility?

2. Client Protections: There must be reporting and prevention programs in place for clients who abuse themselves or other clients/staff. It is important to determine (or try to) if the client’s abusive behavior is willful; then look at neglect on behalf of the facility to put a plan in place to prevent abuse.

3. Facility Staffing: If the ICF/MR needs more than the required ratio of staff per clients to meet the needs of the particular client population, increased staffing must be put in place. If not, the facility will be cited.

4. Active Treatment: A client should not be admitted if he/she does not need active treatment. Some new issues for CMS: for someone with Alzheimer’s, regression cannot be prevented. Also, active treatment can be too painful for a client on hospice. CMS acknowledged that they expect to see changes in active treatment as aging occurs.

5. Client Behavior and Facility Practices: Restrictive devices should not be put in place in lieu of active treatment.

6. Dietary Services: Is there family style dining? If not, why? For a tube fed client, their family, guardian and/or IDT need to decide if he/she would want to be in the dining area during meal time.

7. Health Care Services: For preventive screening (e.g., mammograms), the community standard is considered appropriate for ICF/MR clients. H1N1 vaccinations are not mandatory. Appropriateness is based on each client’s individual situation and doctor recommendation.

8. Physical Environment: A hot issue is evacuation being practiced on each shift. ICF/MR staff have stated that this is very difficult for their clientele to do. CMS may be issuing an S&C memo on this issue.

9) CMS also commented on these “hot topics”:

a. For video cameras used in ICF/MR, they cannot be a substitute for adequate staffing, nor can they invade clients’ privacy. Cameras cannot be placed in clients’ bedrooms or bathrooms; only in common areas without invading clients’ privacy.

b. For locked possessions, if a client’s possessions need to be locked up due to his/her destructive behavior, the interdisciplinary team (IDT) must go through the entire evaluation and intervention process first. However, staff cannot lock up a client’s possessions due to the destructive behavior of another client.

c. An upcoming S&C memo clarifies the definition of injury of unknown origin as being suspicious in nature and unobserved/unexplainable by the resident. Immediate reporting is defined as “as soon as possible,” not to exceed 24 hours.

d. CMS will accept reporting an injury of unknown origin via a text message or e-mail if the staff received verification that the administrator received the message. Until such verification, the reporting is not considered complete.

e. If the facility uses electronic health records, CMS needs to be able to access them.

f. Care plan/IDT meetings can be performed via conference call, skype or instant messaging.

Nursing Facilities are Targeted in OSHA’s Recordkeeping National Emphasis Program

2009-10-14T05:23:00.000-07:00

On October 1, the Occupational Safety and Health Administration (OSHA) announced its Recordkeeping National Emphasis Program (NEP,) effective September 30. The program will expire in one year and directs OSHA inspectors to scrutinize all injury and illness records during calendar years 2007 and 2008 for a sampling of employees at selected workplaces in historically high-risk industries, which includes nursing facilities. The purpose of the NEP is to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. OSHA cites several recent studies asserting under-recording by employers on OSHA 300 logs.

A maximum of five workplaces will be inspected in each OSHA region under the pilot program. Workplaces participating in OSHA’s Voluntary Protection or Safety and Health Achievement Recognition Partnership may also be exempted, although OSHA said it will develop “other enforcement and quality assurance programs” to address the recordkeeping issue in those programs. State plan states are not required to participate in the program, but OSHA encourages them to do so.

Employers with 40 or more employees in 21 different industries, including nursing facilities (NAICS code 623110), were selected by OSHA for the NEP because they have a high Days Away, Restricted or Transferred (DART) rate- between 5.7 and 8.1- per the Bureau of Labor Statistics. The 21 industry list also included animal slaughtering, soft drink manufacturing, poultry processing, etc.

Inspectors will independently reconstruct “OSHA 300 forms” which log work-related injuries and illnesses, for each employee in the sample using the following records sources from the employer: medical records, workers' compensation records, insurance records, payroll and absentee records, company safety incident reports, company first-aid logs, alternate duty rosters, disciplinary records pertaining to injuries and illnesses, and any records stored at offsite locations or medical clinics. Those forms will then be compared against the actual OSHA 300 forms filed by the employer.

Inspection Specifics

During inspections, Compliance Safety and Health Officers (CSHOs) will:

1) Calculate the DART rate for 2007 and compare it against the rate the employer previously reported to OSHA. If the DART rate that the CSHO calculates is above 4.2, the inspection will not be conducted.

2) Review the employer’s 2007 employee roster and select employees whose records will be reviewed. For establishments with less than 100 employees, all records will be reviewed. For those with 101-250 employees, 50% of records will be reviewed. If the establishment has over 250 employees, 33% of records will be reviewed.

3) Review records (record sources are listed above.)

4) Independently reconstruct log entries for the employees and compare them against employers’ logs.

5) Visit any off-site medical clinic to review medical records pertaining to the employees being investigated.

6) Interview the designated recordkeeper. The CSHO must ask whether there are any company policies that might ultimately discourage recording on the injury and illness logs, e.g., an awards program tied to the number of injuries and illnesses recorded on the OSHA log.

7) Interview a sub-sample of employees. CSHOs are instructed to focus interviews on employees likely to be injured or become ill. Key questions for employees include:
a. Have you ever been encouraged to not report an injury or illness or been encouraged to report an injury or illness as a non-work related event or exposure?
b. Are there any safety incentive programs, contests, or promotions or any disciplinary programs here? Do these- or anything else- affect your decision whether to report an injury or illness?

8) Interview management representatives regarding how injuries and illnesses are recorded and to get information on any incentive or disciplinary programs that may influence recordkeeping.

9) Interview first-aid providers and other health care professionals. This interview should “seek to determine the extent to which Management may influence medical treatment of ill or injured employees for the purposes of modifying OSHA recordability and to determine whether recordkeeping problems exist.”

10) Perform a limited walkaround of the main plant operation areas to look for “consistency with the recorded injuries and illnesses” and to address any violations in plain view.

11) Hold a closing conference between the inspector, employer and employee representatives to discuss the strengths and weaknesses of the employer’s recordkeeping program and any recordkeeping deficiencies or violations found.

12) If a “significant portion” of injuries and illnesses at a given workplace are ergonomics-related, the inspector must calculate a days-away-from-work case rate. If the rate is equal to or greater than twice the industry rate, additional interviews with employees, management, and health care professionals are triggered.

Any recordkeeping violations identified during the inspection can yield citations and penalties. Copies of the logs, worksheets, and interviews will be forwarded to OSHA’s Office of Statistical Analysis, which will then develop a final report on the results of the program.

To review the full directive, “Injury and Illness Recordkeeping National Emphasis Program” go to http://www.osha.gov/OshDoc/Directive_pdf/CPL_02_09-08.pdf.

OIG Releases 2010 Work Plan

2009-10-05T12:10:00.000-07:00

The Office of Inspector General has released its 2010 Work Plan, which sets forth various projects to be addressed during the new fiscal year by the OIG’s Office of Audit Services, Office of Evaluation and Inspections, Office of Investigations and Office of Counsel to the Inspector General. The Work Plan includes projects planned in each of the Department’s major entities including the Centers for Medicare & Medicaid Services (CMS); the public health agencies; and the Administrations for Children, Families and Aging. Looking only at CMS projects, “nursing homes” are listed as a separate category, and upcoming OIG projects will include focus on: Part B Services in Nursing Homes; Medicare Requirements for Quality of Care in Skilled Nursing Facilities (SNFs); Accuracy of SNF Resource Utilization Groups Coding; Nursing Home Emergency Preparedness and Evacuations During Selected Natural Disasters; Criminal Background Checks for Nursing Facility Employees; Oversight of Poorly Performing Nursing Homes; Part Be Services in Nursing Homes; and Nursing Home Residents Aged 65 or Older Who Received Antipsychotic Drugs. To obtain a copy of the complete 2010 Work Plan go to http://oig.hhs.gov/08/Work_Plan_FY_2010.pdf.

EEOC Proposed ADA Regulations Broaden Definition of Disability

2009-10-02T08:39:00.000-07:00

On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) released a notice of proposed rulemaking, revising its American with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008, which went into effect on January 1, 2009. The Act widely expands the definition of “disability,” which in turn expands the number of individuals entitled to protection under the ADA. The EEOC also released Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008, which details the significant provisions in the agency’s proposed regulation. Comments are due to the EEOC from other interested parties on November 23, 2009.

DOT Releases Rule on Mandatory for Return-to-Duty and Follow-Up Testing

2009-09-23T11:44:00.000-07:00

The Department of Transportation (DOT), Office of the Secretary, published a final rule effective on August 31, 2009, requiring mandatory direct observation (DO) of specimen collections for all return-to-duty and follow-up testing in the case of employees in transportation-related jobs who have failed or refused to take a prior drug test. All employees who go for return-to-duty and follow-up tests on and after the effective date must have their collections observed. This includes employees currently in follow-up testing programs who will still be in those programs on and after August 31. Some employers and labor organizations may have entered into collective bargaining agreements that prohibit or limit the use of DO collections in return-to-duty and follow-up testing situations. Beginning August 31, 2009, conducting all follow-up and return-to-duty testing using DO collections is a requirement of Federal law. To obtain more information on this issue go to DOT’s website.

MSIS Data Usefulness for Detecting Fraud/Abuse Flawed

2009-09-23T11:43:00.000-07:00

The Office of Inspector General (OIG) has released a report on the Medicaid Statistical Information System (MSIS) data from FY 2004-2006, which is the only source of nationwide Medicaid claims and eligibility information. CMS collects MSIS data directly from the States to, among other things, assist in detecting fraud, waste and abuse in the Medicaid program. The report indicated that MSIS data was on an average, one and a half years old when it was finally released to all end-users. CMS did not fully disclose or document information about the accuracy of MSIS data. The MSIS did not capture many of the data elements that can actually assist in fraud/abuse detection. The OIG recommended that both the States and CMS do a better job to reduce the timeframes for file submission and validation; improve the documentation and disclosure of error tolerance adjustments and expand current State Medicaid data collection and reporting.

Sebelius Releases $33 Million in ARRA Funds to Train Health Professionals

2009-09-23T11:40:00.000-07:00

HHS Secretary Kathleen Sebelius, recently announced awards totaling $33 million to expand the training of health care professionals. The funds are part of the $500 million allotted to HHS’ Health Resources and Services Administration (HRSA) to address workforce shortages under the American Recovery and Reinvestment Act (ARRA). The grants are distributed through six different HRSA programs: $19.3 million for scholarships to disadvantaged students which funds health professions schools and training programs; $4.9 million to the Centers of Excellence which funds health professions schools to establish or expand programs for minority individuals; $3 million to public health traineeships to fund schools of public health; $2.6 million to nursing workforce diversity to increase nursing education opportunities for individuals from disadvantaged backgrounds; $2.5 million to health career opportunities which funds schools and health professions training sites to establish or expand programs that help individuals from disadvantaged backgrounds enter and graduate from a health professions program; and $810,925 to dental public health residency training to fund residency programs in dental public health.

OSHA Final Rule: Updating PPE Standards Based on National Consensus Standards

2009-09-22T13:56:00.000-07:00

OSHA has issued a final rule, effective October 9, to update the references in its regulations for personal protective equipment (PPE) for eye-and face-protective devices, and head and foot protection for general industry (which includes LTC) as well as some other industries. The rule essentially:

1) States that employers may use PPE constructed in accordance with any of the three most recent (post-1986) national consensus standards (from the American National Standards Institute [ANSI] or the American Society for Testing and Materials [ASTM]; or

2) The employers can use PPE not manufactured in accordance with one of the national consensus standards when the employers can demonstrate that its PPE provides employee protection that is at least as effective as the PPE constructed in accordance with the appropriate national consensus standard(s) that are listed in the regulation.

3) In addition, the Agency will use appropriate rulemaking, including direct-final rulemaking, to incorporate new consensus editions into the regulation and to remove outdated editions from the regulatory text.

We believe that OSHA’s intent with the rule is not to require any changes in how employers use PPE; on the contrary, the intent is to broaden the PPE that employers are allowed to use. ANSI and ASTM standards can be found at www.ansi.org and www.astm.org respectively.

The rule can be viewed at http://edocket.access.gpo.gov/2009/pdf/E9-21360.pdf.

HHS Announces $13.4 Million in Financial Assistance to Support Nurses Working

2009-09-08T13:11:00.000-07:00

The U.S. Department of Health (HHS) has announced the release of $13.4 million for loan repayments to nurses who agree to practice in facilities with critical shortages and for schools of nursing to provide loans to students who will become nurse faculty. The funds were made available by the American Recovery and Reinvestment Act (ARRA). The awards come from two programs administered by HHS’ Health Resources and Services Administration (HRSA) including:
· The Nurse Education Loan Repayment Program and the Nurse Faculty Loan Program: $8.1 million will be awarded competitively, to help 100 registered nurses pay their nursing education debts. The program repays 60 percent of the loan balance of registered nurse in exchange for two years of service at not-for-profit facilities with a critical shortage of nurses. AHCA has been, and will continue, to fight to include for-profit facilities in this program.
· The Nurse Faculty Loan Program: $5.3 million go to schools of nursing to support the training of 500 masters and doctoral nursing students who plan to become nurse faculty after completing their education. Following graduation, loan recipients may cancel up to 85 percent of the loan principal and interest in exchange for four years of services as a full-time nursing faculty at a school of nursing.

HHS Releases HITECH Act Breach Notification Rule

2009-09-08T13:04:00.000-07:00

As required by the Health Information Technology for Economic and Clinical Health (HITECH) Act passed as part of the American Recovery and Reinvestment Act of 2009 (ARRA), the U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR), has recently issued breach notification regulations requiring health care (including long term care) providers, to notify any affected individuals following a breach of unsecured protected health information. Specifically, the interim final regulations require covered entities to promptly notify affected individuals, the HHS Secretary, and in some cases, the media, of a breach. The regulations also require business associates of covered entities to notify the covered entity of breaches at or by the business associate. The OCR interim final regulations are effective 30 days after publication in the Federal Register, and include a 60-day comment period.

DEA Issues Dear Practitioner Letter

2009-08-20T08:21:00.000-07:00

Last week, the DEA stakeholder group received notification that the long-awaiting "Dear Practitioner" letter from DEA was released. Over 90-days ago, the letter was requested by the long term care stakeholder group that includes pharmacies, hospice, provider organization and other providers, and which is lead by the American Society of Consultant Pharmacists (ASCP). The Agency’s action to finally release the letter was assisted by a recent request made to the DEA by Senator Whitehouse from Rhode Island and member of the Judiciary Committee.

Unfortunately, the letter only addresses the use of verbal orders during emergency situation that involve Schedule II medications. The letter does not address the primary issues brought to the DEA’s attention related to the need for timely release of non-emergency controlled substances to ensure that patients receive needed medication and the need to recognize the long term care nurse as the agent of the practitioner. Under a new interpretation of the Controlled Substances Act, the DEA requires the long term care pharmacy to have a complete and valid prescription from the physician before releasing the controlled substances to the nursing facility. The pharmacy can no longer release the controlled substance based on a telephone/chart order received by the nurses and called into the pharmacy.

INTERACT II – Program to Help Reduce Avoidable Acute Care Transfers

2009-08-17T05:14:00.000-07:00

INTERACT II – Interventions to Reduce Acute Care Transfers – is a program to improve the identification, evaluation and communication about changes in resident status. The goal of the program is to reduce the frequency of transfers to the acute hospital since transfers are emotionally and physically difficult for elder nursing home residents and often lead to costly complications associated with hospital care.

The first INTERACT project was developed by the Georgia Medical Care Foundation which is the state Medicare Quality Improvement Organization, and supported by the Centers for Medicare and Medicaid Services (CMS). This program continued to develop into INTERACT II and was further aided by a quality improvement grant from the Commonwealth Fund. Today, many nursing homes across the country are using INTERACT II. The current Commonwealth grant project involves 30 nursing homes in the States of Florida, New York and Massachusetts.

The free INTERACT II tools involve communication tools, care paths or clinical tools, and advanced care planning tools. The tools are designed for use by members of the interdisciplinary team to aid them in early identification of resident changes, guide staff through comprehensive assessment associated with resident changes, improve communication around resident changes, and enhance communication with other health care providers. For more information about INTERACT II and to download the tools, go to www.interact.geriu.org. If you have specific questions, contact Alice Bonner, INTERACT co-investigator and staff with the AHCA Massachusetts affiliate. Alice can be reached at abonner@massseniorcare.org.

NCAL Submits Proposal To Update NFPA Fire Safety Standards

2009-08-06T14:04:00.000-07:00

On behalf of NCAL, AHCA/NCAL life safety consultant Thomas Jaeger has submitted proposed changes for the next edition of the National Fire Protection Association (NFPA) Life Safety Code (2012 edition). While ensuring a high level of safety for residents, the changes would reduce the monetary impact on an existing facility whose evacuation capability classification goes from slow to impractical. The changes would only affect existing, large (more than 16 residents) facilities and would only impact states and local government entities that reference the Life Safety Code in their licensure requirements or base their fire safety requirements on the Life Safety Code. A description of the proposed changes can be found at: http://www.ahcancal.org/advocacy/Letters/NCALreport1.pdf.

Due to the continuing increase in acuity of residents living in assisted living communities, many existing facilities that are currently classified as having a slow evacuation capability may have their evacuation capability increased to impractical. Currently if an existing large facility’s classification goes from slow to impractical, the Life Safety Code requires that the newly classified large impractical facilities must comply with the requirements of existing limited care health care facilities. This would result in a significant increase in the fire/life safety requirements. At best, this would result in a large expenditure and at worst the physical plant of the existing building would not be able to comply with the requirements for an existing limited care facility.

As stated above, the current requirements of the Life Safety Code would require an existing large facility to meet the more restrictive requirements for a limited care health care facility, the same chapter that contains the fire safety requirements for existing nursing homes. In many instances, an existing large facility that currently complies with the Life Safety Code for an assisted living facility would not be able to comply with the physical plant requirements for a health care facility. For example, the allowable construction types for an assisted living facility are much more liberal than they are for existing health care facilities. Another example of the differences is that required corridor widths for existing health care facilities are wider than they are for existing assisted living facilities. Changing the construction type of an existing building or widening the corridors would be impractical or very expensive.

The proposed changes are designed to include a second option for an existing large assisted living facility that goes from slow to impractical. The second option would not require the facility to meet the requirements for health care facilities, which is currently the only option in the Life Safety Code. The proposed changes contain a set of new requirements for large impractical facilities in the same chapter of the Life Safety Code that currently contains all the requirements for existing assisted living facilities. The 18 proposed changes basically fall into two categories. The first group of proposals addresses the recognition that the requirements for facilities with an impractical evacuation classification are in the Board and Care Occupancy Chapter (Chapter 33). The second group of proposals addresses additional fire protection/life safety features in large impractical facilities to compensate for the increased acuity and decreased evacuation capabilities of the residents. The proposed changes do not eliminate the current requirements in the Code, but rather make the current requirements one of two options. It is important to maintain the current requirements to comply with limited care facilities as an option for those existing facilities that have already upgraded their facilities to the requirements for limited care facilities.

The NFPA code change process is open to the public and allows anyone to participate including individuals who are not NFPA members. The proposed changes submitted on behalf of NCAL have just started the public process for code changes. The next step is for the NFPA Technical Committee on Board and Care Occupancies (the Committee that handles assisted living facilities) to meet in December 2009. The Technical Committee can accept, reject, or modify any of the 18 NCAL proposals. The Committee can also write its own proposals, called committee proposals. All the actions of the Technical Committee will be published in the Report on Proposals which will be published and posted on the NFPA website (www.nfpa.org) on June 25, 2010. Anybody can then comment on the actions taken by the committee. The comments must be submitted to NFPA by September 3, 2010. The technical committee will again meet to address all the public comments. Just as with proposals, the committee can accept, reject, or modify the comments. The actions of the committee on the comments will be published in the Report on Comments, and this report will be published and posted on NFPA’s website on February 25, 2011. The public still will have one more opportunity for input. If any member of the public or even any member of the committee disagrees with any action of the Technical Committee on either the proposals or comments they can submit in writing a Notice of Intent to Make a Motion that they wish to make a floor motion to amend the committee’s action at the NFPA’s annual meeting in June 2012. It is at the NFPA annual meeting where the membership of NFPA will vote on each proposed floor amendment and also vote on the entire Code.

AHCA/NCAL Voices Concerns about Proposed Changes to Medicaid HCB Waiver Policies

2009-08-06T07:37:00.000-07:00

The American Health Care Association and National Center for Assisted Living (AHCA/NCAL) on Aug. 4 sent comments to the Centers for Medicare & Medicaid Services (CMS) in response to an advanced notice of proposed rulemaking (ANPR) announcing the agency’s intent to publish proposed amendments to the regulations implementing Medicaid home and community-based (HCB) services waivers under Sec. 1915(c) of the Social Security Act. The ANPR, which was published in the June 22, 2009 Federal Register, solicited advance public comments 1) on the merits of providing states with the option to combine or eliminate the existing three permitted waiver targeting groups and 2) on the most effective means to define home and community settings. AHCA/NCAL’s comments to CMS can be found at: www.ahcancal.org/advocacy/Letters/LtrCMS_ANPRMresponse.pdf.

In response to the ANPR, AHCA/NCAL’s main concerns are as follows:

-- Attempts to define what qualifies as a community-based setting may limit beneficiary choice by excluding some types of assisted living providers or homes for people with developmental disabilities (DD) from the Medicaid HCB program;
-- Combining target populations may lead to a loss of access to Medicaid services for beneficiary groups that are less politically powerful than others; and
-- Combining target populations such as persons with mental illness with persons with DD or frail seniors in waivers may increase the risk of inappropriate placement of vulnerable populations, as well as create safety issues.

AHCA/NCAL recommended that CMS should:

-- Continue gathering stakeholder input, including several stakeholder meetings, before defining what qualifies as a community-based setting so as to ensure that there are no negative, inadvertent consequences for Medicaid beneficiaries.
-- Ensure that beneficiaries have choice of the entire spectrum of long term care settings and ensure that attempts to define community-based settings do not limit that choice.
-- Acknowledge that assisted living communities must meet care and regulatory standards under state law that help ensure resident safety and that these standards typically do not apply to beneficiaries receiving services in their own homes.
-- Not use the number of residents in a setting as a factor in determining whether a setting is considered institutional or community-like.
-- Acknowledge that assisted living communities offer residents a wide variety of opportunities for community integration while maximizing independence, privacy, choice, and freedom of action, and respecting the rights and needs of other residents.
-- Continue working with the Center for Excellence in Assisted Living (CEAL) and take into consideration a white paper on what person-centered care means in the assisted living context soon to be published by CEAL.
-- Acknowledge that Medicaid’s failure to pay for room and board in assisted living settings creates a payment gap that makes it difficult to provide private apartments in many states.
-- Not attempt to mandate exact congruency between standards applying to 1915(i) and 1915(c) programs since the levels of care under the two programs are set at different points.
-- Develop safeguards ensuring that politically weaker target groups do not lose access to services and that target groups are not inappropriately mixed in residential settings and thereby exposed to harm, if states are allowed to mix target populations under Medicaid waivers.

AHCA/NCAL has been working with CMS and other stakeholders on these issues over the past several years and last year submitted comments to CMS’ proposed rule implementing the 1915(i) HCB State Plan Services option and again in responding to a CMS’ white paper on these subjects. AHCA/NCAL will keep members apprised of developments concerning these issues. For more information, contact Karl Polzer at kpolzer@ncal.org.

CMS Provides Additional Guidance on How Assisted Living Can Be Included under Money Follows the Person Grants

2009-08-06T07:27:00.000-07:00

The Centers for Medicare & Medicaid Services (CMS) has sent states additional guidance to help clarify the conditions under which community residential settings, including assisted living facilities, may meet the requirements of a “qualified residence” under the Money Follows the Person (MFP) statute. (See: www.ahcancal.org/facility_operations/Federal%20Regulations/MFPGuidanceAHQualifiedResidence.pdf.) Under the $1.75 billion MFP program, which was created by Sec. 6071 of the Deficit Reduction Act of 2005 (DRA), states may receive an enhanced Medicaid federal medical assistance percentage for 12 months for “qualified” home and community-based services for each person transitioned from an institution to the community.

To qualify for the enhanced federal match, a person transitioned under the demonstration must reside in a “qualified residence.” The wording of the DRA left a great deal of uncertainty about whether assisted living communities could be considered “qualified residences” under the program. Some states have included assisted living in their MFP programs, but many have not.

The DRA defines a “qualified residence” as (A) a home owned or leased by the individual or the individual’s family member; (B) an apartment with an individual lease, with lockable access and egress, and which includes living, sleeping, bathing, and cooking areas over which the individual or the individual’s family has domain and control; and (C) a residence, in a community-based residential setting, in which no more than four unrelated individuals reside.

NCAL has been urging CMS to include assisted living in the MFP grant program to the fullest extent possible. CMS developed the new guidance after many states expressed an interest in including assisted living in their grant applications.

In the new guidance, CMS identifies seven issues in the MFP Housing Guidance it previously distributed that may limit participation of community residential and assisted living providers in the demonstration. The guidance describes these issues and the corresponding conditions that must be met in order for a community residential provider to participate in the MFP demonstration as a qualified residence. NCAL is evaluating the new guidance and will continue to urge CMS to include assisted living in the MFP program.

For more information, Please contact Karl Polzer at kpolzer@ncal.org.

NPUAP Offers Guidance for Coding DTIs

2009-08-04T10:18:00.001-07:00

The National Pressure Ulcer and Advisory Panel (NPUAP) released guidance for coding suspected deep tissue injuries (DTIs). The guidance was developed to assist clinicians in coding these pressure ulcers since the current Minimum Data Set (MDS) 2.0, created in 1996, does not recognize the category DTI. For years clinicians have struggled with coding DTI. In 2004 with the revision to F-Tag 314, the Centers for Medicare and Medicaid Services (CMS) formally recognized DTIs. However, DTIs will not be formally coded on the MDS until MDS version 3.0 is implemented in 2010.

The NPUAP guidance titled “National Pressure Ulcer Panel (NPUAP) Recommendations for Coding Suspected Deep Tissue Injury on MDS 2.0” identifies the clinical findings and matches them with MDS 2.0 coding and treatment recommendations. According to the NPUAP, the useful guide will help improve pressure ulcer coding and foster agreement between assessors. The guide for DTI coding plus other resources related to prevention and treatment of pressure ulcers can be found at www.npuap.org.

The AHCA Clinical Practice Committee contacted the Centers for Medicare and Medicaid Services (CMS) about the NPUAP recommendation for coding and recommended that CMS consider the impact of the this release on current MDS 2.0 coding and the publicly reported quality measure. In a 2008, the AHCA’s Clinical Practice Committee surveyed clinicians on DTI coding. The findings revealed that coding practices varied greatly among clinicians and facilities across the country. If NPUAP coding instruction is implemented at this time and without specific CMS direction, pressure ulcer coding practices will be inconsistently impacted which will greatly affect the current quality measure. The AHCA committee asked CMS to either release an Resident Assessment Instrument (RAI) Manual update for MDS 2.0 on coding DTIs so that everyone is aware of the change, or generate a release stating that DTI coding will not occur until the implementation on MDS 3.0 in October 2010.

DEA’s New Interpretation of the Controlled Substances Act Does Not Recognize the LTC Nurse as an Agent of the Prescriber

2009-08-04T10:14:00.001-07:00

In recent months, the Drug Enforcement Administration (DEA) has taken enforcement actions against several long term care pharmacies in two states based on their new interpretation of the Controlled Substances Act in which a nurse in a long-term care facility (LTCF) can never be the "agent" of the prescriber. Due this interpretation, pharmacies are being threatened with very large fines for ensuring that patients in long term care and hospice receive their pain medications without delay. The DEA’s interpretation, quoted below, was articulated in an April 25, 2001, Notice and Solicitation of Information, published in the Federal Register on April 25, 2001.

“Generally, residents of LTCFs are visited infrequently by their physicians. Consequently, if a nurse determines that a patient’s medications need to be changed, the nurse contacts the physician who authorizes the change. The nurse subsequently calls the pharmacist to relay the change in the treatment. DEA is often advised that physicians consider contacts from provider pharmacies burdensome when they have already communicated the patient’s medical needs to nursing staff at the LTCF. However, a pharmacist may only fill an order issued by a physician and communicated by the physician or the physician’s agent. Since no legal agency relationship exists between the LTCF nurse and the physician, this widely used system in not in compliance with legal requirements at 66 Fed Reg. 20834 (April 25, 2001).

Instead of the above, DEA counsels: If the pharmacist contacts the physician after speaking with the nurse, all requirements will be satisfied, and the physician will receive only one communication. Although it is common practice for the nurse to communicate a patient’s needs to the physician, it is suggested the nurse contact the provider pharmacy, and the pharmacist then contact the physician. This procedural change would assist the pharmacist in fulfilling the requirement to communicate with the prescriber prior to filling the prescription.

The DEA enforcement actions will have an impact on patient access to pain medications. Due to concerns, a LTC stakeholder group, lead by the American Society of Consultant Pharmacist (ASCP), formed to address the DEA’s interpretation of the law. On April 7, during a meeting with DEA, the agency agreed to issue a "Dear Registrant" letter to ensure that all prescribers and dispensers understands what needs to be done to be compliant. The DEA also stated at this meeting that LTC was not a target for their inspectors.

However, on July 22, 2009, the DEA conducted simultaneous audits in four long-term care pharmacies in two additional states – VA and WI. These States are not in the same DEA region as the previous DEA audits – MI and OH. According to the pharmacies surveyed by the DEA, the Agency conducted lengthy interviews with pharmacy technicians and froze the pharmacy’s ability to release Schedule II drugs during the Agency’s visit. The DEA also reviewed records and processes in several nursing facilities served by the LTC pharmacies. During the DEA visits, agents conducted reviews and sought documentation for the prescribing and dispensing of Schedule III-V controlled drugs and emergency-kit usage in addition to Schedule II prescription and controlled substance required records. It is no yet known if any citations/penalties will resulted from the recent DEA visits.

Unfortunately and although the DEA agreed to release a "Dear Registrant" letter, no letter has been yet issued. The provider taskforce continues to work with DEA to bring about the immediate release of the letter and resolution to the issues.

ARRA Funds Available From HRSA to Expand Health Training

2009-08-03T13:18:00.000-07:00

In July, U.S. Department of Health & Human Services’ (HHS) Secretary, Kathleen Sebelius, announced the availability of $200 million to support grants, loans, loan repayment and scholarships to expand the training of health care professionals. The funds are expected to train approximately 8,000 students and credentialed health professionals by the end of fiscal year 2010. These funds are part of the $500 million allotted to HHS’ Health Resources & Services Administration (HRSA), to address workforce shortages under the American Recovery and Reinvestment Act (ARRA). To view the program areas where the $200 million will be directed, please click here. In addition, HRSA received $2 billion through ARRA to expand health care services to low-income and uninsured individuals through its health center program.

CMS Releases HIPAA Compliance Review Analysis/Summary for 2008

2009-08-03T13:17:00.000-07:00

In 2008, CMS was tasked by HHS’ Office of Civil Rights to review covered entities (CEs), including long term care providers, compliance with the Security Standards for the Protection of Electronic Protected Health Information (ePHI). The report outlines potential violations and offers solutions. CMS also refers providers to already published National Institute of Standards and Technology (NIST) and CMS guidelines. The report notes problems in all of the identified areas and lists numerous recommendations. Key CMS findings are that most providers do not perform risk assessments; do not have risk assessment process in place; and, do not address potential areas of security risk. In order to ensure compliance with the Security Rule, CMS suggests that providers should develop and formally document a policy requiring the completion of periodic risk assessment covering all systems and applications that store, process, or transmit ePHI every three years or whenever there is a significant change in the environment.

Obama Announces More Community-College Graduates By 2020

2009-08-03T13:16:00.000-07:00

In July, President Obama unveiled the American Graduation Initiative, a 10-year, $12 billion plan to invest in community colleges with a goal of 5 million additional community-college graduates by 2020 . The initiative focuses on four areas designed to give community colleges the resources necessary to modernize and assist students struggling. This is good news for the long term care profession, which hires licensed professional nurses (LPNs) from the community college setting, and expects significant job growth due to the large expected increases in the over-65 population.

New Grant Opportunities On Employment Training

2009-08-03T13:15:00.000-07:00

On Tuesday, July 21, 2009, the Employment and Training Administration (ETA) published a Notice of Availability of Funds and Solicitation for Grant Applications for Health Care and Other High Growth and Emerging Industries. These grants seek to promote economic recovery by supporting the training needs of workers and employers in health care and high growth and emerging industries, and to attract other training and placement into new employment individuals affected by the recession. ETA is accepting proposals from public or nonprofit entities through October 5, 2009. ETA is targeting the health care industry with particular focus on nursing, allied health, long term care and health information technology. To obtain more detailed information about the grant solicitation, view ETA’s press release or the DOL Health Care Grants Fact Sheet. To obtain a copy of the grant solicitation, click here.

CMS Medicaid Integrity Provider Audit Open Door Forum

2009-08-03T13:13:00.001-07:00

CMS recently held a special open door forum to discuss its Medicaid Integrity Program (MIP), which was created to review provider actions to determine whether fraud, waste or abuse occurred or may have occurred; audit provider claims; identify overpayments; and educate state or local employees involved in Medicaid administration, providers, managed care entities, beneficiaries and others with respect to payment integrity and quality of care.
CMS has entered into contracts with Medicaid Integrity Contractors (MICs) to perform each of these four functions. For more information, please click here. To hear an audio recording and transcript of the MIP Open Door Forum, please click here. The recording can be downloaded for 30 days on July 24, 2009. To obtain a MIP Provider Audit Fact Sheet, click here.

2009-08-03T11:29:00.000-07:00

OSHA is Seeking Proposals for Safety and Health Training Grants

2009-06-15T13:57:00.000-07:00

The Occupational Safety and Health Administration (OSHA) is accepting proposals for nearly $7 million in new grants to nonprofit, community and faith-based organizations for employee safety and health training under the Susan Harwood Training Grants program. Grants focus on 24 training areas, including emergency preparedness and response and the OSHA recordkeeping process.

The applications are due by July 24, 2009. For more information, go to http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=18011.

SST 2009 Update

2009-06-15T13:37:00.000-07:00

AHCA recently announced that for the OSHA site specific targeting (SST) inspections, OSHA will target for inspection and place on the primary inspection list only the highest 50% rated long term care facilities (standard industrial classification codes 8051, 8052, and 8059) with a DART rate of 11.0, or a DART rate below 11.0 but a DAFWII rate of above 9.0.

We have now confirmed that once OSHA arrives in the facility, if, after recalculation of rates the DART rate is above 4.6 and the DAFWII rate is above 2.6, OSHA will proceed with a comprehensive inspection. However, if the recalculated DART rate is below 4.6 and the DAFWII rate is below 2.6, the inspection will only be a record review.

As in previous years:

· Establishments may be deferred from the SST inspection for 90 days if they requested an initial full-service OSHA consultation visit from the OSHA consultation program and the state consultation program has scheduled that visit.

· Establishments that participate in an OSHA strategic partnership may have their SST inspection deferred for up to six months.

· Employers that have been approved as a participant in the Voluntary Protection Program (VPP) or are in the Safety and Health Achievement Recognition Program (SHARP) are deleted from the list.

· Inspection scope protocols for residential care facilities, such as intermediate care facilities for mental retardation (ICFs/MR), group homes and assisted living facilities include: requiring OSHA inspection of greenhouses, classrooms, work shops, etc. that are on-site at facilities, but not inspecting group home clients’ living quarters or the separate, individual homes of clients who receive in-home services from group home staff.

New this year:

· Establishments in the process of applying for Voluntary Protection Program (VPP) can be removed from any programmed inspection list for up to 75 days prior to commencement of the scheduled VPP on-site review. The workplace will be removed from any programmed inspection list for the duration of VPP participation.

· Establishments that received a comprehensive safety inspections, or qualified for a “records only” inspection (or establishments in SIC code 805 that received an inspection that focused on ergonomic stressors relating to patient handling; exposure to blood and other potentially infections material; exposure to TB; and slips, trips, and falls) within the last 36 months of the creation of the current inspection cycle, will be deleted from the inspection list. This is increased from the previous 24 month time frame.

For more information, see the directive on OSHA’s web-site at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02_08-07.pdf.

VA Update

2009-06-09T11:29:00.001-07:00

As AHCA has announced, some nursing facilities with veterans affairs (VA) contracts are receiving information technology (IT) security addenda to their contracts which require compliance with the VA Acquisition Regulation (VAAR) clause 852.273-75. AHCA is advocating to VA that our members not be subject to the requirements in this clause, which include compliance with the Federal Information Security Management Act (FISMA). We have been told that an announcement from VA about this is imminent.

AHCA is also hearing from members that few VA Medical Centers (VAMCs) are willing to use the new VA/NF agreement that we announced late last year. VA’s General Counsel now states that unless a VAMC is preauthorized to use an agreement, it must use a contract to place veterans in civilian NFs. Even if the VAMC does use the new agreement, the new 10 VA RUGs system will not be used; VA’s 8 RUGs system will be used until, and if, the agreement is required nationwide as administering two different reimbursement systems is infeasible for VA.

AHCA has been told that a proposed rule about the new agreement has been drafted and will be released for public comment this summer. AHCA will notify members when this rule is released and will submit comments to VA. For more information, contact Melissa Temkin.

VA Update

2009-06-09T11:29:00.000-07:00

OSHA Sends Over 13,500 Letters to Employers with High Injury Rates, Offers Assistance

2009-06-09T07:48:00.000-07:00

The Occupational Safety and Health Administration (OSHA) announced that over 13,500 employers have received notification letters that injury and illness rates at their worksites are higher than average and that assistance is available to help fix safety and health standards. OSHA did not designate worksites earmarked for future OSHA site-specific targeting (SST) inspections; an announcement of worksites to be inspected will be made later this year. Also, the worksites notified are establishments in states covered by federal OSHA; the list does not include employers in the 21 states and Puerto Rico that operate OSHA-approved state plans covering the private sector.

Worksites were identified by OSHA through employer-reported data from a 2008 survey of 80,000 worksites (the survey consisted of data from calendar year 2007). The workplaces identified had 5.0 or more injuries or illnesses resulting in days away from work, restricted work activity, or job transfer (DART) for every 100 full-time workers. The national average during 2007 was 2.1 DART instances for every 100 workers. The survey allows OSHA to place inspection resources where they’re needed most and also helps the agency plan outreach and compliance assistance programs where they’ll be most beneficial. The focus of SSTs is on

Ergonomic stressors relating to resident handling;

Exposure to blood and other potentially infectious materials;

Exposure to tuberculosis; and

Slips, trips and falls.

However, when additional hazards come to the attention of the compliance officer, the scope of the inspection may be expanded to include those hazards. OSHA has not confirmed the days away from work, restricted work activity or job transfer (DART) rate; or days away from work due to injuries or illnesses (DAFWII) rate which will determine which worksites will be on the primary inspection list. When we have that information, we will notify members.

NPUAP Releases Nutrition White Paper

2009-06-09T06:51:00.000-07:00

The National Pressure Ulcer Advisory Panel (NPUAP) has recently released “The Role of Nutrition in Pressure Ulcer Prevention and Treatment: National Pressure Ulcer Advisory Panel White Paper,” authored by Becky Dorner, RD, LD; Mary Ellen Posthauer, RD, CD; David Thomas, MD, CMD, FACP; and other NPUAP members. This document reviews currently available scientific evidence related to nutrition and hydration for pressure ulcer prevention and treatment in adults. In addition, it introduces the nutrition recommendations from the new NPUAP and European Pressure Ulcer Advisory Panel (EPUAP) Guidelines for Pressure Ulcer Treatment. To view the white paper, go to http://www.npuap.org/Nutrition%20White%20Paper%20Website%20Version.pdf

CMS Memo on ARRA One-time Cash Benefit for ICFs/MR

2009-06-09T06:48:00.000-07:00

On May 29, CMS released an S&C memo entitled “Intermediate Care Facilities for the Mentally Retarded (ICF/MR) – The American Recovery and Reinvestment Act of 2009 (Recovery Act) One-time Cash Benefit to ICF/MR Clients.” The memo clarifies that:

· The Recovery Act provides for a one-time cash benefit of $250 to certain eligible individuals who receive a Social Security benefit, Railroad Retirement Pension, Veteran’s Administration disability pension and Supplemental Security Income (SSI).

· Many ICF/MR clients may be eligible for this one-time cash benefit.

· The money is for the client’s personal use and must not be used to pay for facility services.
· Representative Payees are required by law to use this payment for the personal benefit of the client.

· The one-time benefit will be sent separately from the routine Social Security or SSI benefit payment.

· Validation of inappropriate use of these payments by ICF/MR facilities who serve in the role of “payee” should be cited at 42CFR 483.410 (b) Compliance with Federal, State and Local Laws.

For more information, go to http://www.socialsecurity.gov/.

CMS Memo on Food Procurement, Self Determination and Participation

2009-06-09T06:47:00.000-07:00

On May 29, CMS released an S&C memo entitled “Food Procurement at 42 CFR 483.35(i)(1)(2),Tag F 371; and Self Determination and Participation at 42 CFR 483.15, Tag F 242.”
This memorandum clarifies that:

The language at 42 CFR 483.35(i), Tag F 371 “Procure food from sources approved or considered satisfactory by Federal, State or local authorities” is intended solely for the foods procured by the facility. A revision has been made to the interpretive guidelines at F371 to further clarify this intent;
Foods accepted by residents from visitors, family, friends, or other guests are not subject to the regulatory requirement at F 371; and
Residents have the right to choose to accept food from visitors, family, friends, or other guests according to their rights to make choices at §483.15, F 242, Self Determination and Participation.

For questions, the memo provides contact information for Debra Swinton-Spears at CMS.

HHS Releases Semiannual Regulatory Agenda

2009-06-05T08:14:00.000-07:00

In May, HHS released its Semiannual Regulatory Agenda, forecasting the rulemaking activities that the agency expects to undertake in the upcoming months. Under CMS, HHS reviews upcoming rules regarding the prospective payment system and consolidated billing for skilled nursing facilities, home- and community- based services state plan option, and requirements for long-term care facilities and Hospice services, to name a few. For a complete listing of CMS’ upcoming rulemaking activities click here.

HHS Issues Draft Guidance on Securing PHI

2009-06-02T09:28:00.002-07:00

The HHS, Office for Civil Rights (OCR), Office of the National Coordinator for Health Information Technology (ONC) and CMS, have published draft guidance mandated by American Recovery and Reinvestment Act (ARRA), regarding technologies and methodologies to secure health information and prevent harm. The draft guidance provides steps to secure personal health information and establishes the trigger for when entities must notify that patient data has been compromised. This guidance is related to "breach notification" regulations, which will be issued by HHS, and have already been issued by the Federal Trade Commission (FTC) respectively. The HHS regulations will apply to entities covered by HIPAA, including long term care providers and the FTC regulation will apply to vendors of personal health records and certain others not covered by HIPAA.

OIG Senior Medicare Patrol Projects Report

2009-06-02T09:28:00.001-07:00

The OIG has released a report, Performance Data for the Senior Medicare Patrol Projects: May 2009 Performance Report, that concludes that tracking the number of beneficiaries being helped by these projects and the actual savings attributable to this work is extremely difficult. The Senior Medicare Patrol Projects are funded by the Agency on Aging (AoA) through grants that recruit retired professionals to serve as educators/resources in helping beneficiaries to detect and report on waste, fraud and abuse in the Medicare program. At least one project is located in each state, as well as in the District of Columbia, Puerto Rico, Guam and the Virgin Islands. In 2008, 57 projects had a total of 4,685 active volunteers. These volunteers educated beneficiaries in 6,869 group education sessions and held 24,505 one-on-one counseling sessions. The projects also conducted 785,468 media outreach events and 5,742 community outreach educational events. Medicare funds recovered attributable to the projects were $21,068 and total savings to Medicare, Medicaid, beneficiaries and others was $65,735. According to the OIG, it is hard to track the number of beneficiaries who have learned from the Senior Medicare Patrol Projects and to give the volunteers full credit for savings attributable to their work.

EEOC Best Practices to Avoid Discrimination

2009-06-02T09:26:00.000-07:00

In April, the Equal Employment Opportunity Commission (EEOC) issued a technical assistance document on best practices to avoid discrimination against workers with caregiving responsibilities. The document supplements the May 23, 2007, EEOC guidance on how disparate treatment of employees who are caregivers may violate federal anti-discrimination laws. In the guidance, the EEOC provides recommendations for making workplaces more hospitable to employees with caregiving responsibilities, while reducing the employers’ risk of potential violations. Additional information on this topic can be found in a recent Legal Advisor column from Provider magazine: “How To Avoid Staff Discrimination.”

DOJ/HHS Announce New Fraud Prevention Team (HEAT)

2009-06-02T09:24:00.000-07:00

HHS and DOJ are working together to help eliminate fraud. Secretary Kathleen Sebelius (HHS) and Attorney General Eric Holder (DOJ) have just announced the formation of the Health Care Fraud Prevention and Enforcement Action Team (HEAT), which is comprised of “key stakeholders at the highest levels” of the two departments, and has been charged with expanding the agencies’ efforts to combat Medicare fraud by expanding and strengthening existing programs and investing in new resources and technology to prevent fraud and abuse. HEAT’s efforts to address problems of fraud and abuse will include activities to stop those who perpetrate fraud and prevent fraud in the future.

CMS Reprots on Monitoring the LTC Direct Service Workforce

2009-06-02T09:22:00.000-07:00

CMS recently released a report, The Need for Monitoring the Long-Term Care Direct Service Workforce and Recommendations for Data Collection, focusing on the need of state policymakers to recognize the increasingly essential role that paid aides and caregivers play in long term care, and focusing on the workers needs/circumstances as low-wage workers and the unique character of working in home- and community-based service settings. This report proposes that states collect a minimum data set of information on their direct service workforce across long term care settings that includes numbers of direct service workers, stability of workforce, and average compensation of workers.

Obama Moves to End Federal Pre-Emption of State Regulations

2009-06-02T09:20:00.000-07:00

President Obama is pulling back on a past Bush administration policy allowing federal regulations to pre-empt a wide range of state health, safety and environmental laws that limit consumers to sue companies in state courts. According to a White House memorandum to government department heads, the pre-emption of state law should only be undertaken with full consideration of the legitimate prerogatives of the states. The memo also instructs agencies to go back and find Bush-era regulations that contain pre-emption language in the preambles or in the body of the regulations that are not currently justified by law.

New Caring for Our Caregivers Web Site Offers Workforce Resources for Providers

2009-06-02T09:17:00.000-07:00

AHCA/NCAL is pleased to announce the new Caring for our Caregivers webpage, which was first developed by the leadership of NCAL and is now a joint endeavor with AHCA. This Web-based resource is available to assist providers in retaining their caregiving staff. The site links to organizational resources and research that long term care providers may use in setting up better processes and programs to increase staff retention in their communities. There is significant research showing that satisfied and happy staff contributes to the greater quality of life of the residents in our communities and provide a better quality of care.

AHCA Voices Concerns Over New Nursing Assistant Survey

2009-06-02T09:15:00.000-07:00

The Health Resources and Service Administration (HRSA) and the Centers for Disease Control and Prevention (CDC) recently released The National Nursing Assistant Survey: Improving the Evidence Base for Policy Initiatives to Strengthen the Certified Nursing Assistant Workforce, which surveyed approximately 3,000 certified nurse assistants (CNAs) in 2004-05 by phone who work in nursing facilities. According to the results of the survey, about one in three CNAs received some kind of means-tested public assistance and more than half of CNAs incurred at least 1 work-related injury within the past year with almost one quarter unable to work for at least 1 day due to the injury. AHCA/NCAL has serious concerns with study, and drafted a letter to both HRSA and CDC, stating that the conclusions of the survey, particularly the results on CNA injuries and wages, are in direct contradiction with published federal data.

ETA Announces States' Allotments for DOL Training Under AARA

2009-04-22T11:44:00.000-07:00

The U.S. Department of Labor, Employment and Training Administration (ETA) has announced allotments for training and employment services as specified in the American Recovery and Reinvestment Act of 2009 (ARRA) for activities under the Workforce Investment Act (WIA), Wagner-Peyser Act and Reemployment Services. (See http//edocket.access.gpo.gov/2009/pdf/E9-6029.pdf).

According to the announcement, ARRA funds for training and employment services are available for allotment as follows: $1,188,000,000 for youth activities; $495,000,000 for adult services, including supportive services and needs-related services; $1,435,500,000 for dislocated worker training and employment services; and $396,000,000 for Wagner-Peyser Act activities, which are funds allotted to each state to administer a labor exchange program responding to the needs of the state's employers and workers through a system of local employment services offices that are part of the One-Stop service delivery system established by the state.

GAO Seeks Help in Fighting Fraud/Abuse.

2009-04-22T11:43:00.000-07:00

As billions of dollars are distributed under the ARRA, the U.S. Government Accountability Office (GAO) is urging private citizens, government workers, contractors, and others to report waste, fraud, abuse or mismanagement of those funds to FraudNet. FraudNet is an email, phone and fax hotline that processes allegations about federal agencies and federally funded programs, including Medicare and Medicaid programs. The FraudNet call in number is 800-424-5454; fax is 202-512-3085; and the address for written communication is GAO FraudNet 441 G Street, NW, Mail Stop 4T21, Washington, DC, 20548. For more information on FraudNet go to http://www.gao.gov/fraudnet/fraudnet.htm.

Congress Approves Digital TV Transition Delay

2009-04-22T07:07:00.002-07:00

Consumers receiving free, over-the-air television on analog televisions originally needed to act before February 17, 2009 to ensure their televisions continue to work when full power television stations go all-digital, but that date has changed! President Obama signed a measure to delay the transition to digital television by four months (or until June 17, 2009) amid concerns that the nation was unprepared for the change.

Obama Issues FOIA Executive Order

2009-04-22T07:07:00.001-07:00

President Obama recently signed a Freedom of Information Act (FOIA) Executive Order (EO), designed to improve the federal government's openness and transparency, and "adopt a presumption in favor" of FOIA requests. The EO, issued with a Presidential Memorandum, instructs the Attorney General to devise new guidelines to ensure the implementation of governmental transparency. For a copy of the EO go to http://www.whitehouse.gov/the_press_office/FreedomofInformationAct.

OIG FY 2008 Performance Report

2009-04-22T07:05:00.000-07:00

In January, the U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG), released its 2008 FY Performance Report (See http://www.oig.hhs.gov/publications/docs/budget/FY2008_APR.pdf). According to the report, OIG's contributions to safeguarding federal programs from threats of fraud, waste and abuse included $2.35 billion in HHS receivables paid through civil settlements in litigation initiated by OIG; $1.3 billion in audit recoveries as a result of OIG audit disallowance recommendations; and HHS program managers agreed to implement 85 of OIG's quality and management improvement recommendations.