January 2012
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Published On: Dec 16, 2011
Updated On: Feb 22, 2012

At the request of Members of Congress and the public, theWage and Hour Division of the U.S. Department of Labor (DOL) has extended by 14 days the comment period for its proposed rule that would lift theso-called companionship exemption for agency-employed, non-medical home careworkers that provide companionship and other services for individuals who,because of age or infirmity, are unable to care for themselves.  

Comments on the proposed rule must be received on or before March 12, 2012.

Why lift the companionship exemption?

Lifting the companionship exemption would entitle such workers to minimum wage and overtime protections under the Fair Labor Standards Act. The rule would not affect the exempt status of such workers if they are hired directly by the individual or the individual’s family or household.

In addition to lifting the exemption for workers hired by an agency, the rule would revise the definition of “domestic service employment” and “companionship services,” and would clarify the type of activities and duties that may be considered incidental to the provision of companionship services.

LeadingAge is currently analyzing the proposed rule and will be submitting comments.

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Published On: Dec 02, 2011

Roughly at the same time as the National Labor RelationsBoard (NLRB or Board) was voting along party lines to approve a modifiedversion of a controversial proposed rule that would streamline union representation elections, the U.S. House of Representatives on Nov. 30, largely along partylines, passed the Workforce Democracy and Fairness Act (H.R. 3094), which wouldroll back the controversial provisions of the proposed rule and reverse the effect of a ruling earlier this year by the NLRB in the Specialty Healthcare case.  

The NLRB elected to move forward with provisions of theproposed rule that would prevent employers from stalling union election votes withpre-election appeals. It is unclear whether the Board plans to move forward with the more controversial provisions of the rule before the end of the year.  

Those provisions would significantly speed up the holding of union representation elections, thereby affording employers little time to presenttheir case to employees.  

LeadingAge submitted comments to the proposed rule earlier this year and urged the Board to retain existing procedures and timeframes for conducting unionrepresentation elections. 

While the Workforce Democracy and Fairness Act easily passed the Republican-controlled House, 235 to 188, it likely will be blocked from consideration by the Democrat-controlled Senate.  

The Workforce Democracy and Fairness Act would:

  • Providesemployers at least 14 days to prepare their case to present before an NLRB election officer and an opportunity to raise additional concerns throughout thepre-election hearing.
  • Guarantee that no union election would be held in less than 35 days.  
  • Reinstate the traditional standard for determining which employees will vote in the union election, restoring a standard that was developed through years of careful consideration and Congressional guidance, thereby eliminating the possibility of so called "micro-units."  

You can protect workers' privacy by empowering workers to choose the type of personal contact information that is provided to the union.

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Published On: Dec 08, 2011

On Dec. 2, the Centers for Medicare and Medicaid Services (CMS) issued a new survey and certification letter updating the guidance to state agencies on the development and implementation of the Independent Informal Dispute Resolution (IIDR). 

The IDDR, applicable to all standard and complaint surveys begun on or after Jan. 1, 2012, must be offered to nursing homes when a civil money penalty (CMP) is imposed and the funds are subject to collection and placement in an escrow account. Revisit surveys conducted on or after January 1 that are associated with standard or complaint surveys completed before that date will not be subject to the IIDR process even if a CMP is imposed after January 1. 

The letter, Federal Requirements for the Independent Informal Dispute Resolution (Independent IDR) Process for Nursing Homes – Interim Advance Guidance, replaces the previous CMS letter of Oct. 14, and further clarifies the applicability and Key Elements of the IDDR process.  

CMS provides the interim advanced guidance to be included in the State Operations Manual (SOM) regarding the Federal requirements for the IIDR.

What's in the Letter

  • Section 611 of the Patient Protection and Affordable Care Act (ACA) of 2010 provides facilities with the opportunity for an IIDR when a CMP is imposed and the funds are subject to being collected and placed in an escrow account, i.e., the IIDR “…must be offered to nursing homes for deficiencies that lead to the imposition of a civil money penalty (CMP) and for which notice has been provided to the nursing home that the CMP will be collected and placed in escrow.”
  • The Federal requirements for IIDR will apply to all standard and/or complaint surveys begun on or after January 1, 2012 that initiate an enforcement action for which a civil money penalty (CMP) is imposed and is subject to being placed in escrow.
    • Any revisit survey conducted on or after January 1, 2012, that is associated with standard or complaint surveys completed before January 1, 2012 will not be subject to the IIDR process even if a CMP is imposed after January 1, 2012.
  • The letter includes interim advanced guidance to be included in the State Operations Manual (SOM) regarding the Federal requirements for the IIDR.
  • States may not charge facilities for the IIDR. Costs incurred by State Agencies (SAs) for conducting IIDRs are eligible for federal funding using existing/standard cost allocation principles.  In situations where the IIDR process is not required, but is provided by the State directly at its option, the State may choose to charge a facility a user fee for those processes.

Advanced SOM Guidance - 7313. 1 – 7213.11 

  • A SA does not need to create any new or additional processes for IIDR if its existing process meets the requirements at 42 CFR 488.331 and 488.431 and described throughout §7213.
  • An opportunity for IIDR must be provided within 30 calendar days of the notice of imposition of a CMP that is subject to collection and placement in escrow.
  • IDDRs will –
    • Be completed within 60 calendar days of a facility’s request, if requested timely.
    • Generate a written record prior to the collection of the penalty;
    • Include notification to an involved resident or resident representative, as well as the State’s long term care ombudsman, to provide opportunity for written comment;
    • ‘Be approved by CMS and conducted by the State or an entity approved by the State and CMS, or by CMS or its agent in the case of surveys conducted only by Federal surveyors where the State IIDR process is not used, and which has no conflict of interest, such as:
      • A component of an umbrella State Agency provided the component is organizationally separate from the SA, or
      • An independent entity with a specific understanding of Medicare and Medicaid program requirements selected by the State and approved by CMS, and,
      • Not include survey findings that have already been the subject of an IDR for the particular deficiency citations at issue in the IIDR, unless the IDR was completed prior to the imposition of the CMP.
  • The IIDR, as established by the SA and approved by CMS must be in writing and available for review upon request. If an IIDR entity provides services in multiple States and/or CMS Regions, each State and its CMS Regional Office (RO) must approve the process and procedures.
  • Each SA must submit its written process and procedures, including subsequent changes, to the  CMS RO for review and prior approval.
  • Beginning January 1, 2012, CMS may collect and place imposed CMPs in an escrow account on whichever of the following occurs first:
    • The date the IIDR process is completed, or
    • 90 calendar days after the date of the notice of imposition of the CMP.
  • The IIDR is conducted upon the facility’s request, i.e., within 10 calendar days of receipt of the offer.
  • To phase in the CMP collection and escrow provisions, CMS initially intends to collect and escrow ‘…only those penalties imposed as a result of the most serious deficiencies.” Beginning January 1, 2012, and until further notice, only CMPs imposed for a deficiency or deficiencies cited for actual harm or immediate jeopardy (i.e., level of G or above) will be subject to the CMP collection and escrow provisions and IIDR.
    • For deficiencies less than G (i.e., D, E, and F), CMPs imposed will continue to be collected under the current IDR process without a requirement for IIDR.
  • A facility may request IIDR for each survey that cites deficiencies at G or above for which a CMP has been imposed and will be collected and placed in escrow. However, the facility cannot raise questions or issues regarding a previous survey.
  • The IIDR process does not delay the imposition of any remedies, including a CMP.
  • A facility may dispute the factual basis of the cited deficiencies for which it requested IIDR, but may not challenge other aspects, such as:
    • Scope or severity, with the exception substandard quality of care or immediate jeopardy;
    • Remedy(ies) imposed;
    • Alleged failure of the survey team to comply with a requirement of the survey process;
    • Alleged inconsistency of the survey team in citing deficiencies among other facilities;
    • Alleged inadequacy or inaccuracy of the IDR or IIDR process.
  • While States have discretion to limit participation by attorneys or other parties, notice to facilities should indicate that IIDR constitutes an informal administrative process that in no way is to be construed as a formal evidentiary hearing.
  • The IIDR process provides recommendations to the State and CMS and are not subject to appeal.
  • The documents and written report created by the IIDR entity, the State and CMS, other than the final decision, are pre-decisional and deliberative, and are therefore protected from disclosure under the deliberative process privilege.
  • At a minimum, IIDR must provide the following:
  • Opportunity for IIDR within 30 calendar days of CMS’s notice of imposition of a CMP that will be collected and placed in an escrow account. The CMS RO will communicate the offer in its initial Notice of Imposition of a Penalty letter to a facility.
    • The notice will provide SA contact information, including the person, agency, or office the facility must contact to request IIDR.
    • The Notice of Imposition of a Penalty letter must be sent to the facility by certified mail return receipt requested and may also be sent by e-mail and/or fax. The Statement of Deficiencies (Form CMS-2567) may be included. A copy will also be sent to the SA.
  • Upon a facility’s timely request, the SA or IIDR entity will provide the following information:
    • Information on the IIDR process including where, when and how the process may be accomplished, e.g., by telephone, in writing, or a face-to-face meeting, and
    • Contact information, including the name, address, phone number and e-mail of the person(s) who will conduct the IIDR, if known.
  • As with the current IDR process, the Independent IDR process will be available to a facility at no charge.
    • Collected CMP funds may not be used to cover State expenses for IDR or IIDR. A portion of collected CMP funds may be used for activities that protect or improve quality of care for residents.
  • The facility must request IIDR, in writing, within 10 calendar days of receipt of the offer. Requests must include copies of any documents or other information, redacted to protect resident confidentiality, on which it relies in disputing the survey findings.  
  • IIDR must be completed within 60 days of the facility’s request. However, failure to comply with the IIDR process does not invalidate any deficiencies or remedies imposed.
  • The IIDR process is completed no later than 60 calendar days from receipt of the request. IIDR is considered completed if a facility does not timely request or chooses not to do so, or when a final decision has been made, a written record generated, AND the SA has sent the facility written notice of the final decision.
  • Once a facility requests IIDR, the SA must notify the involved resident or resident representative, and long term care ombudsman of their opportunity to submit written comment.
  • At a minimum, the notification must include:
    • A brief description of the noncompliance and reference to the survey date;
    • Information on when, where, and how comments must be submitted;
    • A designated contact person to answer questions/concerns;
    • Contact information for the State’s long term care Ombudsman.
  • The IIDR entity must generate a written record no later than 10 calendar days of completing its review.
  • The written record shall include:
    • A list of each disputed deficiency or survey finding;
    • A summary of the IIDR recommendation for each deficiency or finding and the rationale;
    • Documents submitted by the facility;
    • Any comments submitted.
  • Upon receipt of the IIDR written record, the SA will review the recommendation(s) and:
    • If the SA agrees and no changes will be made to the disputed survey findings, the SA will send written notification of the final decision to the facility within 10 calendar days from receipt of the written record.
    • If the SA disagrees with one or more of the recommendations, the complete written record will be sent to the CMS RO for review and final decision.
    • No later than 10 calendar days, the CMS RO will provide written notification to the SA of the final decision. The SA will send written notification of the final decision to the facility within 10 calendar days from receipt of the final decision.
  • If the SA agrees with the recommendation(s) or has received a final decision from the CMS RO and changes will need to be made, the SA will provide written notification of the results and final decision to the facility within 10 calendar days from receipt of the written record and will:
    • Change deficiency(ies) citation content findings, as recommended.
    • Adjust the scope and severity assessment for deficiencies, if warranted by CMS policy;
    • Annotate deficiency(ies) citations as “deleted as recommended.”
    • A SA manager or supervisor will sign and date the revised CMS Form-2567.
    • The SA will promptly recommend to CMS that any enforcement action(s) imposed solely because of deleted or altered deficiency citations be reviewed, changed or rescinded.
  • Any Form CMS-2567 and/or plan of correction that is revised as a result of IIDR must be disclosed to the State long term care ombudsman.
  • Deficiencies pending IDR or IIDR will not be used to calculate the 5-Star score, posted to Nursing Home Compare, or available for public reporting until the IDR and/or IIDR is fully processed and successfully uploaded to the national repository.
  • To be approved as an IIDR entity:
    • The entity must have an understanding of Medicare and Medicaid program requirements including, but not limited to:

a) 42 CFR Part 483, Subpart B, and Part 488, Subparts A, E and F;

b) The State Operations Manual (SOM), including;

1) Chapter 7, Definitions and §§ 7212, 7213 and 7900;

2) Appendix P, Appendix PP, Appendix Q;

    • Applicable standards of practice, health care management, and/or life safety code knowledge and experience, relevant to the disputed issues.
    • The IDDR entity –
      • Has no financial or other conflict of interest;
      • May be a component of an umbrella State agency provided the component is organizationally separate from the SA;
      • May be an independent entity with an understanding of specific Medicare and Medicaid program requirements selected by the State and approved by CMS.
  • The CMS RO will review and approve all written policies and procedures of the State’s IIDR process.
  • The SA and IIDR entity must enter into a written contract or Memorandum of Understanding (MOU) ensuring compliance with all qualifications and responsibilities set forth and all applicable Federal laws and regulations concerning protected health information and the survey process or the IIDR.
  • An IIDR entity must not disclose to the public any information related to the facility, including the results of the IIDR review.
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Published On: Dec 14, 2011

On Dec. 9, the Centers for Medicare and Medicaid Services (CMS) issued Prudent Action for the FY 2012 Medicare Survey and Certification Budget, a new survey and certification letter anticipating reductions in the agency’s and some state survey and certification budgets for FY2012.

Early indications are that the budget level for Medicare survey and certification will most likely be 10% to 12% less than the level requested by the president. Therefore, CMS believes that “it is prudent to prepare now for a lower FY2012 funding level than previously expected.”  

The letter advises the agency will continue to fulfill its obligations for statutorily-required surveys for nursing homes and home health agencies as a top priority. However, CMS will also work to increase its focus on certain high priority areas, such as poor performing nursing homes and inappropriate use of antipsychotic medications, by effecting greater efficiencies in other areas. 

LeadingAge will respond to CMS on relevant proposals. If you have recommendations for change or amendment, please also copy or forward to me.  

What's in the letter

  • CMS will expand the agency’s efficiency initiatives (see section D below); strictly enforce CMS S&C policies, and reduce or delay certain CMS activities, e.g., slowing down the rate at which states are added to the QIS; extending the timeline for electronic collection of nursing home staffing data.  
  • CMS will continue to fulfill “…statutorily-required surveys (nursing homes and home health agencies) as the top priority for onsite surveys, and will sustain recent survey improvements for other providers (e.g., better surveillance of infection control lapses among provider types).”
  • CMS reiterates its policy that statutorily-required surveys, targeted surveys of poorly-performing providers, and complaint investigations take precedence over initial surveys for Medicare certification. 
    • Priority is given to provider types (e.g., ESRD facilities, nursing homes, and transplant centers) that do not have an option for Medicare deemed status. CMS will continue to consider exceptions to the tiered priorities for initial surveys if there are serious access-to-care issues.  
  • Funding for states will be based on assessment of each state’s “…needed resources, recent performance, and CMS’ analysis of the probability that states will reach performance goals and effectively use funds in light of State budget constraints, personnel decisions regarding furloughs, hiring freezes, etc.”
  • CMS Regional Offices (ROs) will conduct state reviews, to include current prospects for:
    • Filling vacancies, and the extent that furloughs and hiring limits are in force for S&C activities;
    • Training plans and capabilities, particularly for new and existing surveyors to obtain necessary CMS training face-to-face and online;
    • Completing the CMS workload in accordance with CMS priorities. 
  • CMS expects completion of the review process by Dec. 22, with RO recommendations for FY2012 funding levels. CMS will issue revised Medicare S&C funding amounts in 1/12.
  • States are to submit a Medicare budget based on the revised projections by 2/28/12, to include contingency plans for prioritized tasks should final allocations be lower or higher (by 2.5%) than CMS’ revised targets.  

D. Efficiency + Effectiveness Initiatives 

CMS will apply the following principles:

  • Reduce lower value activities in favor of higher value:  Reduce surveyor time spent on lower value areas in favor of more attention to higher value or higher risk areas.
  • Strengthen Incentives and Enforcement:  Strengthen incentives and enforcement for providers to improve quality, and to reduce repetition of problems by the same providers.
  • Use Performance Data to Target Attention to Higher Risk Areas:  Increasingly use survey information, claims data, complaint information, quality indicators, and other data to improve the ability to direct surveyor attention. Provide increased information and transparency to consumers in user-friendly formats to engender more user and provider attention to quality of care and safety.
  • Target Technical Assistance to Poorly-Performing Providers:  Increasingly seek to coordinate with sources of technical assistance (such as the Quality Improvement Organizations (QIOs), ESRD networks, educational institutions, Advancing Excellence, and others) so that technical assistance can be more available to persistently poorly-performing providers.
  • Place a Top Priority on State Onsite Surveys:  Objective, onsite surveys conducted by trained state and federal surveyors (including onsite investigations of serious complaints by the public, beneficiaries and others) remains a top CMS priority.” 

CMS-identified actions for immediate implementation or [near] future consideration:    

  • Immediate Action Examples:

(a)IPPS-Excluded Existing Hospitals:  States will no longer conduct onsite re-verification of IPPS exclusion criteria for a 5% sample. These sampled surveys will be suspended indefinitely.

(b)QIS Expansion:  CMS will extend the timeline for adding new states to the QIS for nursing homes. A separate communication will provide details on the revised schedule.

(c)Government Accountability Organization (GAO) and Office of the Inspector General (OIG) Recommendations: CMS is deferring to FY2013 - FY 2014 many GAO and OIG recommendations scheduled for action in FY2012. A revised schedule will be issued.

  • CMS will continue to advance in FY2012:

(d)ASC Infection Control Worksheets:  As of 1/1/12, SAs will no longer submit a completed ASC infection control worksheet to CMS’ contractor (Acumen).  SAs will continue to use the worksheet to guide assessment of an ASC’s compliance with infection control requirements. CMS will continue to maintain a survey frequency of once every 4 years.

(e) ESRD Surveys:  CMS is expanding the tier III maximum time interval between surveys to once every 4 years, from once every 3.5 years.

(f) Hospice:  CMS is expanding the tier III maximum time interval between surveys to once every 7 years from once every 6.5 years; retaining as a high (tier II) priority the survey of a 5% sample of the lowest-performing providers.

(g) Transplant Centers:  CMS is expanding the tier III maximum survey interval for surveys to once every 5 years from once every 4 years.

(h) Nursing Home Staffing Data: CMS is extending the timeline for design and implementation of a system for quarterly, electronic collection of staffing information in nursing homes as called for in Section 6106 of the Affordable Care Act (ACA). CMS will continue working on design, but not meet the ACA target date, March 23, 2012.

  • Additional Steps under Consideration:  
    • Nursing Homes: CMS is exploring methods to increase the focus on certain high priority areas via greater ‘efficiencies’ in other areas:    
      • Poorly-Performing Nursing Homes (PPFs):Potential expansion of the SFF initiative; coordination with other entities (such as QIOs) to provide increased technical assistance to PPFs serving high proportions of low-income recipients or nursing homes in areas with access-to-care problems; focus CMS validation surveys on facilities rated lower in quality (e.g., the one, two or three-stars); no longer require the LSC survey for the 6th-month SFF survey.
      • Inappropriate Use of Anti-Psychotics: [CMS] is exploring methods to design and implement a program to reduce inappropriate use of medications, particularly anti-psychotics; and include new quality measures for posting on the NH Compare website.
      • Avoidable Falls: A new measure and effort to reduce avoidable falls.
      • Life-Safety Code (LSC) Evidence: Potential reduction in required onsite surveyor time, e.g., increased documentation and attestation by nursing homes to provide evidence of regular maintenance checks, fire drills, emergency preparedness, etc.; distinguishing LSC requirements under: (a) structural, such as 1-hour fire walls and smoke compartments, and (b) maintenance, extending the time period for the engineer’s LSC survey and adding checks to the health portion of the annual survey to address expectations for continuous maintenance.
      • Higher-Performing Facilities: Potential reduction in required survey time for five-star facilities, with the exception that serious complaints or findings would trigger the longer survey.
    • Hospitals: Retaining support of CMS’ Partnership for Patients initiative via focused surveys for infection control, discharge planning, and QAPI; potential alternative methods for targeting complaint and full surveys for accredited hospitals, e.g., surveys based on an assessment of risk, as currently conducted for non-accredited hospitals for condition-level noncompliance; increased communication and coordination with accrediting organizations (AOs), regarding complaint investigation surveys for accredited hospitals.
    • Dialysis Facilities: Potential application of a basic survey to facilities with performance data in the top 33%-50%.
    • National Training Institute: Consideration of methods to maintain momentum for the design and implementation of a national training institute for training surveyors in complaint investigations.

CMS invites comments and suggestions regarding potential methods to increase the efficiency and/or effectiveness of survey and certification functions. Suggestions and comments may be sent to BetterCare@cms.hhs.gov. 

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Published On: Dec 16, 2011

The Centers for Medicare and Medicaid Services (CMS) would like to remind nursing home staff and others under a duty to report a suspicion of a crime in a long-term care facility that CMS guidance from June 2011 directs that such reports be made to at least one law enforcement agency and the state survey agency.

Reports should not be made to the Office of the Secretary of Health and Human Services.

CMS also has stated that further guidance on the requirements of the Elder Justice Act provisions to report suspicion of a crime in a long-term care facility would be forthcoming.

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Published On: Dec 05, 2011

The Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) today released the first of 11 short videos for health care providers on top health care compliance topics. 

"We know that the overwhelming majority of health care providers are working hard to comply with federal laws and regulations," Daniel R. Levinson, HHS inspector general, said in a release. "These videos are designed to guide them in further enhancing their compliance efforts."  

The first video (above) covers OIG exclusion authorities, which are the legal means by which OIG may bar certain individuals and entities from participating as providers in Federal health care programs, including Medicare and Medicaid.

The video also includes a discussion of the effect of exclusion on providers and the types of activities and actions that may lead to exclusion. The 10 remaining videos in the series are expected to be released on a weekly basis over a 3-month period. 

The series is being developed by OIG’s Health Care Fraud Prevention and Enforcement Action Team (HEAT).

Watch Video
Published On: Dec 14, 2011

On Dec. 14, we filed a comment letter regarding a proposed Office of Government Ethics (OGE) rule aimed at reducing the ability of federal agency employees to accept giftsfrom lobbyists and lobbying organizations.  

While the goal of the rulecertainly is laudable, it would have the effect of prohibiting federal agencystaff from attending “widely attended events” (including conferences) sponsoredby “lobbying organizations.”  

How OGE Proposed Rule Would Affect LeadingAge and State Partners

Section 501(c)(3) organizations, such asLeadingAge and many of the state affiliate associations, are not consideredlobbying organizations under the rule; however, Section 501(c)(6) trade associationswould be affected by the rule.    

Some of our stateaffiliate associations are organized under Section 501(c)(6).  

As a result, the rule would have a deleterious effect on their ability to provide their members with education involving government agency staff speakers.

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