1 health care reform town hall update compliance and transparency june 3, 2010

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Health Care Reform Town Hall Update

Compliance and Transparency

June 3, 2010

Speakers

Cory Kallheim, Senior Attorney, AAHSA

Jennifer Hilliard, Public Policy Attorney, AAHSA

Maureen Weaver, Partner, Wiggin and Dana, LLP

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Structure of Today’s Program

I. Nursing Home Transparency and Improvement: Cory Kallheim

II. Elder Justice Act: Jennifer Hilliard

III. Fraud, Waste and Abuse: Maureen Weaver

IV. Questions & Closing Remarks: Cory Kallheim

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Nursing Home Transparency and Improvement

• Patient Protection and Affordable Care Act (PPACA)

• PPACA Sections 6101-6121

• Part I – Improving Transparency of Information

• Part II – Targeting Enforcement

• Part III – Improving Staff Training

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Improving Transparency

• Required Disclosure of Ownership (Sec. 6101)– Nursing homes must keep records on governing

body, officers, directors, members, managing employees and “additional disclosable parties”

– Information available to request by HHS, OIG, State officials, and ombudsman

– Form 990 and other documents can be submitted if they meet the requirements

– Regulations will be issued and opportunity to comment

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• Accountability Requirements for Skilled Nursing Facilities (Sec. 6102)– Corporate Compliance and ethics programs will be

required within 36 months– Secretary of HHS will develop regulations to identify

what needs to be in plans and members will have opportunity to comment

– Sponsors or operators of 5 or more homes will have more formal programs

– Review the 2000 and 2008 OIG Guidance

– Quality Assurance and Performance Improvement

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Improving Transparency• Nursing Home Compare Website -Additional Information

(Sec. 6103)– Staffing data:

• including resident census and hours per resident day; staffing turnover and tenure; comparison of facilities/state/national average; difference in types of staff; relationship between nursing staff and quality of care and explanation of levels based on case mix

– Links to state websites with State survey information– The standardized complaint form when developed– Summary information on number, type, severity and outcome of

substantiated complaints– Number of adjudicated instances of criminal violations by

employees– Special Focus Facility – must be surveyed every 6 months– Consumer rights information page on Nursing Home Compare

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• Reporting of Direct Care Expenditures (Sec. 6104)– Nursing facilities must separately report expenses for wages and

benefits for direct care staff, including RNs, LPNs, CNAs, and other medical and therapy staff

– CMS to modify the cost reports by March 23, 2011 and facilities will start using the revised cost report on March 23, 2012

• Standardized Complaint Form (Sec. 6105)– HHS will develop standardized complaint form for use with State

agencies and ombudsman programs by March 23, 2011– States must establish complaint resolution process

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• Ensuring Staffing Accountability: Submission of Staffing Information Based on Payroll Data in a Uniform Format (Sec. 6106)– Electronically submit direct care staffing information

based on payroll and other data in a standardized form beginning on March 23, 2012

• GAO Study & Report on Five-Star Quality Rating System (Sec. 6107)– Report due to Congress by March 23, 2012

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Targeting Enforcement

• Civil Monetary Penalties (Sec. 6111)– Civil monetary penalties may be reduced 50%; must

be self-reported and corrected within 10 days of imposed CMP

– No reduction:• If facility already had a CMP reduced in preceding year;• For deficiencies resulting in a pattern of harm or widespread

harm;• Immediate jeopardy citations; or• Deficiency resulted in the death of a resident

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Targeting Enforcement

• Notification of Facility Closure (Sec. 6113)– 60 days notice of closure, including transfer and

relocation plans– Subject to CMPs if fail to comply– Effective March 23, 2011

• Demonstration Projects on Culture Change and IT in Nursing Homes (Sec. 6114)

• National Independent Monitor Demonstration Project (Sec. 6112)

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Improving Staff Training

• Dementia and Abuse Prevention Training (sec. 6121)– For Medicare and Medicaid facilities –amends

the nurse aide training requirement to include dementia training and patient abuse prevention training

– Clarifies the definition of nurse aid to include agency and/or contract staff

– Effective date of March 23, 2011

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Elder Justice Provisions

• Subtitle H (Section 6701 et seq.) of Patient Protection and Affordable Care Act (PPACA)– Amends Title XX of the Social Security Act

(42 U.S.C. § 1397 et seq.)

• Reporting requirements– Applicable to long term care facilities

receiving ≥ $10,000 in federal funding

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• Reporting Requirements (cont.)– “Covered Individuals”– “reasonable suspicion” of a crime– Timing

• Serious bodily injury – no later than 2 hours• No serious bodily injury – no later than 24 hours

– Report to:• Secretary of HHS; and• 1 or more law enforcement entities

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• Penalties for Failure to Notify– Standard

• CMP up to $200,000• Possible exclusion from participation

– Enhanced (failure exacerbates harm to victim or results in harm to another individual)

• CMP up $300,000• Possible exclusion from participation

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– Employment of excluded individual• Facility ineligible to receive federal funds under Act

– Extenuating circumstances –financial burdens posed by “underserved populations”

• Geographically isolated populations• Racial and ethnic minority populations• Special needs populations

• Protection against retaliation– CMP up to $250,000; and/or

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– Exclusion from participation for 2 years

• Notice– Conspicuous location– Sign notifying employees of rights

• Other Provisions– Nurse aide registry– Grants– Administrative and forensics framework

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Fraud, Waste and Abuse

• PPACA contains funding authorizations and many significant new substantive provisions to boost program integrity

• PPACA casts a broad net extending Federal and State authority to combat fraud, waste and abuse in the Medicare and Medicaid programs

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• Obligation to Report and Return Overpayments (Sec. 6402)– Any provider, supplier, Medicaid managed care

organization or Medicare Advantage organization that receives an overpayment shall report and return the overpayment by the later of:

• 60 days after the date the overpayment is identified or• the date any corresponding cost report is filed

– Failure to meet this requirement could lead to False Claims Act liability

Effective Date: NOW! March 23, 2010

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• False Claims Act– Authorizes civil action– Can be brought by whistleblower– Prohibits presentment of a false or fraudulent

claim for government payment or approval, or making a false record or statement material to a false or fraudulent claim

– Treble damages– $5,500 - $11,000 penalty per violation

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• “Reverse False Claims”

PPACA builds on prior efforts to broaden the False Claims Act’s reach to include not only false statements made and false claims filed but also failure to refund/or delays in refunding overpayments -- so called “reverse false claims”

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• Paving the Way for Whistleblowers (Sec. 10104(j))– PPACA has weakened the public disclosure bar to

whistleblower actions– A whistleblower asserting a False Claim Act complaint

must be the “original source.” PPACA has broadened the definition of “original source” to include individuals who provide information that is “independent of and materially adds to” any publicly disclosed information

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• Provider Screening

– Enhanced Provider Screening New Providers – March 2011 Current Providers – March 2012

– Expanded Oversight of New Providers

– New Provider Disclosures

– Adjustments for Past Due Obligation

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• Expanded OIG Civil Monetary Penalties (Secs. 6402 and 6408)PPACA expands OIG Civil Monetary Penalties to include the following situations:– Knows of an overpayment and does not report and return it– Fails to grant timely access to OIG for audits, investigations or

other statutory functions– Knowingly makes, or causes to be made, any false statement,

omission, or misrepresentation in any Federal health care program application, bid or contract

– Orders or prescribes an item or service during a period when the person was excluded from a Federal health care program

– Knowingly makes, uses, or causes to be made or used, payment under a Federal health care program

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• Anti-Kickback and Stark– Revisions to Anti-Kickback Statute and Link to

False Claims Act and Health Care Fraud Offense (Secs. 6402, 10606)

– New Stark Self-Referral Disclosure Protocol (Sec. 6409)

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• Other PPACA Provisions Relating to Payment:– Time Limit to Submit Medicare Claims (Sec.

6402) One year from date of service Applies to services furnished on or after January 1,

2010

– RAC Authority Expanded to Medicaid and Medicare Parts C and D (Sec. 6411)

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Questions?

Questions will be addressed by emailing:

[email protected]

If we cannot get to your question we will respond via email or by providing

information on the AAHSA Health Reform Hub located on aahsa.org:

http://www.aahsa.org/healthreformhub.aspx

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Resources

AAHSA Health Reform Hub:

http://www.aahsa.org/HealthReformHub.aspx

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Contact Information

Cory Kallheim

(202) 558-5691

[email protected]

Jennifer Hilliard

(202) 508-9444

[email protected]

Maureen Weaver

(203) 498-4384

[email protected]

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1 health care reform town hall update compliance and transparency june 3, 2010

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