Physicians and Long Term Care: Current and New Models of Integration, the Regulatory Framework, and Reimbursement Part I.

Transcription

1 Physicians and Long Term Care: Current and New Models of Integration, the Regulatory Framework, and Reimbursement Part I. Joanne R. Lax, J.D. Dykema Gossett PLLC Woodward, Suite 300 Bloomfield Hills, MI (w) 248/ (c) 248/ (f) 248/ I. Introduction A. Two-part series: This outline is the first in a two part series discussing the delivery of medical services in a skilled nursing facility ( SNF ). The second paper in the series is authored by James Miles of Miles and Peters, Denver, Colorado. The two papers are intended to be read together for a discussion of the role of physicians in the delivery of medical services in a SNF. B. Scope of Part I: Part I of the paper will address: 1. minimum regulatory requirements for physician services, including the use of non-physician practitioners ( NPPs ) as physician extenders. 2. problems with the minimum regulatory model. 3. some barriers to overcome in creating structures beyond the minimum regulatory model. 4. different models for the delivery of medical services in SNFs that are designed to improve the quality of care and enhance general regulatory compliance. C. Effective date: This paper is current as of January 30, D. Not legal advice: This paper is not intended as legal advice. It is intended as an educational tool for the reader. Readers seeking individual legal advice should consult their individual attorney.

2 II. The minimum regulatory requirements for physician services in a SNF. A. History of current regulation: The current regulatory requirements for medical services in a SNF were developed as a result of the classic Institute of Medicine study in the mid-1980s that prompted Congress to enact the Nursing Home Reform Act in OBRA 87. OBRA 87 ushered in an era of quantum changes in nursing home operations, including enhanced physician involvement in resident care. B. 42 CFR : The basic requirement for physician services is contained in 42 CFR Physician services. A physician must personally approve in writing a recommendation that an individual be admitted to a facility. Each resident must remain under the care of a physician. (a) Physician supervision. The facility must ensure that: (1) The medical care of each resident is supervised by a physician; and (2) Another physician supervises the medical care of residents when their attending physician is unavailable. (b) Physician visits. The physician must: (1) Review the resident's total program of care, including medications and treatments, at each visit required by paragraph (c) of this section; (2) Write, sign, and date progress notes at each visit; and (3) Sign and date all orders with the exception of influenza and pneumococcal polysaccharide vaccines, which may be administered per physician-approved facility policy after an assessment for contraindications. (c) Frequency of physician visits. (1) The resident must be seen by a physician at least once every 30 days for the first 90 days after admission, and at least once every 60 days thereafter. (2) A physician visit is considered timely if it occurs not later than 10 days after the date the visit was required. (3) Except as provided in paragraphs (c)(4) and (f) of this section, all required physician visits must be made by the physician personally. (4) At the option of the physician, required visits in SNFs after the initial visit may alternate between personal visits by the physician and visits by a physician assistant, nurse practitioner, or clinical nurse specialist in accordance with paragraph (e) of this section. 2

3 (d) Availability of physicians for emergency care. The facility must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency. (e) Physician delegation of tasks in SNFs. (1) Except as specified in paragraph (e)(2) of this section, a physician may delegate tasks to a physician assistant, nurse practitioner, or clinical nurse specialist who (i) Meets the applicable definition in of this chapter or, in the case of a clinical nurse specialist, is licensed as such by the State; (ii) Is acting within the scope of practice as defined by State law; and (iii) Is under the supervision of the physician. (2) A physician may not delegate a task when the regulations specify that the physician must perform it personally, or when the delegation is prohibited under State law or by the facility's own policies. (f) Performance of physician tasks in NFs. At the option of the State, any required physician task in a NF (including tasks which the regulations specify must be performed personally by the physician) may also be satisfied when performed by a nurse practitioner, clinical nurse specialist, or physician assistant who is not an employee of the facility but who is working in collaboration with a physician. C. Other sources of regulation: Other requirements for physician services are found in other sections of 42 CFR Part CFR (i): Medical director. (1) The facility must designate a physician to serve as medical director. (2) The medical director is responsible for-- (i) Implementation of resident care policies; and (ii) The coordination of medical care in the facility CFR (o): Quality assessment and assurance. (1) A facility must maintain a quality assessment and assurance committee consisting of-- (i) The director of nursing services; (ii) A physician designated by the facility; and 3

4 (iii) At least 3 other members of the facility's staff CFR (b)(9): (9) The facility must inform each resident of the name, specialty, and way of contacting the physician responsible for his or her care CFR (b) (11): Notification of changes. (i) A facility must immediately inform the resident; consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is-- (A) An accident involving the resident which results in injury and has the potential for requiring physician intervention; (B) A significant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either lifethreatening conditions or clinical complications); (C) A need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or (D) A decision to transfer or discharge the resident from the facility as specified in (a) CFR (d): Free choice. The resident has the right to-- Choose a personal attending physician. a) CMS Interpretive Guidelines for F163 provide additional detail regarding this resident right: b) Interpretive Guidelines (d)(1) The right to choose a personal physician does not mean that the physician must or will serve the resident, or that a resident must designate a personal physician. If a physician of the resident's choosing fails to fulfill a given requirement, such as (l)(1), Unnecessary drugs; (l)(2), 4

5 Antipsychotic drugs; or , frequency of physician visits, the facility will have the right, after informing the resident, to seek alternate physician participation to assure provision of appropriate and adequate care and treatment. A facility may not place barriers in the way of residents choosing their own physicians. For example, if a resident does not have a physician, or if the resident's physician becomes unable or unwilling to continue providing care to the resident, the facility must assist the resident in exercising his or her choice in finding another physician. Before consulting an alternate physician, one mechanism to alleviate a possible problem could involve the facility's utilization of a peer review process for cases which cannot be satisfactorily resolved by discussion between the medical director and the attending physician. Only after a failed attempt to work with the attending physician or mediate differences in delivery of care should the facility request an alternate physician when requested to do so by the resident or when the physician will not adhere to the regulations. If it is a condition for admission to a continuing care retirement center, the requirement for free choice is met if a resident is allowed to choose a personal physician from among those who have practice privileges at the retirement center. A resident in a distinct part of a general acute care hospital can choose his/her own physician, unless the hospital requires that physicians with residents in the distinct part have hospital admitting privileges. If this is so, the resident can choose his/her own physician, but cannot have a physician who does not have hospital admitting privileges. If residents appear to have problems in choosing physicians, determine how the facility makes physician services available to residents. c) See also Section V. of this outline for a DAB decision discussing this right. 5

6 6. 42 CFR (a): Admission orders. At the time each resident is admitted, the facility must have physician orders for the resident's immediate care CFR (k)(2): A comprehensive care plan must be- - (ii) Prepared by an interdisciplinary team, that includes the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff in disciplines as determined by the resident's needs, and, to the extent practicable, the participation of the resident, the resident's family or the resident's legal representative CFR (e): Therapeutic diets. Therapeutic diets must be prescribed by the attending physician CFR (b): Specialized rehabilitative services must be provided under the written order of a physician by qualified personnel CFR (c): Drug regimen review. (1) The drug regimen of each resident must be reviewed at least once a month by a licensed pharmacist. (2) The pharmacist must report any irregularities to the attending physician and the director of nursing, and these reports must be acted upon CFR (j)(2): The facility must-- (i) Provide or obtain laboratory services only when ordered by the attending physician; (ii) Promptly notify the attending physician of the findings CFR (k)(2): The facility must-- (i) Provide or obtain radiology and other diagnostic services only when ordered by the attending physician; (ii) Promptly notify the attending physician of the findings CFR (n)(1): (i) Residents will be transferred from the facility to the hospital, and ensured of timely admission to the hospital when transfer is medically appropriate as determined by the attending physician. 6

7 III. The traditional model of physician services. A. Characteristics: The traditional model of physician services in SNFs is characterized by unrelated individual community physicians serving as attending physicians to their patients who are transferred to a SNF from the hospital or community. 1. Traditional model attending physicians typically have a substantial private office practice that accounts for the bulk of their practice time and revenue. 2. Traditional model attending physicians typically make infrequent personal on-site visits to their SNF patients, typically sufficient only to comply with minimum CMS requirements. They often provide change of condition care by phone or fax, and rely upon emergency room visits to diagnose and treat conditions that appear complex. 3. Traditional model attending physicians frequently operate solo, without support from other physicians serving SNF residents and without the collaborative and educational benefits of an organized medical staff. They are responsible for obtaining coverage for their patients when they are planning to be unavailable, and for notifying the SNF of the names and contact information for their covering colleagues. 4. Traditional model attending physicians are loosely accountable to the facility Medical Director (who may serve as the attending physician for some or all the SNF residents). Often the Medical Director is a part-time employee of or contractor to the SNF. IV. So, what s wrong with the traditional model? A. Physician shortage: In the latter half of the last decade, it became apparent that there is a shortage of physicians with expertise in geriatric issues who desire to work in the nursing home setting. The Institute of Medicine (IOM) characterized this situation as an issue of crisis proportions in light of the expected sharply increasing number of older Americans (described as those over age 65) who will need some form of long-term care. 1 The IOM predicts that the number of older Americans will 1 Institute of Medicine, Retooling America s Health Care Work Force: Building the Health Care Work Force, (2008). 7

8 grow to nearly 20% of total U.S. population by The IOM recommends significant changes in health care education, training, workforce structure, compensation and general respect for the SNF as a professional practice setting in order to accommodate the needs of these older Americans. B. Studies of the shortage: The IOM was not the first nationally recognized organization to express concern about an impending shortage of appropriately trained professionals, especially physicians, to serve the anticipated needs of older Americans. A study commissioned by the Department of Health and Human Services (HHS), Office of Disability, Aging and Long-Term Care Policy (DALTCP) in identified the following work force issues in long-term care: 1. In a 1997 survey completed by the American Medical Association, most physicians reported spending no time in treating nursing home patients (77%) and among physicians who did practice in nursing homes, most reported spending two hours or less per week caring for their nursing home patients. 2. In a survey of physicians who provide nursing home care, 50% indicated that they planned to decrease their involvement in the care of nursing home residents. 3. One study of physician staffing patterns in 353 nursing homes in New York with an average of 167 residents per facility, indicated that 60% of facilities had no daily physician presence; non-staff physicians (physicians from the community who were not employed by the facility) cared for 70% of residents; there were an average of 8.6 attending physicians per facility; and on average, each physician followed 32 residents in each facility. The authors speculated that the 32 resident ratio was primarily attributable to rural facilities where the geographic area may include only one or two facilities and only one or two attending physicians. C. Inadequate physician education: Many experts note that present medical education for physicians does not foster an interest or competency in care for SNF residents. 1. Waning interest in primary care and geriatrics coupled with few credible role models further constrains physician involvement in 2 Cari Levy, S. Palat & A Kramer, Physician Practice Patterns in Nursing Homes, 8, J AM Med Dir Assoc, (2007). 8

9 nursing homes. In a survey of graduating medical residents, fewer than 15% felt very prepared to provide nursing home care Many of the physicians who provide SNF care under the traditional model are family physicians or internists with no specialized training either in nursing home care or in the care of older patients. Levy concludes in Literature Review, that much medical education is insufficient to either adequately train physicians in the care of SNF residents, or to incentivize physicians to select this career path. a) Although SNF-specific physician training may be improving at the current time due to the IOM report Retooling the Health Care Workforce in 2008, the literature reports that some family practice or internal medicine residency programs offer only a short gerontology training period. Fewer require rotations in SNFs or other long-term care facilities where the resident physician would gain proficiency in the special needs of the SNF population. b) Few physicians complete a gerontological fellowship (estimated at 1% of family practice or internal medicine physicians), and even these highly specialized programs often do not focus upon the special needs of the SNF population as compared to older adults in the community. c) Physicians with any residency training are eligible to sit for Board examinations in geriatric care given by the American Board of Medical Examiners. In 2005, only 8,800 physicians (1.2%) possess this certificate. d) Continuing education programs frequently offer only limited coursework in care of the SNF population. D. Increasing resident needs: As the number of qualified physicians interested in serving SNF residents is declining, the needs of that population for expert medical services is increasing. Without dispute, the SNF population is sicker and more frail than in the mid-80s when Congress enacted OBRA 87 and its minimum requirements for physician services that form the parameters of the traditional model. Experts agree that the traditional model is insufficient to provide the level of medical care that these sub-acute patients regularly require. The traditional model was based upon the needs of a facility that primarily cared for elderly individuals with mild to moderate dementia and the ordinary ailments of 3 Paul R. Katz, Jurgis Karuza, Orna Intrator & Vincent Mor, Nursing Home Specialization, 150, Ann. Intern. Med., (2009). 9

10 aging, such as arthritis, high blood pressure, etc. not the acutely ill individuals who increasingly populate SNFs today. 1. The IOM notes that the current and future older Americans are living longer due to advanced technologies, but with chronic health conditions that were previously fatal and which often still produce significant debility or disability. As a result, these older Americans will use a greater volume of health care services than ever before, including long-term care services, for both the medical, ADL, and mental health aspects of coping with chronic illness like congestive heart failure, chronic obstructive pulmonary disease, hypertension, or diabetes Between 1997 and 2000, the percentage of nursing home residents receiving at least nine prescription medications increased from 18% to 27%. 5 More current data indicates that the percentage of residents with polypharmacy has risen to 62.7%. 6 Polypharmacy is indicative of complex comorbidities that can be adversely affected by the various medications used to treat each individual condition. 3. SNFs regularly substitute for the final days of what would otherwise be an acute care stay in a hospital for individuals recovering from surgery or illnesses. MEDPAC and GAO data uniformly demonstrate that hospital stays have become shorter as SNF admissions have increased as a consequence of the DRG base PPS hospital payment system. 4. The nursing home population of the United States stands at 1.6 million and will double by the year Even with declining disability rates and increases in housing options, the lifetime risk for nursing home admission remains high at 46%. Nursing homes have become an integral and unique component of the health care continuum in the United States, in part because they accommodate increasingly frail residents whose hospital stays have been dramatically shortened. This sicker-but-quicker trend has manifested as increasing functional dependence, comorbid conditions, and use of high-tech interventions in both short- and 4 IOM, supra at 1. 5 Levy, supra at 2. 6 Christine J. Gerace Johnson, Dennis L. Stone & Kevin T. Bell, Skilled Nursing Facility Economic Outcomes A Comparison of Two Non-Physician Practitioner Service Models, (white paper), available at 10

11 long-term nursing home residents. A large proportion of deaths overall occur in nursing homes, and expenditures currently exceed $120 billion per year a figure projected to almost double by the year 2015 with Medicaid footing 44% of these costs. Of all Medicare fee-for-service dollars, 7% are spent in nursing homes. 7 E. It just doesn t pay: Economic barriers hinder recruitment and retention of the few highly qualified physicians who have an interest in SNF gerontology. As stated in Gerace Johnson s Skilled Nursing Facility Economic Outcomes - A Comparison of Two Non-Physician Practitioner Service Models: 7 Katz, supra at 3. Nursing facility operators will attest that many of the clinical, regulatory, legal and financial challenges they face are directly related to the fact that it is not economically feasible for many community physicians or their practitioners to come to the facility on an as needed basis. Regularly scheduled visits involving multiple patients, usually once or twice a month are currently the norm. Even at the time of those visits, physicians are still under economic pressure to spend the minimum amount of time required to assess the resident s needs and then return to the office or hospital. Acute changes in condition and problem focused follow-up assessments are usually managed by phone or fax. If the required information regarding a significant change of condition cannot be effectively communicated or if an on-call physician is covering for a facility attending physician, the patient is often sent to the emergency room. Economically speaking, community physicians and their practitioners lose money each time they come to the nursing facility to see only one or two patients. Despite the rationalization of the American Medical Association s (AMA s) Relative Value process, the economic reality is that it is simply not feasible for most physicians to take care of patients in the nursing facility because of economies of scale. Remembering that Medicare does not pay for travel time, any time spent going to and from the facility during the work day is an opportunity cost that must be applied to the equation when determining break even on providing nursing home care. One can assume that it costs a physician at least $200/hour to cover personal salary, staff salary and office overhead. Also one can assume that it takes a minimum of ½ hour to leave the productivity of the office or hospital to 11

12 see patients in the nursing facility and an additional ½ hour to return back to the office or hospital. Thus the physician has incurred an overhead cost of $200 just to get to and from the facility and must make up that cost by generating income while at the facility. For a basic nursing facility visit, the physician will generate approximately $55 in final dollars and it will take a minimum of 10 minutes to provide that service. Running the break even analysis, the physician must see 9 patients before he or she has recouped his or her overhead costs. Few physicians have 9 patients in the nursing facility who require a visit on any given day and few physicians can provide a complete service in only 10 minutes, so it remains economically impractical for a physician to have a nursing facility practice. F. Quality of care concerns: Many experts question whether the traditional model can produce quality care, aside from the unfavorable economics of that model for physicians. Providing care by phone is fraught with multiple risks to the patient, the facility and the physician. The resident is at risk of a misdiagnosis, unnecessary laboratory or diagnostic studies, cross purpose medications being prescribed, an unnecessary ambulance ride, an uncomfortable emergency room visit or even an unnecessary hospitalization. The facility is at risk of paying for unnecessary tests, medications, and ambulance transportation if the patient is covered under Medicare Part A. The nursing facility is also subject to increased risk of regulatory noncompliance issues or litigation because the patient was not directly examined by a licensed medical provider. The physician is also at risk of not fully discerning the acuity, complexity, recent circumstances, co-morbidities, or physical findings required to make a sound medical judgment from the information provided over the phone or fax. 8 G. Residents are dissatisfied: Many resident satisfaction surveys indicate that residents are dissatisfied with the service received in the traditional model. This often translates into complaints to regulators about perceived inadequate physician response to changes in condition and other 8 Id. 12

13 incidents and accidents. Reportedly, such complaints are the tenth most prevalent category of complaint received by State Survey Agencies. H. Not personally satisfying: Physicians who practice in the traditional model state, when surveyed in various studies, that the volume of phone calls from the facility is disruptive of their personal and professional activities. V. Are there legal barriers to change? A. DAB decision: William Penn Care Center v. Health Care Financing Administration, Doc. No. C , (Oct. 21, 1998), (decided by ALJ Steven T. Kessel) The present day significance of the William Penn decision is unclear as a practical matter given the many changes in delivery of physician services in today s SNF marketplace. Nonetheless, it has not been overruled or overturned by the DAB or any federal court. 2. In this case, the DAB Civil Remedies Division sustained HCFA s determination that the facility had violated 42 CFR (d)(1) because the facility did not permit residents to choose their own attending physicians. The DAB concurred in the imposed remedy of a denial of payment for new admissions. 3. HCFA claimed that William Penn hired two physicians to serve all of its residents, and actively and directly excluded any other physicians from serving residents. The facility claimed that it simply instituted policies requiring attending physicians to commit to adhering to the regulatory visitation schedule and to attending 50% of quality assurance meetings as preconditions to serving residents at the facility. ALJ Kessel made no factual finding about HCFA s claimed version of the facts, holding that the facility s own version of its actions in and of itself violated 42 CFR (d)(1). ALJ Kessel stated in the opinion: The evidence in this case establishes that Petitioner imposed barriers against physicians having access to residents at Petitioner's facility in order to provide care to those residents. I accept for purposes of this decision Petitioner's argument that any limitations on 9 HHS Departmental Appeals Board, William Penn Care Center v. Health Care Financing Administration, Docket No. C , (1998), available at 13

14 access that it imposed were intended to assure that its residents received care of the highest quality. Nonetheless, Petitioner's acts had the consequence of denying its residents the right to choose their personal attending physicians. Petitioner admits that it restricted the ability of physicians to see residents in Petitioner's facility and of residents to choose their physicians. According to Petitioner, it permits a physician to have access to its facility only if that physician agrees to visit his or her patients at least once every 30 days. Additionally, according to Petitioner, as a condition for being permitted to treat residents at Petitioner's facility, the physician must attend at least 50 percent of the quality assurance committee meetings that Petitioner holds for its attending physicians. (citations omitted). I do not agree with Petitioner that it has the right by way of controlling the quality of physicians' services to limit its residents' choices of physicians. There is no rule of reason implicit in 42 C.F.R (d)(1). The regulation plainly and simply operates to prohibit a facility from taking any action which interferes with a resident's right to choose his or her own physician. A facility may not curtail that right even if it does so with good intentions. Petitioner argues that HCFA's own interpretive guidelines suggest that the right to choose a physician must be balanced against a facility's obligation to monitor and control the care that a physician provides. It asserts that these interpretive guidelines contain a statement that if a physician of a resident's own choosing fails to fulfill a requirement a facility shall have the right to seek alternate physician participation to assure that the resident is given adequate care and treatment. Petitioner has not provided a citation for this alleged guideline. I cannot verify that what Petitioner cited to is an accurate excerpt from an authoritative HCFA policy statement. Furthermore, the excerpt to which Petitioner cited evidently omits examples which might serve to clarify the alleged guideline. For purposes of this decision, I am assuming that Petitioner has in fact quoted accurately from interpretive guidelines 14

15 published by HCFA. Assuming that to be so, the statement which Petitioner cites does not support its argument that the right of a resident to choose his or her own physician may be restricted by a long-term care facility in the interest of promoting quality medical care. On its face, the statement permits a long-term care facility to find alternative physician care for a resident after it has become apparent that the resident's physician of choice has not discharged a responsibility to a resident. The statement does not suggest that a facility has the authority to prejudge the qualifications of a physician to provide care. Nor does it authorize a facility to establish conditions which a physician must meet before he or she may provide care to a resident. It certainly does not suggest that a facility may erect artificial barriers to physician access, such as requiring that a physician attend a predetermined number of quality assurance committee meetings as a prerequisite to being permitted to treat residents. Moreover, I would not find the alleged interpretive guideline to be a dispositive interpretation of 42 C.F.R (d)(1) even if I were to find that it meant what Petitioner claims it to mean. As I have stated, the meaning of the regulation is plain. A resident has an unconditional right to choose his or her own personal physician. HCFA may not rewrite this regulation or change its meaning with an interpretation. (citation omitted). B. Dealing with William Penn: If the William Penn decision is still viewed as precedential, it would expose SNFs to regulatory citations for implementing many of the innovative physician integration strategies that are discussed in this paper and in Part II of this paper. Facilities need to be mindful of the strictures of the William Penn decision when embarking upon these strategies by: 1. always including a resident opt out of any plan for physician integration, and 2. carefully crafting communications with physicians about any requirements for service at the facility to avoid allegations, real or perceived, that the facility is categorically excluding certain physicians despite resident choice. 15

16 C. Likelihood of problems: The likelihood of a complaint like that analyzed in the William Penn decision is probably diminished in today s reality of physician services in SNFs as increasing numbers of community physicians elect not to follow their patients into a SNF. VI. Alternative practice models A. Something has to change: In response to the sicker and more frail SNF population and the many concerns about the quality, efficacy, economy and successful regulatory compliance involved in the traditional model, researchers and practitioners alike have posited alternative models of delivering medical services in SNFs. B. Better physicians or increased use of non-physician practitioners? A dichotomy of thought exists about whether the decline in physicians who obtain gerontological credentials means that the roles of non-physician practitioners should be enhanced, or whether increased efforts should be undertaken to produce highly trained and specialized physicians. 1. The IOM advocates an expanded role for non-physician practitioners in SNFs to augment what it describes as a declining population of gerontologists Katz, et. Al. argue in Nursing Home Physician Specialists: A Response to the Workforce Crisis in Long-Term Care that physician specialization is the appropriate response. Rather than accepting that disengagement of physicians in nursing home practice is inevitable, we make the case here that quality of care in the nursing home is directly linked to physician practice, and that only by moving toward a nursing home specialist model will the needs of residents with complex post-acute problems, who are burdened by multiple comorbid conditions, chronic illness, and functional limitations, be met. 11 VII. Expanded use of non-physician practitioners ( NPPs ) A. Regulatory roles for NPPs: The functions that NPPs can perform vary depending upon whether they serve residents in a Medicare certified facility or a Medicaid certified facility, and whether they are employed by 10 IOM, supra at Katz, supra at 3. 16

17 the facility or the individual physician. If the facility is dually certified, the stricter Medicare rules apply. B. Medicare facility rules: In a Medicare certified facility, NPPs are limited as follows, per CMS S&C-04-08: The physician may not delegate the initial comprehensive visit in a SNF. The initial comprehensive visit in a SNF is the initial visit during which the physician completes a thorough assessment, develops a plan of care and writes or verifies admitting orders for the resident. Under the regulations at 42 C.F.R (c)(1), the initial comprehensive visit must occur no later than 30 days after admission. 2. Non-physician practitioners may perform other medically necessary visits prior to and after the physician initial comprehensive visit. 3. Once the physician has completed the initial comprehensive visit in the SNF, the physician may then delegate alternate visits to a Physician Assistant (PA), Nurse Practitioner (NP), or Clinical Nurse Specialist (CNS) who is licensed as such by the State and performing within the scope of practice in that State, as required under 42 C.F.R (c)(4). C. Medicaid facility: A NPP is less limited in a Medicaid certified facility: 1. Non-physician practitioners that have a direct relationship with a physician and who are not employed by the facility may perform the initial comprehensive visit, any other required physician visit and other medically necessary visits for a resident of a NF as the State allows. 2. Non-physician practitioners may also perform other medically necessary visits prior to and after the physician initial comprehensive visit. 3. At the option of the State, NPs, PAs, and CNSs who are employees of the facility, while not permitted to perform visits required under the schedule prescribed at 42 CFR (c)(1), are permitted to perform other medically necessary visits and write orders based on these visits. The physician must verify and sign any orders written by non-physician practitioners who are employed by the facility. 12 Memorandum from Thomas E.Hamilton, Director, Survey and Certification Group of Centers for Medicare and Medicaid Services, (Nov. 13, 2003) (referred to as S&C-04-08)., available at 17

18 D. Theoretical and practical information about the use of NPPs in SNFs. 1. Two distinct models of practice for NPs and PAs have been described by the Foundation of the American College of Health Care Administrators in its report of 1989: the role as a physician extender versus the role as a physician expander. If one asserts that PAs and NPs are physician extenders, then this implies they are substitutive in the nursing home setting when there is insufficient physician workforce, time commitment, productivity, or quality. The physician expander may be an employee or independent consultant who will expand medical services through more effective integration of medical, nursing, and rehabilitation professionals. This expander role implies an integrated or collaborative relationship with a physician provider. If there are complementary skills between physicians and PAs or NPs, one could argue that the relationship has the potential to be synergistic and result in improved clinical outcomes. This potential valueadded feature to nursing home medical practice may be derived from the facts that physician expanders cross the traditional boundaries of professional disciplines and provide a unique perspective on care Physician medical directors of nursing homes report a high degree of satisfaction from NP utilization, as perceived by attending physicians, residents, nursing staff, and families. Other studies have shown no significant difference in reported satisfaction from residents or family when care is provided by NPs. A survey of directors of nursing in long-term care facilities has described NPs as fulfilling a complementary role to that of the nursing staff, and report less hospitalization, more prompt responses to identified problems, and more complete documentation as a result of NP presence There does appear to be increased medical attention (defined as number of visits and medical orders) to nursing home residents when primary care is provided by NPs and PAs. In addition, better scores have been reported on some quality indicators, as compared to physicians, for congestive heart failure, hypertension, and new urinary incontinence. Specific process of care measures 13 Caprio, Thomas V., M.D., Physician Practice in the Nursing Home: Collaboration with Nurse Practitioners and Physician Assistants, 14(3) Annals of Long- Term Care: Clinical Care and Aging (2006). 14 Id. 18

19 indicate that NPs may perform better with skin care, decubitus ulcer prevention, incontinence, diabetic foot care, and congestive heart failure assessments, when compared to a physician-only model of care. A variety of other interesting clinical outcomes have been described in the literature with the implementation of mid-level practitioners. One study describes a reduction in medication prescribing and the utilization of laboratory services, as well as a greater proportion of residents being discharged to home when care is coordinated by a NP. There have been mixed results regarding the effect on resident functional status, with most studies showing only minimal influence by NPs on a resident s potential functional decline. There may be significant impact on end-of-life care, as facilities with NPs or PAs on staff are less likely to use feeding tubes in residents with advanced cognitive impairment. In addition, completion rates for Do-Not-Resuscitate and Do-Not- Hospitalize orders may be higher with NP collaboration. This may be related to the provider s greater availability or more frequent communication with residents and families regarding advance directives A national survey shows that facilities that use NPs or PAs are overall less likely to hospitalize residents. One study reported a 26% reduction in hospitalization in less than one year of implementation of a NP and physician collaborative team. While some studies have shown no significant difference between utilization of acute services for NP physician teams compared to physician-only care, there is a greater frequency of visits to residents, which may represent improved access to care. One of the few studies specifically focused on PAs has demonstrated a 38% reduction in annual hospital admissions after the introduction of PAs in the nursing home. 16 E. The Evercare project: A project known as Evercare is one of the most thoroughly studied programs involving the use of NPPs in SNFs. It started in 1987 as a private project and became a Medicare demonstration project in The Evercare model uses NPPs (typically nurse practitioners) in conjunction with a community attending physician under an innovative payment model. 1. Levy describes this project in Literature Review and Synthesis 17 as follows: 15 Id. 16 Id. 17 Levy, supra at 2. 19

20 The Evercare project, employing community physicians and physician extenders in a demonstration program, is an innovative practice model providing for the health care needs of elderly nursing home residents. Evercare is a variant of the Medicare+Choice health maintenance organization (HMO) providing benefits under both Medicare Parts A and B. The goal of the Evercare program is to reduce unnecessary hospitalizations and costs by providing more intensive primary care for residents who experience a clinical decline. Nursing homes operating an Evercare program receive a fixed capitated amount for each long-stay nursing home resident. Evercare employs NPs as physician extenders to work with the residents' primary care physicians. Evercare NPs spend more time than physicians in each nursing home, allowing for more regular resident and family contact, and for the opportunity for formal and informal in-service staff training. Although NPs provide most of the direct primary care to residents, Evercare primary care physicians assume ultimate responsibility for physician services for nursing home residents and must see their residents a minimum of every 30 days for the first 90 days and every 60 days thereafter. Evercare contracts with physicians to accept Evercare patients and be paid by Evercare instead of by Medicare with fee-for-service (FFS) rates at least equivalent to Medicare Part B rates. The Evercare FFS payment model also includes payment to physicians for emergency visits to the nursing home and for the time spent in care planning conferences and family consultations. Evercare programs are currently serving nearly 600,000 individuals nationwide, with 1,500 employees in 15 states. 2. Caprio finds that the Evercare model has shown improved quality in certain spheres. The studies of Evercare sites have confirmed this reduction in hospitalization by nearly 50% when compared to control groups of non-evercare nursing home residents. However, studies on other clinical outcomes have been mixed with Evercareenrolled nursing home residents, including measures of functional status, falls, fractures, depression, behavior, incontinence, and preventive health. At the very least, it appears to demonstrate 20

21 equivalency in these outcomes as compared to non-evercare residents. 18 F. Economic benefits of NPPS: A closed NPP delivery model may produce significant economic benefits to the SNF that utilizes this approach. The Gerace Johnson study compared two models involving NPPs: Group 1: NPPs working full time in one facility (under contract) and in collaboration with the skilled nursing facility s Medical Director. In the study, the NPPs were furnished by Integritas, a private staffing entity. The Integritas medical services model provides client nursing facilities with on-site, full time (weekday) presence of an NPP. Integritas medical practitioners provide comprehensive medical care including: examining the patient upon admission to assure the patient is stable and that appropriate information is available to initiate care, assessing acute changes of condition, ordering appropriate laboratory and diagnostic tests, prescribing medications according to facility formulary guidelines, establishing treatment plans aligned with nursing plans of care, and complying with nationally defined clinical practice guidelines (CPGs) regarding disease management. Each nurse practitioner (NP) had an individual provider number through which third party billing was managed by Integritas. Medically necessary services are reimbursed through Medicare Part B or fee-for-service. Additionally, the nursing facility reimbursed Integritas for quality management support. 2. Group #2: (NPP w/md) practitioners were retained by community physicians, following a large number of residents on the service of their individual collaborating physician(s). The NPPs in Group #2 were either employed directly by a community physician or they 18 Caprio, supra at Gerace Johnson, supra at 6. 21

22 had their own independent practice and collaborated with the attending physician. They did not receive any specific on-going training regarding providing medical services in a skilled nursing facility. 3. The study discovered the following economic points: a) The SNFs utilizing Integritas nurse practitioners experienced a per facility annual Medicare Part A pharmacy cost of $189,428. The nursing facilities in this study who had NPPs utilized by local physicians experienced a cost of $202,321 or $12,893 more per facility per year. b) Both groups managed poly-pharmacy significantly below the national average and both had positive impact on polypharmacy reductions in the year reviewed. The Integritas facilities, however, averaged over 11% better than the NPP with MD facilities. c) The SNFs utilizing Integritas nurse practitioners realized a total annual cost of $51,214 per facility for potentially unnecessary hospitalizations. The dollar value was calculated by multiplying the average length of hospital stay for residents in potentially unnecessary hospitalizations by the SNF s daily rate. The nursing facilities in this study that were utilizing NPPs associated with local physicians experienced a cost of $32,337 per facility in potentially unnecessary hospitalizations. d) The SNFs with the Integritas group produced the greatest positive economic impact by improving the Medicare Part A revenue per facility $317,852 more than the other group. 4. The study authors conclude: In conclusion, the Integritas model of having a full time NPP medically managing the care of the patients greatly benefits not only residents and busy physicians but adds measurably to the bottom line of both the payer sources for facility patients and the skilled nursing facility. Patients benefit from timely, on-site medical assessments and even more appropriate treatment of their complex or chronic conditions. Attending physicians are able to improve the overall level of care for their geriatric patients by receiving better information from a medical practitioner s assessment. Third-party payers benefit from medically necessary services being provided at a high-quality, lower cost 22

23 alternative site of service (the SNF) compared to an emergency room or hospital The authors conclusions are not necessarily supported by the research findings. Although the authors make quality claims in their conclusions, this study does not address quality of care between the two groups, nor between SNFs relying upon NPPs versus those relying upon enhanced physician services. It does not address other variables at the facilities that might account for the economic differences. It is therefore not a conclusive study on the benefits of NPPs or different models of NPP services, but it is suggestive of some correlation between a tightly controlled group of NPPs and enhanced economic performance. G. Problems with the increased NPP model: As is the case with physicianbased service models, workforce problems may create barriers to implementing a NPP based service model. Per Levy 21, the following issues and concerns were voiced by an expert panel assisting with the literature review: 20 Id. 1. The training and experience of the available NPs may limit the ability to implement physician extender models. The amount of geriatric and nursing home care taught during the training of NPs depends largely on the interest of the faculty in geriatrics and nursing home care. 2. The scope of the training programs may influence the decision to use such practitioners. One participant, who routinely hires NPs, noted that NPs without geriatric training are far less prepared to practice in nursing homes than those who received such specialized training. Many of the physician extenders hired for his practice require specific education in the care of older adults before they can care independently for nursing home residents. For example, according to the expert member, NP and GNP students receive minimal information on falls and pressure ulcers, two of the most common geriatric problems in nursing homes. 3. Another barrier identified for GNPs is the availability of faculty with academic credentials to train GNPs and infuse more NPs with geriatric training into the medical community. 4. The existing labor supply of physician extenders may also constrain their use and their cost-effectiveness. For example, the Evercare 21 Levy, supra at 2. 23

24 demonstration project was unable to find enough GNPs and was forced instead to employ general NPs. A New York State demonstration project that required nursing homes to hire NPs found that the increased demand for NPs and PAs drove salaries for physician extenders to nearly double the national average in some areas of the state. 5. The cost of utilizing NPs may be borne by third-party payers, such as Medicare, or shared with the NPs' employers. Employing an NP requires a large volume of nursing home visits to be cost effective. It is estimated that to support an NP's salary entirely through Medicare reimbursable services, an NP would need to perform an average of 16 visits per day at the code (the most common subsequent visit coding level). VIII. Enhanced M.D./D.O. services A. Better physician services: In contrast to proponents of enhanced use of NPPs as the way to overcome a dwindling supply of qualified physicians to serve SNF residents, some experts and researchers suggest that the answer is enhancing the quality and volume of physician services themselves. 1. Some conclude that effective change can occur simply through organization of the existing cadre of community physicians into a formal Medical Staff, akin to the structure typically found in hospitals. Frequently, this approach is combined with a strengthened and enlarged role for the SNF Medical Director. 2. Others contend that the physicians themselves must improve their geriatric care skills, and dedication to SNF practice. Proponents of this theory advocate creation of a nursing home specialization for physicians, currently being called SNFists or SNFologists. B. State regulation of physician SNF services: A few states have enacted statutes to regulate the role and performance of physicians in SNFs. 1. Maryland has enacted specific requirements regarding medical directors and attending physicians as follows: Md Medical directors In general (a)(1) Each nursing home shall designate a physician to serve as medical director. (2) The medical director is responsible for monitoring physician services at the nursing home. (3) The medical director shall report 24