Climate Change. What Does this Mean? The Fault is in Our Stars. Leading Age Regulatory Day April 2, Michele Conroy Rolf Goffman Martin Lang LLP

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1 The Fault is in Our Stars Leading Age Regulatory Day April 2, 2015 Michele Conroy Rolf Goffman Martin Lang LLP Climate Change HHS set explicit goals to shift payments from Volume to Value Affordable Care Act (ACA) promotes Accountable Care Organizations (ACO) and bundling of payments What Does this Mean? Managed Care providers, doctors, hospitals will look for Post-Acute Providers with: Low cost quality metrics Technology (e.g., EMR) Good Outcomes ( hospital readmissions and setbacks) Good Ratings (5 Star) 1

2 CMS 5 Star System SNFs need to understand the 5 Star System Understanding how the points are calculated are key to facility s success What is measured? Health Survey Score Staffing Score Quality Measures (QMs) Rebase of Quality Metrics February 20, New QMs Added Use of anti-psychotics in short-stay residents Continued Use of antipsychotics in long-stay residents 1/3 of all nursing homes lost at least one star in QMs as a result Adjusted Staffing Algorithms Old: 3 for RNs & 3 total staffing = 4 overall. 5 for RNs & 2 total staffing = 4 overall. 2 for RNs & 5 total staffing = 4 overall. Adjusted: NFs must earn 4 stars on either the individual RN only or the staffing category to earn 4 stars in the overall staffing. No less than 3 stars in any dimension If 2 in RN or overall highest facility can get is 3 2

3 Upcoming 5 Star Changes Old Staffing: Calculated utilizing information provided by facility on CMS form 671. No Curve. Score based on hours weighted for acuity. New Staffing: Payroll data to be used. Staff retention and turnover data will be factored in. Upcoming 5 Star Changes Additionally QM Changes: Factoring Antipsychotic Use (February 2015) Factoring re-hospitalizations (by late ) Factoring discharges to the community (by late ) Affect on 5 Star Rating Star Rating for Staffing and QM measures expected to further Strong Health Survey scores will be more important than ever 3

4 Calculating the Health Score Each deficiency assigned a point total Severity Isolated Pattern Widespread Immediate Jeopardy J - 50 pts* (75) K 100 pts* (125) L 150 pts* (175) Actual Harm that is not IJ G 20 pts H 35 pts (40) I 45 pts (50 pts) No actual harm with potential for more than minimal harm that is not IJ No actual harm and potential for no more than minimal harm D 4 pts E 8 pts F 16 pts (20) A 0 pts B 0 pts C 0 pts * An IJ cited at Past Noncompliance receives 20 Pts. Calculating the Health Score Health Inspection Score : includes pts from standard annual and any intervening complaint. Revisits: Fail the first add 50% of the health inspection score Fail the second add 70% of the health inspection score Fail the third add 85 % of the health inspection score Calculating the Health Score 3 Survey Cycles Included in Calculations Most Recent 1/2 of total points from surveys Previous Annual Cycle 1/3 of total points Third Annual Cycle 1/6 total points Graded on Curve Top 10% (lowest score) 5 stars for health score Lowest 20% (highest score) 1 star Each state has cut points to give you an idea where you fall 4

5 Reducing Points During the Survey Argue Compliance Argue scope and severity Argue that something is more appropriate under a different tag Argue Past Noncompliance Past Noncompliance Huge Point Reduction for Immediate Jeopardy Level deficiencies! Deficiency is corrected No plan of correction required No revisit on the citation CMS Past Noncompliance The facility was not in compliance with the specific regulatory requirement(s) (as referenced by the specific F-tag or K-tag) at the time the situation occurred; The noncompliance occurred after the exit date of the last standard (recertification) survey and before the survey (standard, complaint, or revisit) currently being conducted; and There is sufficient evidence that the facility corrected the noncompliance and is in substantial compliance at the time of the current survey for the specific regulatory requirement(s) 5

6 Documenting Past Noncompliance Date of Report: Administrator Name: Facility name: Address: Phone #: Resident Name: Date of Birth: Room #: Diagnosis: Date of event: Was the resident injured? If yes Describe injury: Documenting Past Noncompliance Description of deficient practice: (Why and how did it happen?) Plan of Correction: In-depth analysis of how the deficiency occurred. How facility identified resident affected and residents having potential to be affected by the same deficient practice. Corrective action taken for resident affected. Measures or systemic changes made to ensure that deficient practice will not occur and affect others. How facility monitors its corrective actions to ensure deficient practice is corrected and will not recur. Date of completion of plan of correction. Attach documents for evidence of compliance. Name (printed) and Signature of person completing form. Reducing Survey Points Through IDR Process May be the only opportunity to reduce health survey points What Cannot Be Contested: Scope or Severity (Unless it is an IJ or SQC) Number of days of IJ Past Non-Compliance 6

7 IDR Process 10 days from receipt of 2567 (same as for POC) Must complete the LARA/ED-108 form. Two Options BHCS - LARA conducts the IDR review. (No cost) MPRO Must sign a service agreement that details MPROs cost for review. Independent Informal Dispute Resolution ( IIDR ) IDR right provided by CMS (No Cost) Only available if the facility has been assessed a CMP and there is no IDR pending at the state level Must be submitted within 10 days of receiving the CMS Notice of Imposition letter. Conducted by MPRO Formal Appeal Right of formal appeal only if a remedy has been imposed (e.g., CMP, loss of nurse aide training, etc.) Must appeal within 60 days of receiving CMS Notice letter. Give up right to automatic 35% reduction in fine given to facilities that waive their right to appeal. 7

8 Formal Appeal Facilities rarely if ever win a hearing before an ALJ Goal is to settle with CMS before the actual hearing takes place Request hearing Present settlement proposal to CMS attorney as soon as possible Negotiate elimination of cites; reductions in scope and severity; reduction in days of IJ Deciding Whether to Appeal Multiple IJ citations for 1 set of facts (e.g. IJ under F223, F225 and F226) Numerous deficiencies Noncompliance cited under numerous tags The strength of the argument(s) The amount of the CMP Questions? 8

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