Kusserow on Compliance: OIG plans 2021 evaluation of nursing home discharge requirements

The HHS Office of Inspector General (OIG) announced it is planning in 2021 to examine the extent to which nursing homes meet CMS requirements for facility-initiated discharges. In its announcement, the OIG noted that a facility-initiated transfer or discharge of a resident from a nursing home can be an unsafe and traumatic experience for the resident and his or her family. In response to this concern, Congress passed the Nursing Home Reform Act of 1987 to protect residents against inappropriate facility-initiated transfer and discharge.

However, data from the National Ombudsman Reporting System show, from 2011 through 2016, cited complaints related to “discharge/eviction” more frequently than any other concern. The OIG also took note of the media reports that highlighted the rise in nursing home evictions and complaints about the discharge process. Past reviews found varying reasons for non-compliant discharges. Some discharges are driven by changes to payment source, but the most frequently reported discharge reason relates to residents that are discharged due to “behavioral, mental, and/or emotional expressions or indications of resident distress.” This includes facilities discharging residents while they are hospitalized related to these behaviors as the basis for discharge. The most common discharge violations included: (1) placement in a questionable/unsafe setting; (2) where a resident remains hospitalized; and (e) where there is a pattern of discharge violations in the facility, among other issues.

The OIG has long monitored the extent to which state long-term care ombudsmen, state survey agencies, and CMS address facility-initiated discharges from nursing homes.  As part of its ongoing work in this area, it will, in 2021, be further examining the extent to which nursing homes meet CMS requirements for facility-initiated discharges. Nursing Home Compliance Officers should take note of this and build a review of this compliance issue in their 2021 workplan.

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

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Copyright © 2020 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: The OIG announces plan to begin auditing the Two-Midnight Rule

The HHS Office of Inspector General (OIG) announced that it will begin auditing short stay claims again, and when appropriate, recommend overpayment collections. The agency’s previous audits identified millions of dollars in overpayments for inpatient claims with short lengths of stay. The OIG found that many have billed stays as inpatient claims when they should have been billed as outpatient claims, which usually results in a lower payment.

To reduce inpatient admission errors, CMS implemented the Two-Midnight Rule in 2014. CMS generally considered it inappropriate to receive payment under the inpatient prospective payment system (IPPS) for stays not expected to span at least two midnights. The only procedures excluded from the rule were newly initiated mechanical ventilation and any procedures appearing on the Inpatient Only List. Revisions were made to the Two-Midnight Rule after its implementation.

The OIG plans to once again audit hospital inpatient claims after the implementation of and revisions to the Two-Midnight Rule. The objective is to determine whether inpatient claims with short lengths of stay were incorrectly billed as inpatient and should have been billed as outpatient or outpatient with observation. The OIG also plans to review policies and procedures for enforcing the Two-Midnight Rule at the administrative level and contractor level. With this new initiative, hospital Compliance Officers should consider focusing on this issue as part of their 2021 work plan.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2020 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OIG reports top unimplemented recommendations

The HHS Office of Inspector General (OIG) Top Unimplemented Recommendations: Solutions to Reduce Fraud, Waste, and Abuse in HHS Programs is an annual OIG publication. These recommendations, if implemented, are ones that would most positively impact HHS programs in terms of cost savings, program effectiveness and efficiency, and public health and safety. All were derived from audits and evaluations issued through December 31, 2019, which predated the COVID-19 public health emergency. Fourteen of the 25 were related to Medicare and Medicaid. The recommendations called for CMS to:

  1. Take actions to ensure that incidents of potential abuse or neglect of Medicare beneficiaries are identified and reported.
  2. Reevaluate the inpatient rehabilitation facility payment system, which could include seeking legislative authority to make any changes necessary to more closely align inpatient rehabilitation facility payment rates and costs.
  3. Seek legislative authority to comprehensively reform the hospital wage index system.
  4. Seek legislative authority to implement least costly alternative policies for Part B drugs under appropriate circumstances.
  5. Provide consumers with additional information about hospices’ performance via Hospice Compare.
  6. Continue to work with the Accredited Standards Committee X12 to ensure that medical device-specific information is included on claim forms and require hospitals to use certain condition codes for reporting device replacement procedures.
  7. Analyze the potential impacts of counting time spent as an outpatient toward the three-night requirement for skilled nursing facility (SNF) services so that beneficiaries receiving similar hospital care have similar access to these services.
  8. Provide targeted oversight of Medicare Advantage organizations (MAOs) that had risk adjusted payments resulting from unlinked chart reviews for beneficiaries who had no service records in the 2016 encounter data.
  9. Require MAOs to submit ordering and referring provider identifiers for applicable records in the encounter data.
  10. Develop and execute a strategy to ensure that Part D does not pay for drugs that should be covered by the Part A hospice benefit.
  11. Ensure that States’ reporting of national Medicaid data is complete, accurate, and timely.
  12. Collaborate with partners to develop strategies for improving rates of follow-up care for children treated for attention deficit hyperactivity disorder (ADHD).
  13. Develop policies and procedures to improve the timeliness of recovering Medicaid overpayments and recover uncollected amounts identified by OIG’s audits.
  14. Identify States that have limited availability of behavioral health services and develop strategies and share information to ensure that Medicaid managed care enrollees have timely access to these services.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2020 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OCR continues enforcement involving HIPAA breaches

 2020 Survey found 60 percent of health care organizations had recent OCR encounters

Lifespan to pay $1,040,000 to Settle Unencrypted Stolen Laptop Breach

Although many agencies have taken the Pandemic into consideration when pursuing enforcement actions, this does not mean they have stopped altogether. Everyone was reminded of this with the announcement that Lifespan Health System Affiliated Covered Entity has agreed to pay $1,040,000 to the HHS Office for Civil Rights (OCR) and to implement a corrective action plan with OCR monitoring for 2 years, in order to settle potential violations of the HIPAA Privacy and Security Rules related to the theft of an unencrypted hospital employee’s laptop containing electronic protected health information affecting 20,431 individuals. OCR’s investigation found:

  • Lack of policies and procedures to encrypt all devices used for work purposes.
  • Failure to encrypt ePHI on laptops
  • Lack of device and media controls
  • Failure to have a business associate agreement in place

Going forward, Lifespan must designate at least one individual to ensure that the organization enters into business associate agreements with its business associates. It must also develop a process for evaluating business relationships and determining which vendors should be considered business associates.

It is noteworthy that the 2020 Healthcare Compliance Benchmark Survey Report found respondents reporting more enforcement encounters with OCR than with the OIG or DOJ.  Nearly 60 percent of respondents reported having encounters with the OCR regarding HIPAA breaches in the last few years. The question is no longer whether there will be a HIPAA Breach problem that draws OCR attention, but when it will occur.  The Survey also found was that three quarters of compliance offices now had responsibility for HIPAA Privacy.  This lays the compliance challenge at the feet of Compliance Officers.

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2020 Strategic Management Services, LLC. Published with permission.