Kusserow on Compliance: Countdown to mandated nursing facility compliance programs

– Only months remain to evidence having an effective compliance program

– Many have a lot to do before state agencies begin their assessments

– Nursing homes lag behind hospitals in compliance program development

Tom Herrmann, J.D., served over 20 years in the OIG’s Office of Counsel and for the past ten years has been a compliance consultant, specializing in nursing home compliance programs. He explained that the Affordable Care Act included a mandate that skilled nursing facilities and nursing homes adopt and implement an effective compliance and ethics program as a condition of participation in the Medicare and Medicaid programs with a November 28, 2018 deadline established in regulations issued by CMS. At that time, State survey agencies will begin assessing nursing facility development and implementation of an effective compliance and ethics program, as a condition for participation in the Medicare and Medicaid programs. Reviews will be conducted under the CMS State Operation Manual “Guidance to Surveyors for Long Term Care Facilities”.  The new mandate parallels the HHS OIG Compliance Program Guidance for Nursing Facilities with its identified seven elements of an effective compliance program. Those that followed the OIG guidance will have little problem in meeting the new mandate, but those who did not, have only months to come into compliance. Based on his experience, he believes that facilities have a lot to do to come into compliance before state agencies begin their assessments, as many have delayed or limited resources for compliance program development.   He suggests that the most cost effective method to begin catching up to have a compliance expert perform a gap analysis to identify elements needed for the compliance program and how be able to evidence program effectiveness. A gap analysis should provide a “road map” and step-by-step plan for bringing a facility into compliance with the mandates. Those that have already implemented their compliance program should consider having an effectiveness evaluation conducted to experts that follow the review protocols that will be used by government auditors.

For more information about meeting the standards of these new mandates, Tom Herrmann may be reached at thermmann@strategicm.com or at (703) 535-1410.

 

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 Google+ or LinkedIn.

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Copyright © 2018 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Meeting long term care compliance program legal mandates

The Patient Protection and Affordable Care Act (ACA) included a mandate that long term care (LTC) skilled nursing facilities (SNFs) and nursing homes adopt and implement an effective compliance and ethics program as a condition of participation in the Medicare and Medicaid programs. Facilities have until November 28, 2019 to meet the compliance program requirements. At that time, state survey agencies will begin assessing facility compliance with implementation of an effective compliance and ethics program following the CMS State Operation Manual “Guidance to Surveyors for Long Term Care Facilities.”  CMS requires annual review of its compliance and ethics program to ensure that modifications are made to reflect changes in laws, regulations, and to reduce violations.

Tom Herrmann, J.D., served over 20 years in the OIG Office of Counsel and for the past ten years has been a compliance consultant, specializing in nursing home compliance programs. He explains that the new mandate parallels the HHS OIG Compliance Program Guidance for Nursing Facilities and those that followed the guidance will have little problem in meeting the new mandate, but those who didn’t have only months to come into compliance. For those organizations with weak programs, he suggests the most cost effective method to begin catching up is to have a compliance expert perform a gap analysis to identify elements needed for the compliance program and how be able to evidence program effectiveness. A gap analysis should provide a “road map” and step-by-step plan for bringing a facility into compliance with the mandates. Those that have already implemented their compliance program should consider having an effectiveness evaluation conducted by experts to verify it will meet mandated standards.

Kash Chopra, J.D., has assisted many smaller LTC organizations in answering the challenge of meeting the mandate challenge by providing Designated Compliance Officers (DCOs) that assume the responsibility of being the Compliance Officer, including the building and managing of the program. The OIG recognizes using DCOs when the wide range of compliance responsibilities become a serious problem for smaller organizations and a full time Compliance Officer is unaffordable. The OIG’s position is that “For those companies that have limited resources, the compliance function could be outsourced to an expert in compliance.”  The OIG further recognize that an outsourced party can provide services on a part time basis.  Using highly experienced experts can lower fixed costs, reduce staff loads, and avoid using someone who is less qualified. Also, most of the work can be done remotely. Using an outside expert part-time, can accomplish more than a lesser experienced full time employee. She advises comparing the cost of hiring a compliance officer against that of a part time expert acting as the DCO.

For more information on this subject, Kash Chopra can be reached at kchopra@strategicm.com or via telephone at (703) 535-1413. Also see https://compliance.com/blog/contracting-compliance-program/

 

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 Google+ or LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2018 Strategic Management Services, LLC. Published with permission.

Highlight on Illinois: Nursing homes may want to prep for on camera exposure

Illinois families with loved ones in skilled nursing facilities will soon have the ability to monitor the care of their loved ones via video or audio recording devices, and nursing homes will want to be sure that what they see is proper care. Legislation was signed into law in late August allowing the use of resident-installed surveillance systems in nursing homes, which supporters say will help to prevent abuse and neglect of nursing home residents. While the law is not intended to cost nursing homes any money, compliance with the law will ensure the elimination of added expense.

Specific provisions. The Authorized Electronic Monitoring in Long-Term Care Facilities Act, effective January 1, 2016, allows nursing home residents to install audio and video surveillance equipment in their rooms. To take advantage of this new law, residents and their roommates must consent to having the recording devices installed. Legal guardians and family members may give the consent for the residents if the residents themselves are deemed incapable of doing so by a physician. Consent for the devices may be withdrawn at any time.

Skilled nursing facilities will not be required to pay for the equipment, as residents will be required to install and run the surveillance equipment at their own expense. It must be positioned in a “conspicuously visible location” within the facility. Any audio visual materials recorded at the nursing home via the surveillance system will be admissible into evidence in administrative, civil, and criminal proceedings. Nursing homes will also be alerted to employees who may be involved in abusive or unacceptable behavior and by using the newly accessible information, would be able to take disciplinary measures.

Requirements. Nursing home residents unable to afford the surveillance equipment may receive funding for its purchase. The Illinois law requires the Illinois Department of Health to establish a $50,000 fund for the purchasing and installing of equipment, which will be dispersed annually via lottery, to residents wishing to have access to the equipment, but whom cannot financially afford it.

Penalties. Nursing homes will want to be sure they do not interfere with the use of the equipment. The law establishes legal penalties for hindering the installation of, or obstructing or destroying electronic monitoring equipment, and contains provisions that include notifying visitors of electronic monitoring and limiting facilities’ access to the recordings. It will be considered a business offense for a nursing home to discriminate or retaliate against a resident or prospective resident for consenting to the electronic monitoring. Nursing homes could be guilty of a petty offense if it interferes with or prevents the installation of an electronic monitoring device by a resident who has provided the facility with the required consent.

History. According to the Illinois Attorney General’s office (AG), the legislation stemmed from complaints received from nursing home residents and families concerned about their relatives’ care. The AG’s office noted that the Illinois Department of Public Health (IDPH) receives more than 21,000 calls annually and responds to approximately 5,000 complaints, the majority of which involve long-term care facilities. The AG further noted that, in 2013, the IDPH found 106 allegations of abuse, neglect, or misappropriation of property against residents by facility staff to be valid.

“Deciding to place a loved one into a nursing facility is extremely difficult, and as Baby Boomers age, more families will be faced with that decision,” said Illinois Attorney General, Lisa Madigan. “This law makes Illinois one of the first states in the nation to give families peace of mind by allowing them to monitor their loved one’s care when they cannot be present.” Illinois will be the fifth state to enact this type of legislation, as other states with similar laws include: New Mexico, Oklahoma, Texas, and Washington.

Highlight on Indiana: Senior health care firm sold for $1.2 billion

Trilogy Health Services LLC, a Louisville-based company operating more than 70 senior-living facilities in Indiana, was sold in an acquisition totaling $1.1 billion to Griffin-American Healthcare REIT III Inc., a closely held real estate investment trust based in Irvine, California. Griffin-American will buy Trilogy’s parent Trilogy Investors LLC in a joint venture with NorthStar Healthcare Income Inc.. The acquisition will result in Griffin-American and Northstar gaining senior assisted-living campuses across the Midwest. Trilogy, founded in 1997, operates 96 senior health and hospitality facilities comprised of more than 10,000 beds in Indiana, Ohio, Michigan and Kentucky, which offer residents assisted living, memory care and nursing services, and has at least a 14 properties in central Indiana, including two in Indianapolis. Most of the facilities were either built or substantially renovated in the past 10 years.

This was the latest large deal in the senior housing asset class, which industry experts expect to increase as the growing need for senior-living facilities continues as Baby Boomers and Gen Xers age. In early 2015 Trilogy Health Services, itself, partnered with Mainstreet, one of the nation’s largest developer of transitional care properties, as co-owner and operator of six senior-living centers in Indiana.

“This is a transformational event for Griffin-American Healthcare REIT III, which will nearly double in size upon completion of the Trilogy acquisition to approximately $2 billion in real estate and real estate-related investments,”  said Jeff Hanson, chairman, CEO and one of the largest stockholders in Griffin-American.

The transaction is subject to third party approvals, customary closing conditions and the satisfaction of other requirements as detailed in the agreement. After the transaction, Griffin-American will own 70 percent of the enlarged venture and will act as its manager. NorthStar will hold the remainder. The joint venture agreement also contains rights and obligations relating to funding the joint venture and distributions, as well as customary forced sale and other liquidity rights.  The sale is expected to close by the end of this year.