1. LeadingAge Legal Update: Nursing Home Compliance Office of the Inspector General October 21, 2014 Carrie S. Gilbert Dressman Benzinger LaVelle psc cgilbert@dbllaw.com 859-341-1881

2. Enforcement Authority  Detecting and preventing fraud, waste and abuse in HHS programs  Majority of resources focused on Medicare & Medicaid  Exclusion authority  Civil Monetary Penalties

3. 2014 OIG Publications  2014 Work Plan  Civil Monetary Penalties – Proposed Rule  Report on Compliance with Reporting Obligations – Abuse & Neglect  Report on Adverse Events in SNFs  Compendium of Priorities

4. 2014 Work Plan – Nursing Facilities  January 2014  Outlines OIG’s current focus areas and primary objectives of each project  Provider insight into OIG process and what issues OIG will be looking for

5. OIG Work Plan – Nursing Facilities  Two primary areas of focus  Billing and Payments  Questionable billing patterns for Part A and Part B nursing home stays  Quality & safety  State agency verification of compliance with correction plans  National background checks for LTC employees  Preventable hospitalizations

6. 2014 Work Plan – Billing & Payment  Examine variation in Part A billing  Increased billing for highest level of therapy, but resident characteristics are unchanged  ¼ of SNF’s billings were in error  Identify questionable billing patterns related to billing for Medicare Part B services provided during nursing home stays not paid under Part A  Congress directed OIG to monitor Part B billing

7. 2014 Work Plan – Quality & Safety  Review whether state agencies are verifying that NF are implementing correction plans  OIG found that at least one State survey agency was not ensuring NF implementation of correction plans and correction of deficiencies  Monitor the effectiveness of national background checks for long-term care employees  Cost-effectiveness  Unintended consequences  Hospitalization for preventable and manageable conditions acquired in nursing homes  Monitor unnecessary hospitalizations and quality of care

8. Civil Monetary Penalty Proposed Rule  OIG recently issued a proposal to amend CMP rules and add rules contained in Affordable Care Act  Current CMP Rule permits OIG to levy CMPs on providers that engage in prohibited conduct

9. Additional grounds for penalties  Failure to timely grant access to records  Ordering or prescribing while excluded – $10,000/violation & 3x amount for each item or service wrongfully claimed  Failure to report or return overpayments - $10,000/day  False statements in enrollment applications

10. Liability for excluded persons  Separately billable items and services  Penalties and assessments based on number and value of each separately billable item and service  Non-separately billable items and services  Penalties based on number of days the provider employed or contracted with the excluded person  Assessments based on total costs to employer for employing or contracting with excluded person

11. Aggravating Factors  “If any single aggravating circumstance is present, the maximum penalty may be justified.”  New aggravating factor – “a person’s level of intent to commit the violation that is greater than minimum intent required to establish liability.”  Provide aggravation threshold of $15,000

12. Mitigating Factors  Appropriate and timely corrective action – self- report to OIG self-disclosure protocol  Raise mitigation threshold from $1,000 to $5,000

13. Additional clarity  Provide additional detail on factors OIG considers in determining amount of penalty or length of exclusion  Nature and circumstances of violation  Degree of culpability of person  History of prior offenses  Other wrongful conduct  Other matters as justice may require  Provide OIG with more flexibility in considering such factors

14. Adverse Event Report  February 2014  22% of Medicare beneficiaries experience an adverse event  11% of Medicare beneficiaries experience temporary harm events  Recommend that AHRQ and CMS focus on nursing home safety and preventing resident harm, including creating list of reportable events and providing guidance to facilities on patient safety

15. Abuse & Neglect Report  August 2014  Report found fairly high prevalence of compliance with Federal regulations  95% of nursing facilities had policies reflecting requirement to report incidences of abuse and neglect  76% of nursing facilities had policies reflecting requirement to report incidences of abuse and neglect and subsequent investigation results  Recommended that CMS reissue guidance related to abuse and neglect obligations

16. Compendium of Priorities  March 2014  Identifies previous recommendations to Congress for which corrective actions have not been completed or OIG believes more could be done by CMS  CMS does not necessarily agree with or implement the recommendations  Five recommendation areas for nursing facilities

17. Compendium of Priorities  Hospice care in nursing homes:  Monitor hospices that depend heavily on nursing facility residents  Modify the payment system for hospice care in nursing facilities  Harm to patients:  CMS should Include potential events and information about resident harm in its quality guidance to nursing homes and  instruct nursing home surveyors to review facility practices for identifying and reducing adverse events.  AHRQ and CMS should collaborate to create and promote a list of potential nursing home events and  encourage nursing homes to report adverse events to Patient Safety Organizations.

18. Compendium of Priorities  Skilled Nursing Facilities Billing:  Increase and expand reviews of SNF claims  Monitor compliance with the new therapy assessments  Change the current method for determining how much therapy is needed to ensure appropriate payments  Improve the accuracy of data items submitted by SNFs  Follow up on SNFs that billed in error  Monitor overall Medicare payments to SNFs and adjust rates as necessary,  Strengthen monitoring of SNFs that disproportionately bill for higher paying resource utilization groups (RUGs), and  Follow up on the SNFs identified as having questionable billing practices.

19. Compendium of Priorities  Care Planning & Discharge Planning:  Strengthen regulations on care planning and discharge planning  Provide guidance to SNFs to improve care planning and discharge planning  Increase surveyor efforts to identify SNFs that do not meet care planning and discharge planning requirements and to hold these SNFs accountable  Link payments to meeting quality of care requirements  Follow up on the SNFs that failed to meet care planning and discharge planning requirements and that provided poor quality of care

20. Compendium of Priorities  Questionable hospitalizations  CMS should develop a quality measure that describes nursing home rates of resident hospitalization and  instruct State agency surveyors to review nursing home rates of resident hospitalization as part of the survey and certification process.  CMS should assess whether survey and certification processes offer adequate safeguards against unnecessary antipsychotic drug use in nursing homes,  Inappropriate drug use  Explore alternative methods for the survey and certification process to promote compliance with established Federal standards regarding unnecessary drug use in nursing homes  Take appropriate action regarding the claims associated with erroneous payments identified in our sample  Facilitate access to information necessary to ensure accurate coverage and reimbursement determination

21. Questions?

22. Thank you Carrie S. Gilbert Dressman Benzinger LaVelle psc cgilbert@dbllaw.com 859-341-1881