Nursing Homes Found Guilty in Criminal Understaffing Case= Individual Defendants Acquitted

In a rare case in which a nursing home business faced criminal charges over staffing misconduct, two Pennsylvania facilities owned by Comprehensive Healthcare Management Services were recently found guilty of healthcare fraud and other crimes.

Prosecutors alleged two different schemes to enrich the nursing homes’ operations. In the first, leaders were accused of falsifying payroll documents to make it appear the nursing homes were meeting required staffing levels, including having non-working direct care staff clock in for shifts they never intended to work. In the second, administrators were accused of changing assessments to make it appear patients were clinically depressed or needed more therapy as a means of delaying discharge and driving Medicare or Medicaid reimbursements.  

Both schemes appear to be occasional, if not common, practice of some nursing homes.  The Trump Administration, for example, began demanding payroll records of nursing homes, because CMS found that some nursing homes misrepresented staffing levels on routine reports. Moreover, the financial incentive of these institutions to misrepresent a patient's condition or need for treatment, underlies many of the ongoing battles to ensure better quality of care for patients.  

After five weeks of testimony in the complicated case involving Brighton Rehabilitation and Wellness Center and Mt. Lebanon Rehabilitation and Wellness Center, the jury returned verdicts against the institutions charged. The US Attorney’s Office for the Western District of Pennsylvania also prosecuted five company and facility leaders for their roles in a scheme that led to overbilling; the jury found all five not guilty.

Brighton Rehab itself was found guilty of healthcare fraud and five counts of falsification of records in a federal investigation, while Mt. Lebanon was found guilty of one count of falsification of records related to healthcare matters and three counts of falsification of records in a federal investigation. The nursing home defendants are scheduled to be sentenced in May before US District Judge Robert J. Colville.

According to Kimberly Marselas, reporting for McKnights' Long Term Care News, neither prosecutors nor defense attorneys offered a solid explanation why the jury reserved its convictions for the corporate defendants. US Attorney Eric Olshan, nonetheless, assured told McKnight’s Long-Term Care News that his office would pursue similar cases in the future, if warranted:

“Our legal system entrusts the jury with making determinations of guilt, and as in all cases, we respect the jury’s verdict. Today, the jury held the two corporate defendants criminally liable for a total of 10 counts of making false statements and obstructing CMS’s critically important work of ensuring that nursing facilities comply with the law.  This office and our law enforcement partners will continue to seek accountability for any individual or business that pursues profit through deceit and does so at the expense of vulnerable members of our community.”

Several counts in the indictment carried up to $250,000 in fines, or jail times in the case of individuals. In a press release issued by the US Attorney’s Office , prosecutors said the companies faced a maximum of five years probation, $500,000 in fines, or both, on the counts for which they were convicted.

According to McKnights, 

"Brighton, with 589 beds, is one of the state’s largest nursing homes and was plagued by problems during the pandemic. The facility was hit with at least  $62,000 in fines for infection control deficiencies, and the state later selected a temporary manager to come in and clean up operations. 

The 121-bed Mt. Lebanon facility also has had its share of problems, including a 2-star overall rating and an abuse citation noted on the Care Compare site.

Both facilities are managed by Comprehensive Healthcare Management Services, an entity affiliated with Ephram “Mordy” Lahasky. He has a 10% direct ownership stake in Brighton, while Halper has a 12% ownership stake.

Attorneys for the individual defendants framed the case as one of sloppy record keeping and government malfeasance, rather than intentional fraud, TribLive reported.  The Pittsburgh Tribune-Review reported that attorneys also attacked the credibility of 20 former nursing home employees as each having an axe to grind: some were fired, others quit, and some were offered immunity in exchange for their testimony.

Attorney Kirk Ogrosky represented Sam Halper, Brighton’s CEO and 12% owner and an officer at Mt. Lebanon. Orgosky argued there was no evidence Halper was involved in ordering or completing incorrect staffing records but instead told the jury that a handful of staff members came up with a scheme to cheat the buildings’ corporate owners.

“Throughout this case, all defendants cooperated with the US Department of Justice in every way possible. Yet, DOJ pursued individuals without regard for the truth,” Halper said in a statement shared with TribLive. “Thankfully, the jurors were able to hear the evidence and find that the facts did not support DOJ’s claims.”

Regardless, the case is representative of just how complicated is the challenge to ensure care quality,  and just how difficult it can be for the government, even when properly motivated, to protect the vulnerable by holding third parties responsible.  Individuals and institutions pursuing their own self interest at the expense of senior residents and patients is a common theme in cases like the one reported.  

Of course, the case does not ask or resolve the question of whether a health care system devised and regulated by a government bureaucracy overly concerned with reducing costs at the expense of quality can ever attain a high quality of care for patients.  Aging in Place is a discreet goal of a well-crafted estate plan because a person with family and loved ones can often better control the circumstances of their care at home or at less institutional alternatives.

CMS Proposal Embraces Aging in Place; Medicare Would Train Home Caregivers

A new proposal from the Centers for Medicare & Medicaid Services (CMS) offers to support family, friends, and neighbors who care for frail, ill, and disabled seniors. For the first time, Medicare would pay health care professionals to train informal caregivers who manage medications, assist loved ones with activities such as toileting and dressing, and oversee the use of medical equipment.

The proposal, which would ostensibly cover both individual and group training, is recognition of the role family caregivers, also called informal caregivers, play in protecting the health and well-being of older adults. About 42 million Americans provided unpaid care to people 50 and older in 2020, according to a much-cited report.  The proposal is also support for aging in place; by removing real barriers to family caregiving and encouraging family members and friends to take on care-giving roles, the proposal makes aging in place an even more attractive alternative to institutional care.  

“We know from our research that nearly 6 in 10 family caregivers assist with medical and nursing tasks such as injections, tube feedings, and changing catheters,” Jason Resendez, president and CEO of the National Alliance for Caregiving told KFF News. "But fewer than 30% of caregivers have conversations with health professionals about how to help loved ones," he said.  Even fewer caregivers for older adults — only 7% — report receiving training related to tasks they perform, according to a June 2019 report in JAMA Internal Medicine.

Nancy LeaMond, chief advocacy and engagement officer for AARP, after recounting her personal caregiving experience requiring that she and a caregiving son access library videos regarding caregiving, told KFF News , "[u]ntil very recently, there’s been very little attention to the role of family caregivers and the need to support caregivers so they can be an effective part of the health delivery system.” 

Several details of CMS’ proposal have yet to be finalized. Notably, CMS has asked for public comments on who should be considered a family caregiver for the purposes of training and how often training should be delivered.

Many advocates favor a broad definition of who qualifies as a caregiver. Since several people often perform caregiving tasks, training should be available to more than one person. Moreover, since seniors sometimes reimburse family members and friends for assistance, being unpaid should not be a requirement.  Advisors often counsel seniors needing care to make such payments in order to reduce the countable estate for Medicaid eligibility purposes, and to incentive engagement and advocacy for the senior's best interest. 

Other advocates raised their concerns with KFF News:

As for the frequency of training, a one-size-fits-all approach isn’t appropriate given the varied needs of older adults and the varied skills of people who assist them, suggested Sharmila Sandhu, vice president of regulatory affairs at the American Occupational Therapy Association. Some caregivers may need a single session when a loved one is discharged from a hospital or a rehabilitation facility. Others may need ongoing training as conditions such as heart failure or dementia progress and new complications occur, Kim Karr, who manages payment policy for AOTA, told KFF News.

When possible, training should be delivered in a person’s home rather than at a health care institution, suggested Donna Benton, director of the University of Southern California’s Family Caregiver Support Center and the Los Angeles Caregiver Resource Center. All too often, recommendations that caregivers get from health professionals aren’t easy to implement at home and need to be adjusted.

Judith Graham, writing for KFF News reported that some are, nonetheless, skeptical.

For her part, Cheryl Brown, 79, of San Bernardino, California — a caregiver for her husband, Hardy Brown Sr., 80, since he was diagnosed with ALS in 2002 — is skeptical about paying professionals for training. At the time of his diagnosis, doctors gave Hardy five years, at most, to live. But he didn’t accept that prognosis and ended up defying expectations.

Today, Hardy’s mind is fully intact, and he can move his hands and his arms but not the rest of his body. Looking after him is a full-time job for Cheryl, who is also chair of the executive committee of California’s Commission on Aging and a former member of the California State Assembly. She said hiring paid help isn’t an option, given the expense.

And that’s what irritates Cheryl about Medicare’s training proposal. “What I need is someone who can come into my home and help me,” she told me. “I don’t see how someone like me, who’s been doing this a very long time, would benefit from this [training]. We caregivers do all the work, and the professionals get the money? That makes no sense to me.

Of course, concern regarding systemic over-reliance upon institutional care is valid; systems do not reform easily.  There are other reasons for concern, too.  For example, indoctrinated "trainers" may oppose aging in place for some, and may resist non-traditional treatments and therapies in conjunction with or as alternatives to the traditional.  The new cadre of voices and eyes will, no doubt, sometimes over-reach and interfere with individual autonomy and reliance upon family and friends.  The flip side, of course, is that these eyes and ears can report legitimately unsafe, abusive, or exploitative situations providing vulnerable seniors additional protection.       

Regardless, the proposal is a welcome step in the direction of aging of place as a legitimate alternative to institutional care.  No doubt there is more work to be done, including financially supporting home caregivers who could, in many cases cost a fraction of the cost of institutional care, and secure better health outcomes.

If you’d like to let CMS know what you think about its caregiving training proposal, you can comment on the CMS site until 5 p.m. ET on Sept. 11. The expectation is that Medicare will start paying for caregiver training next year, and caregivers should start asking for it then.

Article Largely Based On: Judith Graham, "A New Medicare Proposal Would Cover Training for Family Caregivers," KFF Health News (August 18, 2023, last accessed 8/27/2023).

CMS Implementing New Training Protocols Protecting Resident Health and Safety Amid COVID-19

According to an announcement made by the Centers for Medicare & Medicaid Services (CMS):

"Today, under the leadership of President Trump, the Centers for Medicare & Medicaid Services (CMS) is implementing an unprecedented national nursing home training program for frontline nursing home staff and nursing home management. The training is designed to equip both frontline caregivers and their management with the knowledge they need to stop the spread of coronavirus disease 2019 (COVID-19) in their nursing homes. The training announced today will be available immediately to staff of America’s 15,400 Medicare and Medicaid certified nursing homes and focuses on critical topics like infection control and prevention, appropriate screening of visitors, effective cohorting of residents, safe admission and transfer of residents, and the proper use of personal protective equipment (PPE) – all critical elements of stopping the spread of COVID-19.  President Trump first announced the training in late July as part of the Trump Administration’s unwavering commitment to the safety of American seniors living in nursing homes. The training is only the latest in a long list of decisive actions the Trump Administration has taken to safeguard America’s nursing homes."

CMS Administrator Seema Verma wrote in the announcement, the following:

“President Trump has directed us to deploy every resource available to ensure nursing homes are prepared, educated, and ready to keep all our seniors safe from this highly contagious, dangerous disease. CMS is taking unprecedented action to ensure that nursing homes are doubling down on efforts to prevent the spread of the virus. This national training program is just the latest example of our coordinated and aggressive response to this unprecedented situation.” 

Purportedly, the "first-of-its kind" scenario-based training is called the “CMS Targeted COVID-19 Training for Frontline Nursing Home Staff and Management” and it has been designed specifically with COVID-19 in mind. The program features a tailored course that incorporates the most recent lessons learned from nursing homes and teaches frontline staff best practices they can implement to address issues related to COVID-19. The training builds upon results of CMS nursing home inspections and the findings of epidemiological experts from the Centers for Disease Control and Prevention (CDC) who work with nursing homes. The design was also influenced by the findings of federal nursing home task force strike teams, through which experts from CMS and CDC were deployed to nursing homes actively battling COVID-19 outbreaks in hot spot areas over the summer. The strike teams learned that while current regulations were designed to protect the health and safety of residents, the pandemic created an urgent need to directly assist frontline workers with more focused training and guidance than has been used in the past.

The CMS Targeted COVID-19 Training for Frontline Nursing Home Staff & Management is immediately available, with five (5) specific modules designed for frontline clinical staff and ten (10)  designed for nursing home management. The training is available on the CMS Quality, Safety & Education Portal.

The training for frontline staff, called “CMS Targeted COVID-19 Training for Frontline Nursing Home Staff” covers five topics separated into five modules. These modules address some of the most common concerns found by surveyors and strike teams, basic infection control and prevention. The modules are focused on the most urgent needs of frontline nursing home staff and they include:

• Module 1: Hand Hygiene and PPE;
• Module 2: Screening and Surveillance;
• Module 3: Cleaning the Nursing Home;
• Module 4: Cohorting;
• Module 5: Caring for Residents with Dementia in a Pandemic.

The training for management, called “CMS Targeted COVID-19 Training for Nursing Home Management” covers 10 topics separated into 10 modules. These modules are comprehensive, focusing on infection control and cleanliness but also larger institution-wide issues like implementation of telehealth, emergency preparedness, and vaccine delivery. They include:

• Module 1: Hand Hygiene and PPE;
• Module 2: Screening and Surveillance;
• Module 3: Cleaning the Nursing Home;
• Module 4: Cohorting;
• Module 5: Caring for Residents with Dementia in a Pandemic'
• Module 6: Basic Infection Control;
• Module 7: Emergency Preparedness and Surge Capacity;
• Module 8: Addressing Emotional Health of Residents and Staff;
• Module 9: Telehealth for Nursing Homes;
• Module 10: Getting Your Vaccine Delivery System Ready.

To ensure nursing home staff are aware of the training and availing themselves of it, CMS is directing Quality Improvement Organizations (QIOs) – CMS’ nationwide quality improvement contractors – to include the training in the action plans that QIOs develop in collaboration with each nursing home they assist. This will help ensure that nursing homes are building the training into their existing quality improvement efforts.

Finally, while the training announced today is comprehensive, CMS and CDC will also have subject matter experts available on bi-weekly webinars from August 27, 2020, through January 7, 2021, from 4:00 – 5:00 p.m. ET, to answer questions. Registration is required for these Question and Answer sessions. Participants can register on the Zoom webinar registration page.

If a nursing home’s staff is unsure which training module best meets their needs, CMS is offering an online self-assessment tool at www.qioprogram.org to help them identify their needs and suggest the appropriate training modules that best reflect those needs. A certificate of completion is offered for each completed training course.

While the training is targeted to address, and motivated by, the pandemic, the attention to training regarding control of infection is necessary and welcome. 

Trump Administration Initiative Helps States with More and Faster COVID-19 Testing in Nursing Homes

Nursing homes with three or more COVID-19 cases will be the first to receive on-site diagnostic test equipment from federal health agencies, starting in regions where infections are spiking.

The news was announced Wednesday by the Centers for Medicare & Medicaid Services (CMS), a day after Administrator Seema Verma revealed a new federal plan to deploy rapid point-of-care COVID-19 testing capabilities to eldercare facilities nationwide.

In this week’s rollout, federal agencies will prioritize about 2,000 facilities in hard-hit locations such as Florida, Arizona and Texas. Each approved facility will receive one diagnostic testing instrument and associated tests. Once equipment is distributed, operators can procure additional tests directly from the manufacturers, health officials told nursing homes in a conference call last week, according to McKnight's Long-term Care News.

According to a statement released by Verma, 

The goal is to support on-site infection control and prevention through universal testing. It gives nursing homes the ability to swiftly identify residents that need to be isolated and mitigate the spread of the virus. As one more tool in the toolbox, it represents an important step toward the long-awaited reunion of residents with their loved ones.

To take part, nursing homes must have the capability to test residents and staff on a weekly basis or in accordance with state and local health department guidance, according to the Department of Health and Human Services (DHS), which is helping to distribute the equipment. Visitor testing is also possible “if appropriate for that facility,” the agency added.

The equipment, including the Quidel Sofia and Sofia 2 instruments and BD Veritor Plus Systems, uses antigen tests that can quickly detect fragments of viral proteins in nasal cavity swab samples, providing results in minutes. 

While point-of-care tests may be “slightly more likely” to have a false negative result than laboratory tests, “these are the best, most cost-effective tests we have on the market right now,” said Adm. Brett Giroir, Assistant Secretary of the DHS during the Wednesday call.

“We think this is going to be a turning point in this fight against the coronavirus and keeping our residents safe,” CMS’s Verma concluded.

The new federal initiative was announced after months of lobbying for better testing access by the eldercare industry. Now some advocates have questions. Katie Smith Sloan, president and CEO of LeadingAge, has called for more information about staff training, access to ongoing test supplies, and test reliability for operators’ planning purposes. 

According to CMS, there are more than 200,000 confirmed or suspected cases of COVID-19 and more than 35,000 COVID-19 deaths among nursing home residents as of July 9, 2020. Additionally, the Centers for Disease Control and Prevention (CDC)  recommends that nursing homes perform baseline testing of all residents and staff, followed by regular screening and surveillance through routine testing to detect potential outbreak situations early and reduce morbidity and mortality.  

CMS increases Medicare Payment for High-Production COVID-19 Lab Tests, Expands Testing Capacity and Monitoring in SNF's

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The Centers for Medicare and Medicaid Services (CMS) today announced Medicare will nearly double payment for certain lab tests that use high-throughput technologies to rapidly diagnose large numbers of 2019 Novel Coronavirus (COVID-19) cases. This is another action the Trump Administration is taking to rapidly expand COVID-19 testing, particularly for those with Medicare, including nursing home residents who are among the most vulnerable to COVID-19 and most affected by COVID-19 outbreaks across the country.

“CMS has made a critical move to ensure adequate reimbursement for advanced technology that can process a large volume of COVID-19 tests rapidly and accurately,” said CMS Administrator Seema Verma. “This is an absolute game-changer for nursing homes, where risk of Coronavirus infection is high among our most vulnerable.”

Medicare will pay the higher payment of $100 for COVID-19 clinical diagnostic lab tests making use of high-throughput technologies developed by the private sector that allow for increased testing capacity, faster results, and more effective means of combating the spread of the virus. High-throughput lab tests can process more than two hundred specimens a day using highly sophisticated equipment that requires specially trained technicians and more time-intensive processes to assure quality. Medicare will pay laboratories for the tests at $100 effective April 14, 2020, through the duration of the COVID-19 national emergency.

Increasing Medicare payment for these tests will help laboratories test in nursing home communities that are vulnerable to the spread of COVID-19. On March 30, 2020, CMS announced that Medicare will pay new specimen collection fees for COVID-19 testing for homebound and non-hospital inpatients, to help facilitate the testing of homebound individuals and those unable to travel. As a result of these actions, laboratories will have expanded capability to test more vulnerable populations, like nursing home patients, quickly and provide results faster.

For other COVID-19 laboratory tests, local Medicare Administrative Contractors (MACs) remain responsible for developing the payment amount in their respective jurisdictions. MACs are currently paying approximately $51 for those tests. As with other laboratory tests, there is generally no beneficiary cost-sharing under Original Medicare.

This announcement builds upon recent CMS actions to expand testing for COVID-19. On March 30, 2020, CMS announced that hospitals, laboratories, and other entities can perform tests for COVID-19 on people at home and in other community-based settings outside of the hospital. This will both increase access to testing and reduce risks of exposure. Additionally, CMS took action to allow healthcare systems, hospitals, and communities to set up testing sites to identify COVID-19-positive patients in a safe environment.

To keep up with the important work the Task Force is doing in response to COVID-19, visit www.coronavirus.gov. For a complete and updated list of CMS actions, and other information specific to CMS, please visit the Current Emergencies Website.

For more information on this payment announcement, please visit:

https://www.cms.gov/files/document/cms-2020-01-r.pdf

3-Day Hospital Stay Rule Waived for SNF Transfers During the National Emergency

On the heels of the declaration of a national emergency, the Centers for Medicare & Medicaid Services (CMS) is waiving the requirement that Medicare beneficiaries must spend at least three days in a hospital before qualifying for coverage in a skilled nursing facility (SNF) for those beneficiaries who need to be transferred as a result of a disaster or emergency. 

In addition, CMS states that “for certain beneficiaries who recently exhausted their SNF benefits,” SNF coverage will be renewed without first having to start a new benefit period.  

For more information see CMS’s “COVID-19 Emergency Declaration Health Care Providers Fact Sheet.” 

As Abuse in Nursing Homes Increases, Congress Focuses On CMS rather than Nursing Home Providers

Among the many reasons to plan to age in place is abuse that visits residents at nursing homes.  According to McKnights Long-term Care News, abuse deficiencies cited in nursing homes more than doubled in four years, increasing from 430 in 2013 to 875 in 2017.  These were among the findings of a 2019 Government Accountability Office (GAO) report. The most common form of abuse consist of physical and verbal abuse by staff, comprising more than half (58%) of all abuse deficiencies analyzed. 

The Report also concluded, shockingly, that most sexual abuse of nursing home residents come at the hands of nursing home staff, rather than other residents or third parties. 

The Report emphasized that abuse in nursing homes is often under-reported. Moreover, the GAO reported to Congress that even information on reported abuse and perpetrator type is not readily available. Centers for Medicare & Medicaid Services (CMS) does not require the state survey agencies to record the type of abuse and perpetrator.  Worse, when this information is recorded, it cannot be easily analyzed. Therefore, GAO reviewed a representative sample of abuse deficiency narratives from 2016 through 2017.

Nursing home residents often have physical or cognitive limitations that can leave them particularly vulnerable to abuse. Abuse of nursing home residents occur in many forms, including physical, mental, verbal, and sexual, and can be committed by staff, residents, or others in the nursing home. Any incident of abuse is a serious occurrence and can result in potentially devastating consequences for residents, including lasting mental anguish, serious injury, or death. News stories in recent years have noted disturbing examples of nursing home residents who have been sexually assaulted and physically abused.

Federal law clearly mandates that nursing homes receiving Medicare or Medicaid payments ensure that residents are free from abuse. To help ensure this, CMS, an agency within the Department of Health and Human Services (HHS), defines the quality standards that nursing homes must meet in order to participate in the Medicare and Medicaid programs. To

monitor compliance with these standards, CMS enters into agreements with agencies in each state government—known as state survey agencies—and oversees the work the state survey agencies do. This work includes conducting required, comprehensive, on-site standard surveys of every nursing home approximately once each year and investigating both complaints from the public and incidents self-reported by the nursing home (referred to as facility-reported incidents) regarding resident care or safety.

If a surveyor determines that a nursing home violated a federal standard during a survey or investigation, then the home receives a deficiency citation, also known as a deficiency. In addition to state survey agencies, there are other state and local agencies that may be involved in investigating abuse in nursing homes, including Adult Protective Services, local law enforcement, and Medicaid Fraud Control Units (MFCU) in each state, which are tasked with investigating and prosecuting a variety of health care-related crimes.

Attaining and keeping nursing home quality is not a new challenge, and numerous studies and reports have identified CMS challenges in protecting residents from abuse and weaknesses in CMS’s oversight. For example, in multiple reports dating back to 1998, GAO identified weaknesses in federal and state activities designed to correct quality problems in nursing homes. Specifically, in a 2002 report, the GAO found that CMS needed to do more to protect nursing home residents from abuse, and GAO made five recommendations to help CMS facilitate the reporting, investigation, and prevention of abuse in nursing homes.

In April 2019 GAO reported that CMS had failed to address gaps in federal oversight of nursing home abuse investigations in Oregon—an issue that we uncovered during the course of our broader work on nursing home resident abuse.  Further, reports by the HHS

Office of the Inspector General (OIG) have also reviewed incidents of resident abuse and raised concerns about CMS’s procedures.

It is important to note that the legal duty is imposed on each nursing home with CMS oversight helping insure the provides fulfill their duties. If providers perform well their obligations, oversight would be made irrelevant, and more importantly the incidence of abuse would decline.  One might conclude that with abuse rising so dramatically, even as CMS is tightening its oversight capabilities, anger with the industry would be palpable.  In a recent hearing, hovever, Members of the Senate Finance Committee "directed much of their ire not at providers but rather at CMS:

“Not only have abusive incidents doubled in recent years, but the GAO has found that CMS – the agency charged with ensuring that these facilities meet federal quality standards – often cannot access information about abusive incidents after they occur and, therefore, cannot take the necessary steps to remedy the situation,” said Sen. Thomas R. Carper (D-DE).

“CMS needs to ramp up its oversight efforts and fix the problems identified by the Government Accountability Office,” added Sen. Charles Grassley (R-IA), the chairman of the committee.

All parties at the hearing, which included American Health Care Association’s President and CEO Mark Parkinson, stressed a need and commitment to reducing abuse and neglect in nursing homes. They all also found common ground on better background check practices. Ranking committee member Sen. Ron Wyden (D-OR) expressed surprise that 13 states have no background check process for nursing home employees.

There are inconsistencies and loopholes throughout the country when it comes to nursing home oversight, including about providers having to self-attest their ownership, testified Megan H. Tinker, Senior Advisor for Legal Review of the Office of Counsel to the Inspector General, Health and Human Services.  Additionally, a provider can be eligible for Medicaid if it is already in the Medicare program, even if there hasn’t been a background check through Medicare, Tinker added.  “That leaves open a possibility a provider could be a provider for Medicaid with no background check,” she said.

Despite agreement on needing to reduce abuse and neglect, policy makers and experts differed on the best way to achieve those goals, specifically when it comes to funding.

“Medicaid covers two out of three nursing home residents. We need to strengthen Medicaid,” said Sen. Debbie Stabenow (D-MI).

In response to a question about mandatory staffing from Sen. Catherine Cortez Masto (D-NV), AHCA’s Parkinson harkened back to his days running nursing homes, acknowledging that more workers is generally better but also how it depends on how careful and efficient a given certified nursing assistant is.

He also noted that in order to achieve a higher ratio of staff to residents of 4.1 hours per resident per day, as some have suggested, it would cost potentially an additional $6 billion.

“If there’s a mandatory staffing requirement that would be paid for, we’d be all for it,” he said. “But if it’s not paid for, there is no practical way to do it.” 

Lori Smetanka, Executive Director of the National Consumer Voice for Quality Long-Term Care, pushed back in subsequent remarks.

“I think we do need to look at how the money is currently being spent by long-term care facilities,” she said. Her group encourages auditing before assessing how much additional funding is needed.

The GAO made the following recommendations to curb abuse  in its report:

•  Require that abuse and perpetrator type be submitted by state survey agencies in CMS’s federal databases for deficiency, complaint and facility-reported incident data, and that CMS systematically assess trends in these data.

•  Develop and disseminate guidance — including a standardized form — to all state survey agencies on the information nursing homes and covered individuals should include on facility-reported incidents.

• Require state survey agencies to immediately refer complaints and surveys to law enforcement (and, when applicable, to Medicaid Fraud Control Units) if they have a reasonable suspicion that a crime against a resident has occurred when the complaint is received.

• Conduct oversight of state survey agencies to ensure referrals of complaints, surveys and substantiated incidents with reasonable suspicion of a crime are referred to law enforcement (and, when applicable, to MFCUs) in a timely fashion. 

• Develop guidance for state survey agencies clarifying that allegations verified by evidence should be substantiated and reported to law enforcement and state registries in cases where citing a federal deficiency may not be appropriate. 

• Provide guidance on what information should be contained in the referral of abuse allegations to law enforcement.

The hearing was live-streamed and can be viewed on the committee’s website.

Hospice Comprehensive Assessment Measure - One Pager Now Available while the Administration develops HOPE

CMS has posted a document that articulates key information about the current Hospice Comprehensive Assessment Measure. This "one pager" provides a visual depiction that helps providers, seniors, their families, and caregivers, understand how the seven Hospice Item Set (HIS) measures contribute to the one Comprehensive Assessment Measure (CAM), and helps providers to stay on target by completing all seven HIS measures for each patient. The  CAM helps to ensure all hospice patients receive a holistic comprehensive assessment at admission, although it does not replace a comprehensive assessment. 

Of course, while helpful, HOPE is on the way.  Section 3004 of the Patient Protection and Affordable Care Act, requires the Secretary of Health and Human Services to establish procedures for making data available to the public and to ensure hospices have the opportunity to review that data prior to public reporting. CMS is developing a new patient assessment tool to be proposed in future rulemaking. As finalized in the Fiscal Year 2020 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Requirements Final Rule, the hospice patient assessment instrument is identified as the Hospice Outcomes & Patient Evaluation (HOPE). This new tool is intended to help hospices better understand care needs throughout the patient’s dying process and contribute to the patient’s plan of care. It will assess patients in real-time, based on interactions with the patient, as opposed to the HIS retrospective chart review. Finally, HOPE will support quality improvement activities and calculate outcome and other types of quality measures in a way that mitigates burden on hospice providers and patients. 

Objectives of the HOPE

The HOPE will provide standardized data as all Medicare-certified hospices will be collecting the same assessment items for all patients. Standardization will allow CMS to analyze the data by patients, hospices, and recognize the differences between hospices. Through data analytic summaries and comparisons, hospice providers will have information to help them identify opportunities to adjust and improve patient- and agency-level decisions about the care they provide. Furthermore, patients and their families will be more informed about the hospice they choose based on quality measures that measure outcomes throughout the hospice stay and public reporting.

The two primary objectives of the HOPE are to:

• Provide quality data for HQRP requirements through standardized data collection
• Provide additional clinical data that could inform future payment refinements.

CMS seeks to develop quality measures associated with the new assessment tool that are meaningful to all stakeholders and reflect critical outcomes of care throughout the hospice stay. The measures will meet the Meaningful Measures Initiative objectives to identify high priority areas for quality measure development while reducing burden on hospice providers. They will focus on outcomes and also fit well with the hospice business model. 

Differences between HIS and the HOPE

Currently CMS collects data at admission and discharge via the Hospice Item Set (HIS) that are used to calculate measures in the Hospice QRP. However, while HIS is a standardized mechanism for extracting medical record data, it is not a patient assessment tool because the data is not collected during a patient assessment. Instead, HIS focuses on whether hospices have performed care processes using data from chart abstraction. CMS’s goal for the HOPE is to be more comprehensive than the HIS by capturing patient and family care needs in real-time and throughout the hospice stay, with the flexibility to accommodate patients with varying clinical needs. The HOPE will take into consideration hospice workflow and the Medicare Conditions of Participation. Data in patients’ baseline status and changes in their outcomes from the HOPE will contribute to care planning and inform quality measurement for the Hospice QRP, including outcome measures, and support providers’ quality improvement efforts.

Process for Developing the HOPE

The general process for the development of the HOPE includes, but is not limited to, the following calendar year 2019 activities: information gathering, stakeholder engagement, and preparing for initial testing of the HOPE. After the initial testing, the HOPE will be revised based on test findings before moving forward to national-level testing. After conducting the national-level testing of the HOPE, CMS will incorporate learnings by refining the HOPE and propose the tool in rulemaking and seek public comments. When finalized in future rulemaking, the HOPE will be implemented in the Medicare Hospice Benefit to provide value to hospice providers, patients, and families.   

Medicare Part A and Part B Costs to Rise in 2020

Daily coinsurance rates for seniors in skilled nursing facilities will be rising next year. 

The Centers for Medicare & Medicaid Services on Friday announced the 2020 premiums, deductibles and coinsurance amounts for the Medicare Part A and Part B programs. 

Beneficiaries living in skilled nursing facilities will see their daily coinsurance for days 21 through 100 of extended care services during the benefit period rise from $170.50 in 2019 to $176 in 2020. 

Medicare Part B premiums will also be rising for seniors. The standard monthly premium will increase from $135.50 in 2019 to $144.60 for 2020. Annual deductibles also will increase from $185 for 2019 to $198 for 2020. 

“The increase in the Part B premiums and deductible is largely due to rising spending on physician-administered drugs. These higher costs have a ripple effect and result in higher Part B premiums and deductible,” CMS stated in a release. 

Medicare Part A covers inpatient hospital, skilled nursing facility, and some home health care services, while Part B covers physician services, outpatient hospital services, certain home health services, durable medical equipment, and certain other medical and health services not covered by Medicare Part A.

Trump Administration Improves Transparency about Nursing Home Abuse and Neglect

Today, the Trump Administration and the Centers for Medicare and Medicaid Services (CMS) announced a major enhancement of the information available to nursing home residents, families, and caregivers on the Agency’s Nursing Home Compare website. Later this month, CMS will – for the first time – display a consumer alert icon next to nursing homes that have been cited for incidents of abuse, neglect, or exploitation. By making this information accessible and understandable, CMS is empowering consumers to make the right decisions for themselves and their loved ones. This critical move toward improved transparency is yet another way CMS is delivering on the Agency’s five-part approach to ensuring safety and quality in nursing homes, which Administrator Seema Verma announced in April 2019:

“The Trump Administration and CMS are committed to ensuring that nursing home residents are safe from abuse and neglect. Through the “transparency” pillar of our five-part strategy to ensure safety and quality in nursing homes, we are giving residents and families the ability to make informed choices,” said Administrator Seema Verma. “With today’s action, the Trump Administration is putting critical information at consumers’ fingertips, empowering them and incentivizing nursing homes to compete on cost and quality.”

The Nursing Home Compare tool displays an array of information about nursing homes – including whether a facility meets federal standards with respect to health and safety compliance inspections, staffing levels, and quality measure performance. Previously, consumers could investigate past instances of abuse citations at a nursing home, but finding this information from its health inspection reports available on Nursing Home Compare required multiple steps. CMS is minimizing the steps, making it easier for patients, residents, and their families and caregivers to quickly identify nursing homes with past citations for abuse.Patients and families will see CMS’ new alert icon for Nursing Home Compare, shown below.

Beginning October 23, the new alert icon will be added to the Nursing Home Compare website for facilities cited on inspection reports for one or both of the following: 1) abuse that led to harm of a resident within the past year; and 2) abuse that could have potentially led to harm of a resident in each of the last two years. To ensure CMS is providing the latest information, the icon will be updated monthly, at the same time CMS inspection results are updated. This means consumers will not be forced to wait for CMS’s quarterly updates to see the latest -related information – and nursing homes will not be flagged for longer than necessary if their most recent inspections indicate they have remedied the issues that caused the citations for abuse or potential for abuse and no longer meet the criteria for the icon. This icon will supplement existing information, including the Nursing Home Five-Star Ratings, helping consumers develop a more complete understanding of a facility’s quality.

There are many factors that indicate a nursing home’s quality, and the Star Ratings may not capture some nuances. For example, a nursing home cited for an incident of abuse may have adequate staffing numbers and provide excellent dementia or rehabilitative care. Previously, consumers would clearly see this facility’s performance in these areas through the Star Ratings, but abuse complaint allegation information may not have been as clear. Under the CMS action announced today, this facility would have an alert icon displayed, allowing consumers to see both its Star Ratings and the icon, helping them easily weigh the facility’s quality. In addition, we are continuing our work to improve the usefulness of the Star Ratings.

As you might expect, the industry is not fond of the change.  Calling the alert icon a "Do Not Proceed," alert, industry representatives called for their own "halt" of it's use.  As reported in McKnight's Long-Term Care News:

Mark Parkinson, president and CEO of the American Health Care Association, said the plan should be halted until there is more clarity.

“We support transparency so that potential residents and their families can make an informed decision on care,” Parkinson said in a statement. “We appreciate CMS’ efforts to improve Nursing Home Compare but as we have previously suggested, we believe that CMS should create a standard and rational definition of both abuse and neglect and then report them separately. That would help provide consumers with the information that they need.” 

“In addition, CMS should add customer satisfaction to Nursing Home Compare because that is the best way for consumers to select facilities. It’s surprising that we can look for customer reviews of restaurants and hotels that we select, but that information isn’t available for nursing homes. We should have a way to let families and residents think of the facilities they are considering,” Parkinson added.

Fortunately, we now have better information for consumers than is available for restaurants and hotels, particularly given that the residents of nursing homes, unlike patrons of restaurants and hotels, are not always able or competent to report "bad service."