Wednesday, October 19, 2016

Quick draw litigation

The American Health Care Association has filed suit again the federal government, challenging the prohibition of coerced arbitration agreements in long-term care admissions.

The lawsuit challenges regulations published in the new long-term care regulatory package (

Providers use the arbitration to protect themselves against malpractice and business practices litigation. Providers think the malpractice system is a holy mess (which it is).

Consumer advocates think arbitration is an attempt to deny due process to residents and families (which it is).

U.S. businesses have increased the use of arbitration to avoid the courthouse and to deny due process to customers, employees, patients, etc. The push back is coming from the federal government.

Monday, October 17, 2016

Regulators Gone Wild

Long-term care:

Two weeks ago DHHS-CMS issued long-awaited updates on nursing home regulations.

The package, 700+ pages, is largely updates and clarifications, plus the new compliance standards (which were due March 23, 2013).

Physician Medicare Reimbursement:

Last week the new regulations on physician reimbursement dropped, all 2, 398 pages. Gasp.

The regulations begin a phase-in of the MACRA reimbursement system, replacing the failed SGR.  

In brief the system will evolve from a failed fee-for-service system to a value-based system. Essentially this is a good idea - if it can be implemented.

The feds have already admitted that small and rural physician practices are in a bad spot, and there are phase-in rules.

Much heavy lifting. Stay tuned.


DHHS-CMS  = Department of Health and Human Services, Centers for Medicare and Medicaid Services

MACRA = Medicare Access and CHIP Reauthorization Act of 2015

SGR = sustainable growth rate

Saturday, October 8, 2016

LTCF Mandatory Compliance

The Patient Protection and Affordable Care Act (PPACA or ACA or Obamacare) contained a requirement that long-term care facilities have a compliance program by October 23, 2013.

The regulations were not ready on time.

The regulations were finally dropped into the massive regulations package to be published on October 4, 2016. [Code of Federal Regulations 42.483.35]

If a facility does not have a compliance plan, it should not wait more than a year to comply. In a highly regulated environment enforced by numerous criminal laws and civil sanctions a compliance program has really been necessary all along.

The heart of a compliance program is billing integrity, when you ask the government for a check you certify the billing is accurate. Facilities are subject to the false claims act and the anti-kickback statute plus other civil and criminal penalties.
Billing integrity is not the end of a compliance program. 

Given the massive regulatory program facing LTCFs the program must be broader.

The regulations delineate a minimal standard as well as a standard for groups with five or more facilities. Facilities are free to exceed the minimum expectations and a more robust program is advised.

Is a compliance program more expense and work with no benefit? No, it should be much more. A compliance plan can prevent government sanctions and can also serve as a performance audit for numerous aspects of your operations

The “self-survey” used by many facilities are a preliminary approach to the state survey which is a type of performance audit that ties nicely to a compliance program.

Where to obtain guidance on a compliance program? The DHHS, Office of Inspector General offers direction for some, in the form of a series of guidance documents. []

We can provide consulting and written direction on successful compliance programs.