Document Category:
State: District of Columbia
Subject Matter: Healthcare Reform
Document Title:
Comments:

health care reform

SENATE VERSION

Earlier this week, Senate Majority Leader Harry Reid (D-NV) introduced the Senate’s version of health care reform, thePatient
Protection and Affordable Care Act of 2009 (PPACA).

The legislation does not have a Senate bill number but will be
referenced as an amendment to the unrelated H.R. 3590.  The next few
days will feature significant political
debate as Senator Reid works to bring the bill to the floor which is
not expected to occur until Tuesday, November 24 and given the holiday,
serious debate is not expected to begin until the Senate returns after
the Thanksgiving holiday. While not as drastic
as the House version, the Senate bill provisions will have significant
impact on long term and post-acute care providers. To view a
preliminary list of some of the items addressed by the 2,074 page bill,
click
here
.
A more through analysis will be provided in the coming days. 

HOUSE VERSION

The Nursing Home Transparency provisions of theAffordable Health Care for America  Act
(H.R. 3962), which recently passed the House of Representatives,
includes numerous new disclosure mandates which skilled nursing
facilities and nursing facilities (SNFs/NFs)
must comply with in order to receive crucial federal funding for the
provision of services. AHCA has completed a thorough analysis of the
specific provisions contained in H.R. 3962 and has asked state
affiliates to bring specific attention to provisions relating
to disclosure and increased civil money penalties (CMPs).  Under the House health reform bill,
SNFs/NFs will be required to disclose information on the facilities’ governing entities as well as ownership parties  equal to or more than 5 percent of the total property.  Additionally, the bill increases
CMPs for deficiencies at all levels of scope and severity.
The House bill states that the Secretary of Health and Human Services
may increase
CMPs where it can be established that a deficiency was a
cause of death of a resident in a facility up to $100,000 and provides
additional authority to raise
CMPs up to $25,000 in the case of actual harm or immediate jeopardy deficiency. Additionally, in each case of “any other deficiency,”
the Secretary can impose penalties from $250 up
to $3,050. While CMP reductions are possible, the bill states that they
may not be reduced by more than 50 percent – but only in select
situations. Reductions would not be made for deficiencies citing an
immediate jeopardy or actual harm violation, or if the
deficiency is a repeat deficiency. The Secretary is also authorized
collect
CMPs
immediately, place them in an escrow account until completion of the
IDR  process, or the date that is 90 days after the date of the
imposition of the CMP. More specifics regarding H.R. 3962’s changes to
CMPs are included in the
detailed analysis
.
(Included below) AHCA and other representatives of the long term care
profession have been in active discussions with legislators and their
staffs regarding the Transparency proposals in order to lessen these
onerous provisions. AHCA
assures us they will continue to work with the House and Senate as
healthcare reform professes to try to achieve the best possible
outcome.

In-Depth Analysis of Nursing Home Transparency Provision in H.R. 3962

**Important note regarding this analysis**

While the provisions contained in the recently passed House bill (H.R. 3962) regarding

nursing
home transparency are onerous, AHCA and other representatives of the long

term
care and post-acute care profession have been in active discussions with legislators

and
their staffs regarding these proposals and has been successful in securing

amendments
with Senate Finance Committee to improve the increased transparency

requirements
for nursing homes. ACHA supports the overall goal of promoting

transparency
and has been engaged in a broad range of activities which seek to enhance

the
overall transparency of long term care provider performance. As the bill progresses

towards
conference committee, AHCA will work with House and Senate conferees to

ensure
the best possible outcome.

TITLE IV—QUALITY; Subtitle B–Nursing Home Transparency

PART 1–Improving Transparency of Information on Skilled Nursing Facilities,

Nursing
Facilities, and Other Long-Term Care Facilities

Section 1411: Required disclosure of ownership and additional
disclosable parties

• Disclosure: A SNF/NF must make all of the following information available for

submission to the Secretary, the Inspector
General of the Department of Health and

Human Services, the State in which the facility is located, and the State long-term

care ombudsman in the case where the Secretary,
the Inspector General, the State, or

the State long-term care ombudsman that
requests such information: 1) information

on the members of the governing body of
the facility, including names, dates, titles,

period of service of each member; 2) each
person or entity who is an officer, director,

member, partner, trustee, ormanaging employee of the facility, including the name,

title, and period of service of each such
person or entity; 3) each person or entity who

is anadditional disclosable partyof the facility; and 4) information on the

organizational
structure
and the relationship of each person and entity. The facility

must also make this information available
to the public upon request and update such

information as may be necessary to reflect
changes.

• The term `managing employee’ means an individual (including a general manager,

business manager, administrator, director,
or consultant) who directly or indirectly

manages, advises, or supervises any element
of the practices, finances, or operations

of the facility.

• “Additional
Disclosable Party:” The definition includes an entity that provides

policies or procedures for any of the operations
of the facility; or provides financial or

cash management services to the facility
or provides management or administrative

services, management or clinical consulting
services, or accounting or financial

services to the facility. It also includes
those entities involved in operating or

managing the facility, leasing property
or employees to the facility or owns interest

equal to or exceeding 5% of value of real
property, lending to the facility (if the

amount exceeds $50,000)

• Organizational Structure: the definition of organizational structure includes a

corporation, the officers, directors, and
shareholders of the corporation who have an

ownership
interest
in the corporation which is equal to or exceeds 5 percent; a

limited liability company, the members
and managers of the limited liability company

(including, as applicable, what percentage each member and manager has of the

ownership interest in the limited liability
company); a general partnership, the

partners of the general partnership; a
limited partnership, the general partners and any

limited partners of the limited partnership
who have an ownership interest in the

limited partnership which is equal to or
exceeds 10 percent; a trust, the trustees of the

trust; an individual, contact information
for the individual and any other entities as the

Secretary determines appropriate.

• The “Special Rule”: The definition of ownership or control interest includes direct or

indirect interests, including such interests
in intermediate entities; and includes the

owner of a whole or part interest in any
mortgage, deed of trust, note, or other

obligation secured, in whole or in part,
by the entity or any of the property or assets

thereof, if the interest is equal to or
exceeds 5 percent of the total property or assets of

the entirety.

• Reporting: Facilities required
to certify to Secretary and IG that information

submitted upon request is "accurate and
current"

AHCA positions on disclosure requirements

With respect to provisions of the draft bill requiring the disclosure of ownership and

additional
disclosable parties information, we propose that the disclosure of ownership

requirements
in this bill be revised as they will not serve to identity nor improve the

quality
of long term care quality and services. AHCA strongly believes that the bill

should
be modified to
:

•Delete the “Special Rule” for
SNFs and NFs, on ownership and control interests

as
these requirements are already in existing law (Section 1124(b)(3)(A) of the

Social Security Act (SSA));

•Revise the definition of “disclosable party” to include those entities involved in

operating
or managing the facility, leasing property or employees to the facility,

lending
to the facility (if the amount exceeds $50,000), and who own interest

equal
to or exceeding 5% of value of real property,

•For the purposes of reporting: require SNFs/NFs to certify that that information

disclosed
is complete and current to the best of the SNF’s/NF’s knowledge.

•“Additional disclosable party” should not include disclosure of an entity that

provides
financial or cash management services to the facility, or accounting or

financial
services to the facility.

•Further, we believe that definitions contained in this bill should conform to

definitions
that are currently provided in existing law. AHCA believe that the bill

should
be amended to use the definition of “managing employee” in existing law

(Section 1126(b) of the SSA)

Section 1412: Accountability Requirements

Compliance Program

• One year after publication of the regulations established in this bill in the Federal

Register, an entity that operates or controls a SNF/NF must have in operation a

compliance and ethics program that is effective
in preventing and detecting criminal,

civil, and administrative violations under
this Act and in promoting quality of care

consistent with such regulations.

• Not later than 2 years after enactment of the bill, the Secretary, in consultation with

the Inspector General of the Department
of Health and Human Services, will

promulgate regulations for compliance and
ethics programs for SNFs/NFs, this may

include a model compliance program.

• The specific elements or formality of a program may vary with the size of the

organization, such that larger organizations
should have a more formal and rigorous

program.

• Specific elements of the program include:

1) The organization must have established compliance standards and procedures

to be followed by its employees, contractors,
and other agents that are reasonably

capable of reducing the prospect of criminal,
civil, and administrative violations

under this Act.

2) High-level personnel of the organization must have been assigned overall

responsibility to oversee compliance with
standards and procedures and have

authority to assure compliance.

3) The organization must not delegate substantial discretionary authority to

individuals whom the organization knew,
or should have known had a propensity

to engage in criminal, civil, and administrative
violations.

4) The organization must take steps communicate standards and procedures to all

employees and other agents (i.e. establish
training programs or disseminate

publications.

5) The organization must utilize monitoring and auditing systems designed to

detect criminal, civil, and administrative
violations by employees, and a system

for employees to report violations without
fear of retribution.

6) The organization must establish consistent enforcement of standards through

appropriate disciplinary mechanisms.

7) After an offense has been detected, the organization must take all reasonable

steps to respond including repayment of
any funds to which it was not entitled.

8) The organization must periodically undertake reassessment of its compliance

program.

Quality Assurance and Performance Improvement Program (QAPI)

Under the QAPI program, the Secretary shall establish standards relating to skilled

nursing facilities and nursing facilities,
including multi-unit chains of such facilities, and

provide technical assistance to facilities
on the development of best practices in order to

meet these standards.

GAO Study on Nursing Facility Undercapitalization

The Comptroller General of the
United States shall conduct a study and submit to

Congress a report on the study that examines the extent to which corporations that own or

operate large numbers of nursing facilities,
taking into account ownership type (including

private equity and control interests),
are undercapitalizing such facilities and the effects

of such undercapitalization on quality
of care, including staffing and food costs, at such

facilities; and options to address such
undercapitalization, such as requirements relating

to surety bonds, liability insurance, or
minimum capitalization.

AHCA positions on accountability requirements

•Regarding the design of regulations relating to compliance and ethics programs,

we
suggest that the HHS Secretary develop specific elements of a compliance

program
that consider the size of the organizations, including allowing

organizations
with fewer than 5 facilities to have more streamlined compliance

programs.

•We would also suggest that the bill clarify that the Quality Assurance and

Performance Improvement (QAPI) plans expanded provisions would not change

existing
law prohibiting the Secretary or a State from requiring disclosure of

QAPI committee records as prohibited under SSA 1819(b)(1)(B) and

1919(b)(1)(B)

Section 1413 Nursing Home Compare Medicare Website

Additional Information to be Included on Website

• Information on the Special Focus Facility program with respect to, and the names

and locations of, those facilities that
1) were newly enrolled in the program; 2) are

enrolled in the program and have failed
to significantly improve; 3) are enrolled

in the program and have significantly improved;
4) have graduated from the

program; and 5) have closed voluntarily
or no longer participate under this title.

• Staffing data for each facility (including resident census data and data on the

hours of care provided per resident per
day) including information on staffing

turnover and tenure, in a format that is
clearly understandable to consumers and

allows such consumers to compare differences
in staffing between facilities and

State and national averages for the facilities.

• The information will include differences in types of staff (such as training

associated with different categories of
staff); the relationship between nurse

staffing levels and quality of care; and
an explanation that appropriate staffing

levels vary based on patient case mix.

• Links to State internet websites with information regarding State survey and

certification programs, links to Form 2567
State inspection reports, information to

guide consumers in how to interpret and
understand such reports, and the facility

plan of correction or other response to
such report.

• A standardized complaint form including explanatory material on what complaint

forms are, how they are used, and how to
file a complaint with the State survey

and certification program and the State
long-term care ombudsman program.

• Summary information on the number, type, severity, and outcome of substantiated

complaints.

• The number of adjudicated instances of criminal violations by employees.

•
that were committed insidethe facility that were the violations or crimes of abuse,

neglect, and exploitation, criminal sexual
abuse, or other violations or crimes that

resulted in serious bodily injury; and
he number of civil monetary penalties levied

against the facility, employees, contractors,
and other agents.

• Any other information that the Secretary determines appropriate.

AHCA Position on Nursing Home Compare Medicare Website

AHCA strongly believes that the bill should be modified in the following manner:

•The Secretary should require that Nursing Home Compare Medicare Website

should
include links to Form 2567 State inspection reports only after plans of

correction
have been included in these reports, and require that all information

be
updated in a timely fashion.

•The Secretary should encourage that all state information linked to the website

also
be current and up-to-date.

•Any information on deficiencies levied against
facilities, that are currently under

appeal,
should only be included on the website once all appeals are resolved and

final.

•We support an aggregate optimal staffing standard based on acuity to provide

quality
care to our patients. We are committed to working with government and

consumer
advocates to establish this aggregate optimal staffing standard and

method.
We will accept and support the “right” number concurrent with a public

policy
to fully fund this quality level to ensure that the long term care profession

recruits,
retains and rewards qualified people.

Section 1414: Reporting of Expenditures

Reporting of Direct Care Expenditures

• Skilled nursing facilities shall separately report expenditures for wages and benefits

for direct care staff, breaking out (at
a minimum) registered nurses, licensed

professional nurses, certified nurse assistants,
and other medical and therapy staff).

• The Secretary, in consultation with private sector accountants experienced with

Medicare and Medicaid nursing facility home cost reports, shall redesign such reports

• The Secretary, working in consultation with the
MedPAC, the Inspector General, and

other expert parties the Secretary determines
appropriate shall take the expenditures

listed on cost reports categorize such
expenditures into the following functional

accounts: Spending on direct care services
(including nursing, therapy, and medical

services);spending on indirect care (including
housekeeping and dietary

services);capital assets (including building
and land costs); administrative services

costs.

Section 1415: Standardized Complaint Form

Complaint Form

• The Secretary shall develop a standardized complaint form for use by a resident (or a

person acting on the resident’s behalf)
in filing a complaint with a State survey and

certification agency and a State long-term
care ombudsman program with respect to a

skilled nursing facility/nursing facility.

• The State must make the standardized complaint form available upon request to a

resident of a skilled nursing facility;
any person acting on the resident’s behalf; and

any person who works at a skilled nursing
facility or is a representative of such a

worker.

Complaint Resolution Process

• The State must establish a complaint resolution process in order to ensure that a

resident, the legal representative, or
other responsible party is not retaliated against if

he/she complains, in good faith, about
the quality of care or other issues relating to

the facility. The State must also ensure
that the facility is not retaliated against if the

worker has complained, in good faith, about
quality of care or services.

Whistleblower Protection

• No person who works at a SNF/NF may be penalized, discriminated, or retaliated

against with respect to any aspect of employment
because the person (or anyone

acting at the person’s request) complained,
in good faith, about the quality of care or

services provided by a facility.

• A facility may not file a complaint or a report against a person because the person

complained in good faith.

• Any person who has faced a violation of these whistleblower protections, may file a

civil action to obtain all appropriate
relief; including reinstatement, reimbursement of

lost wages, compensation, and benefits,
and exemplary damages, as well as costs of

suit and reasonable attorney and expert
witness fees.

• The rights protected by this paragraph may not be diminished by contract or other

agreement, and nothing in this paragraph
shall be construed to diminish any greater or

additional protection provided by Federal
or State law or by contract or other

agreement.

• Each facility must post a sign (in a form specified by the Secretary) specifying the

rights of persons including a statement
that an employee may file a complaint with

the Secretary against a facility that violates
theses provisions.

AHCA position on standardized complaint form provisions

•While we support a new standardized complaint form and process available to

both
consumers and employees, we simply urge any new forms and processes be

integrated
with current requirements to eliminate duplication that will add

administrative
cost and more importantly confusion for those filing complaints.

•The whistleblower provisions of this bill should be removed. We believe that the

overly
broad whistleblower protections in this bill will have the unintended

consequence
of making it incredibly difficult for an employer to not only

discipline
an employee, but could actually impact the reporting or filing of a

complaint
against a worker to appropriate State professional disciplinary

agencies.
We also have some concern about the whistleblower provisions effect

on
current employer/employee contractual mediation and arbitration dispute

agreements.

Section 1416: Ensuring Staffing Compatibility

• Secretary shall require a SNF/NF to electronically submit to the Secretary direct care

staffing information (including information
with respect to agency and contract staff)

based on payroll and other verifiable and
auditable data in a uniform format

(according to specifications established by the Secretary in consultation with other

programs, groups, and parties).

• Staffing information must specify the category of work a certified employee

performs; include resident census data
and info on resident case mix; include a

regular reporting schedule; include info
on employee turnover and tenure and on

hours of care provided by each category
of certified employees.

Section 1417: Nationwide Program
For National And State Background Checks On

Direct Patient Access Employees
Of Long-Term Care Facilities And Providers

• The Secretary shall establish a program to identify efficient, effective, and

economical procedures for long term care
facilities or providers to conduct

background checks on prospective direct
patient access employees on a nationwide

basis.

• The Secretary will enter into agreements with each State that agrees to conduct

background checks under the nationwide
program on a statewide basis and that

submits an application to the Secretary
containing such information specified by

Secretary. States may agree to reimburse
long-term care facilities/providers for all

costs attributable to conducting background
checks and screening under the

Nationwide Criminal Background Check Program.
Federal funding available to the

states is limited to the amounts available
under the program funding provision of this

title ($160,000,000).

Fingerprint Checks

• States must fingerprint check using the Integrated Automated Fingerprint

Identification System of the Federal Bureau of Investigation.

State Requirements

• Participating States will be responsible for monitoring compliance with the

requirements of the nationwide program
and have procedures in place to conduct

screening and criminal or other background
checks; monitor compliance by long-term

care facilities and providers; provide
for a provisional period of employment of a

direct patient access employee, not to
exceed 60 days, pending completion of the

required criminal history background check;
provide an independent process by

which a provisional employee or an employee
may appeal or dispute the accuracy of

the information obtained in a background
check; and provide for the designation of a

single State agency as responsible for
overseeing the coordination, privacy and

immediate reporting of any State and national
criminal history background checks

requested by a long-term care facility
or provider.

Payments/Federal Match

• The payment amount to each State that the Secretary enters into an agreement shall be

3 times the amount that the State guarantees to make available.

Report

• Not later than 180 days after the completion of the nationwide program, the Inspector

General of the Department of Health and Human Services shall submit a report to

Congress containing the results of the evaluation reviewing the procedures and costs

of the program.

AHCA position on National and State background checks

AHCA/NCAL supports this provision; however, we are urging the Committee to provide

additional
guarantees that States will cover all the costs of these checks for both

SNFs/NFs
and ALFs to ensure the providers do not face an unfunded mandate when

conducting
criminal background checks

PART 2–Targeting Enforcement

Section 1421: Civil Money Penalties

• The Secretary may impose a civil money penalty in theapplicable per instance or

per
day amount
for each day or instance, respectively, of noncompliance (as

determined appropriate by the Secretary)

o In the case where the deficiency is found
to be a direct proximate cause of

death of a resident of the facility, an
amount not to exceed $100,000.

o In each case of a deficiency where the
facility is cited for actual harm or

immediate jeopardy, an amount not less
than $3,050 and not more than

$25,000

•
 In each case ofany other deficiency, an amount not less than $250 and not to

exceed $3050.

• The Secretary may reduce civil money penalties in the case where a facility
selfreports

and promptly corrects a deficiency within
10 days. The Secretary may reduce

the amount of the penalty imposed by not
more than 50 percent. Reductions would

not be made for self-reported deficiencies
citing an immediate jeopardy or actual

harm violation, or if the penalty is imposed
for “of any other deficiency” as

determined appropriate by the Secretary,
or if the deficiency is a repeat deficiency.

• Thirty days after imposition of civil penalty, the bill gives the facility an opportunity

to participate in independent formal dispute
resolution, but this opportunity does not

affect the responsibility of the State
survey agency for making final recommendations

for penalties.

• In a case where the penalty is imposed for each day of noncompliance, the Secretary

will not impose a penalty for the beginning
on the initial day of the imposition of the

penalty and ending on the day on which
the informal dispute resolution process is

completed.

• The Secretary would have the authority to place civil monetary penalties (CMPs) in

an escrow account following completion
of the informal dispute resolution process, or

the date that is 90 days after the date
of the imposition of the CMP.

• The Secretary would be authorized to use a portion of collected
CMPs to fund

activities that benefit residents. Such
funds would also be used for facility

improvement initiatives approved by the
Secretary, including joint training of facility

staff and surveyors; technical assistance
for facilities implementing quality assurance

programs.

AHCA position on civil money penalties

•We oppose the increase of civil money penalties as unnecessary, punitive and as we

believe
that such increases will not serve as a motivation for improving facility

behavior.
AHCA is particularly concerned that increasing monetary fines for

deficiencies
at all levels of scope and severity drains the facility of resources

available
for patient care. While we agree that there should be accountability, there

is
no clear evidence to suggest that increasing civil penalties will serve as a

deterrent.

•AHCA supports the concept of reduced
CMPs for self-reporting of deficiencies and

that
a portion of collected CMPs to fund activities that benefit residents and promote

quality.

Section 1422: National Independent Monitor Pilot Program

• Requires Secretary, along with OIG, to establish a pilot program to develop, test,

and implement use of independent monitoring
program to oversee interstate and

large intrastate chains of skilled nursing
facilities and nursing facilities.

• The Secretary shall evaluate chains selected to participate in the pilot program

based on criteria selected by the Secretary,
including where evidence suggests that

one or more facilities of the chain are
experiencing serious safety and quality of

care problems. Such criteria may include
the evaluation of a chain that includes

one or more facilities participating in
the `Special Focus Facility’ program or one

or more facilities with a record of repeated
serious safety and quality of care

deficiencies.

• An independent monitor that enters into a contract with the Secretary to

participate in the conduct of such program
shall conduct periodic reviews and

prepare root-cause quality and deficiency
analyses of a chain to assess if facilities

of the chain are in compliance with State
and Federal laws and regulations

applicable to the facilities; undertake
sustained oversight of the chain, whether

publicly or privately held; analyze the
management structure, distribution of

expenditures, and nurse staffing levels
of facilities of the chain in relation to

resident census, staff turnover rates,
and tenure; report findings and

recommendations with respect to such reviews,
analyses, and oversight to the

chain and facilities of the chain, to the
Secretary and to relevant States; and

publish the results of such reviews, analyses,
and oversight.

• Chains would be responsible for a portion of the costs associated with

appointment of independent monitors.

AHCA position on National Independent Monitor Pilot Program

•We recommend that National Independent Monitor Pilot Program should be

established
as a demonstration project rather than a pilot program. This method will

allow
Congress to review and elect whether or not to reauthorize continuation of

such
a program.

•In order to promote participation in the program, facility-specificfindings and

recommendations
should be reported to the facility and the Secretary on a

confidential
basis.

•Any costs associated with participation in the pilot should not be borne by the facility.

Section 1423 Notification of Facility Closure

• Any individual who is the administrator of a SNF/NF must submit to the Secretary,

State long-term care ombudsman, residents of the facility, and the legal

representatives of such residents a written
notice of impending closure. The

administrator must include in the notice
a plan for the transfer and adequate

relocation of the residents of the facility
by a specified date prior to closure that has

been approved by the State, including assurances
that the residents will be transferred

to the most appropriate facility or other
setting in terms of quality, services, and

location, taking into consideration the
needs and best interests of each resident.

• Before a facility closes, all residents of the facility must have been successfully

relocated to another facility or an alternative
home and community-based setting.

• The Secretary may, as the Secretary determines appropriate, continue to make

payments during the period beginning on
the date such notification is submitted and

ending on the date on which the resident
is successfully relocated.

Part 3–Improving Staff Training

Sections 1431 -1433

In addition to the requirements listed above the house bill also includes requirements for

dementia and abuse prevention training,
requirements for a government study and report

on training required for certified nurse
aides and supervisory staff, and qualifications of

director of food services of a skilled
nursing facility or nursing facility. For more

information on these training programs
please contact AHCA.

Ric Henry |  President

Pendulum, LLC (formerly LTC Alliance, LLC)

505-889-8262 or 888-815-8250  |  Cell: 505-710-9075

ric.henry@WeArePendulum.com  | http://www.WeArePendulum.com

Balancing Risk and Defensibility in the Healthcare Setting

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Document Author: Ric Henry
Firm/Company: Pendulum
Document Date: January 1, 1970
Search Tags: Obama long-term care reform
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