PPS Alert for Long

PPS Alert for Long
An Integrated Approach to the LTC Industry
PPS Alert for
Volume 16
Issue No. 10
Redesigned Medicare Summary Notices
add to focus on fraud and abuse
Learn more about the changes and
how they aim to help beneficiaries
identify fraudulent billing practices.
GAO report reveals flaws in manual
medical review process
A recent report shows that Medicare
Administrative Contractors lacked guidance, but fails to include the provider’s
and beneficiary’s perspective.
HHS proposes updates to LTC
Ombudsman program
The changes aim to strengthen the program and consistency between states.
MDS professor
October 2013
CMS issues final payment
changes for fiscal year 2014
The final regulation is almost identical to the proposed
rate changes, with a 1.3% overall increase and an
­addition to the MDS
If you hate surprises, then you were probably pleased with the final
rule for the prospective payment system and consolidated billing for
SNFs for fiscal year (FY) 2014. Released by CMS on August 1, the final
rule is almost identical to the proposed changes that were released in
Although the proposed rate increase was originally set at 1.4%, the
final rule rounded out just shy at 1.3% (2.3% update factor, minus 0.5%
market basket forecast error or adjustment, minus 0.5% multifactor
productivity [MFP] adjustment as part of the Affordable Care Act).
However, that 1% cut translates to a $30 million overall decrease.
“There are usually a lot of changes from the proposed rule to the
final rule, but this time it was almost exactly the same,” says Diane L.
Brown, BA, CPRA, director of postacute education at HCPro, Inc., in
Danvers, Mass.
In fact, given the fact that the sequestration took a 2% cut out of the
Medicare budget back in April, many view this payment update as a
neutral change.
Think you’re an MDS expert? Test your
knowledge with our quiz.
This Q&A explains the role of a
unscheduled assessment.
$1.7 billion
The amount of mandatory funding the Affordable Care Act (ACA) provided for both 2010
and 2011, including discretionary funding of
$311 million for 2010 and $561 million for
2011, all of which went toward fraud enforcement efforts in a variety of federal programs,
including CMS and the Office of Inspector
$14.9 billion
The amount that the Obama administration
(over the past four years) has recovered in
healthcare fraud judgments, settlements,
and administrative impositions.
The number of providers and suppliers, since
the passage of the ACA in March 2011, that
have had their ability to bill within the Medicare
program revoked by CMS. Felony convictions,
wrong operational addresses, or failure to
comply with CMS regulations were among the
primary reasons for dismissals.
Source: CMS.
PPS Alert for Long-Term Care
October 2013
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editorial advisory board
Assoc. Editorial Director
Todd Hutlock
[email protected]
Contributing Editor
Evan Sweeney
Melissa D’Amico
[email protected]
Diane L. Brown,
Regulatory Specialist and
Boot Camp Instructor
HCPro, Inc.
Danvers, Mass.
Mary C. Malone, JD
Healthcare Attorney,
Hancock, Daniel, Johnson
& Nagle, PC
Richmond, Va.
Sandra Fitzler
Senior Director of Clinical
American Health Care
Washington, D.C.
Maureen McCarthy, RN,
Vice President of Clinical
National Healthcare
Goshen, Conn.
Bonnie G. Foster,
Long-Term Care Consultant
Columbia, S.C.
Cindy Frakes
Winter Meadow
Homes, Inc.
Topeka, Kan.
Julia Hopp, MS, RN,
Executive Vice President of
Paramount Health Care
Garden Ridge, Texas
Frosini Rubertino, RN,
Executive Director
Training in Motion, LLC
Bella Vista, Ark.
Holly F. Sox, RN, BSN,
MDS Coordinator
Presbyterian Communities
of South Carolina
Lexington, S.C.
Steven B. Littlehale,
Executive Vice President,
Healthcare Chief
Clinical Officer
PointRight, Inc.
Lexington, Mass.
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Quick Hits
from the field
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“Beneficiaries are a
very important line of
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identity has been stolen,
[the Medicare Summary
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way it’s recovered. It’s
about taking more time
to educate them on what
is truly fraud and abuse,
how to report it, and
making that notice easy to
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Resident quality of care is always at the
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so they must find ways to improve quality
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Seminar participants will be able to:
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October 2013
Some of the other changes included in the final rule:
Monitoring the impact of policy changes from the
FY 2012, including:
–– Recalibration of FY 2011 SNF parity adjustment
–– Allocation of group therapy time across group
(allows only 25% to be captured for each of four
–– Implementation of MDS 3.0 changes (includes
the Change of Therapy [COT] OMRA assessment, which intended to more accurately capture
therapy services)
Revising and rebasing the SNF market basket index from FY 2004 to FY 2010, which includes additional components and details to cost
Adding a new MDS item (00420, Distinct Calendar Days of Therapy), which aligns the MDS and
RUG process to ensure high-level therapy is provided five days per week. Previously, the payment
grouper would add days of therapy regardless of
whether those services were provided on distinct
CMS included a PPS AIDS payment add-on. Currently, SNFs that care for residents with AIDS or
active HIV add an ICD-9 code 042 to the UB-04
form, which activates the 128% add-on. After the
transition to ICD-10, CMS will link the add-on to
code B20.
Although there are many significant changes to
the final rule, the regulation does give an inside peek
into the process that CMS uses regarding payment
updates, says Maureen McCarthy, vice president
of clinical reimbursement at National HealthCare
Associates in Lynbrook, N.Y., and president at Celtic
Consulting, LLC, in Goshen, Conn.
“I like to know what makes up the market basket,”
she says. “Some coordinators and nurses really don’t
necessarily understand what the market basket is,
and I really like to get in to the details of that. You’re
looking at wages and salary, employee benefits,
contract labor, pharmaceuticals, liability insurance
from a cost report, but they weigh it all a little bit
Although it’s likely the final rule will cause a lot
of commotion among SNFs, providers should begin
PPS Alert for Long-Term Care
reviewing the final rule and at least have some
discussions about preparing for the effective date of
October 1.
MDS addition
The addition of the MDS code to track distinct
therapy days should not be a huge adjustment for SNFs
since it doesn’t change any of the therapy requirements
that already exist; it simply streamlines the MDS form
to capture more specific data.
For example, if a resident receives physical therapy
three times a week and occupational therapy two
times a week, MDS software will categorize it as five
distinct therapy days, even if that therapy was coordinated over the course of three days. CMS clarifies
that low rehab is classified by three distinct therapy
days. With the addition of the MDS code, software
programs will be able to track distinct therapy days
without inadvertently placing residents into a higher
RUG category.
The ruling will probably have the biggest impact on
residents categorized under rehab medium, which requires five distinct therapy days, says Cheryl Field,
vice president of healthcare at ­PointRight, Inc., in
Lexington, Mass. Since the proposed rule, PointRight
reviewed its database and found that the rehab medium category makes up about 10% of its patients.
“The take-home message to providers really hasn’t
changed,” she says. “It just requires for that lower
intensity group that there is conversation and planning around what days of the week treatment will
be provided if you’re not providing five-day-a-week
McCarthy says she is concerned about residents that
don’t meet the qualifications for a short stay, but still
need rehab. This could also affect residents that have
just been admitted and are just gearing up for therapy,
or those that are gearing down because they are being
“I’m concerned that those residents will potentially
fall into the lower 14 nursing categories where some of
the MACs out there do an automatic ADR just because they fell into the lower level category,” she says.
“They may be appropriately working this patient up
to a ­certain level, but didn’t have enough days where
therapy was provided, so they ended up falling into that
© 2013 HCPro, Inc. For permission to reproduce part or all of this newsletter for external distribution or use in educational packets, contact the Copyright Clearance Center at copyright.com or 978-750-8400.
PPS Alert for Long-Term Care
October 2013
lower nursing category. I’m worried about provider liability in those circumstances.”
McCarthy also notes that CMS provided a clarification regarding “Medicare holidays,” indicating
that it’s a misconception that CMS provides specific
breaks in therapy for a prescribed list of national
holidays. “You can have up to a two-day miss for
therapy, but the holiday would be included in that twoday miss,” she says.
For example, Labor Day would not count as a break
in coverage. SNFs and therapists need to coordinate
therapy time either on Saturday or Monday of that
three-day weekend in order to meet the requirements
for distinct therapy days.
A number of commenters also brought up the issue
of non-therapy ancillaries (NTA), which called for CMS
to expedite the research necessary for a new method to
pay for NTAs cared for by SNF providers. CMS responded without any specific changes, but that it was
looking forward to working with providers and stakeholders in the future. However, Field doesn’t expect
any upcoming changes.
“I think the reality is with the Accountable Care
Act and the movement towards managed care and
bundles and the profit-sharing model, there will be
no reason to talk about non-ancillary therapy,” she
says. “It’ll be part of the bundle. I think they are going to wait for the bundles to show their validity and
MDS professor answer key
Below are the answers to the MDS professor on p. 11:
1. d. MDS data is not used to determine Medicare Part B
2. a. This is usually the correct choice when a resident goes out to the hospital and the Admission Assessment has already been completed. A resident’s
bedhold status is not taken into consideration when
completing a discharge tracking form.
3. d. All of the above.
4. d. All of the above.
5. c. Five to seven.
6. b. 15.
if it’s a more efficient and effective way of providing
care, then they won’t have to talk about this nonancillary component.”
Evaluating the 2012 “double hit”
In the final rule, CMS also evaluated the potential
“double hit” from the FY 2011 SNF parity adjustment
and policy changes that included the COT OMRA. At
least one commenter asked CMS to reevaluate the
negative impacts of COT OMRA as “unnecessary and
inflexible.” CMS responded that COT OMRA makes up
just 11% of all assessments completed for SNF residents,
which it doesn’t believe makes up a significant burden
for providers. In fact, CMS argued, “the COT OMRA has
helped ensure greater accuracy of SNF payments and
ensure that providers are ­appropriately reimbursed for
the level of care delivered to their residents.”
McCarthy argues that although 11% may seem low, it
may represent a significant workload for small providers.
“Those are 11% more assessments than we did in the
past,” she says. “It’s not a large number, but it’s a large
addition for an MDS coordinator who is the only one in
the building and now has to increase her productivity
by 11%. They are taking into consideration the numbers
of MDSs, but when you also add in discharge MDS and
change of therapy that’s a significant increase in workload for the average MDS coordinator.”
How to prepare
Fortunately, SNFs probably won’t need to change
much in their own system to prepare for the updated
payment system. Providers should ensure they adjust
their software to include the additional MDS code
for distinct therapy days, but they shouldn’t need to
change much in terms of policies or procedures.
However, SNFs should discuss and review the updates
through their compliance and ethics program and at least
have a conversation about the details of the final rule,
particularly regarding distinct therapy days, Field says.
“They could simply add an agenda item to look at the
rehab mediums or the unique days of the week that
therapy is provided,” she says. “They could certainly
add that to their compliance checks and their month
end checks that are supporting their compliance
initiatives. It’s just one more thing they can start
monitoring within themselves.” H
© 2013 HCPro, Inc. For permission to reproduce part or all of this newsletter for external distribution or use in educational packets, contact the Copyright Clearance Center at copyright.com or 978-750-8400.
October 2013
PPS Alert for Long-Term Care
Redesigned Medicare Summary Notices add to a
growing focus on fraud and abuse
Simplified notices aim to help beneficiaries identify fraudulent billing as the
­crackdown on Medicare fraud and false claims continues
If 2013 has shown us anything, it’s that the government is dead serious about reducing Medicare fraud,
and they’ve decided to attack the issue from all angles.
In June, CMS announced that it would be rolling out
a new, redesigned Medical Summary Notice (MSN), an
additional effort by the Obama administration to eliminate fraud, waste, and abuse. The redesign will simplify
the notice, making it easier for beneficiaries to interpret
their Medicare benefits and possibly uncover instances
of fraud and abuse by providers.
“The new Medicare Summary Notice gives seniors
and people with disabilities accurate information on
the services they receive in a simpler, clearer way,”
CMS Administrator Marilyn Tavenner said in a press
release. “It’s an important tool for staying informed on
benefits, and for spotting potential Medicare fraud by
making the claims history easier to review.”
This is a welcomed and long-overdue change for
beneficiaries, says Wayne van Halem, CFE, AHFI,
president of The van Halem Group, LLC, in Atlanta.
For years, health experts and beneficiaries have been
asking for changes that would simplify MSNs. These
notices should add another layer of fraud detection, but
more importantly, it will help Medicare beneficiaries
better understand their coverage. Even those wellversed in Medicare language and regulation found the
previous notices difficult to interpret.
“I don’t know if you’ve seen the notice, but they are
fairly complex and difficult to understand,” he says.
“Most patients get them, and even me, as someone who
has worked with Medicare and deals with it on a regular basis, I find it difficult to read at times. Certainly
someone with no experience in this realm would see
this and wouldn’t know what to do with it.”
The simpler format will also provide an additional avenue in which the government can identify or investigate
instances of fraud. “Beneficiaries are a very important
line of defense,” van Halem says. “Particularly in situations where their identity has been stolen, that ­notice
may be the only way it’s recovered. It’s about taking more
time to educate them on what is truly fraud and abuse,
how to report it, and making that notice easy to understand. I think it will result in more solid information
coming from beneficiaries that could help uncover fraud;
I just don’t know what took them so long to do this.”
While the changes are certainly useful in helping
beneficiaries better understand their bill, they could
also prompt more frivolous and unnecessary fraud
investigations, says George Breen, a partner with
Epstein Becker Green in Washington, D.C.
“It has the potential to encourage over-reporting,
putting providers in the situation where they face the
potential for audits or investigations without a legitimate factual basis and to incur expenses that are totally
unnecessary,” he says.
Fraud detection over the last year
The format change to the MSN is just the most recent
tactic the government has utilized to uncover instances
of fraud and abuse. Over the last year, various regulation changes and calls for increased oversight have put
fraud and abuse at the forefront. Below is a list of issues
to which SNFs need to pay particular attention.
• The Affordable Care Act (ACA): Although
most of the discussions about the ACA have revolved
around beneficiary coverage and the impact it will have
on employers and taxpayers, the ACA includes very aggressive spending on identifying Medicare fraud:
–– The ACA provided mandatory funding of $1.7 billion for both fiscal year 2010 and 2011, including
discretionary funding of $311 million for FY 2010
and $561 million for FY 2011, all of which went
toward fraud enforcement efforts in a variety of
federal programs, including CMS and the Office
of Inspector General.
–– Over the past four years, the Obama administration has recovered over $14.9 billion in
healthcare fraud judgments, settlements, and
© 2013 HCPro, Inc. For permission to reproduce part or all of this newsletter for external distribution or use in educational packets, contact the Copyright Clearance Center at copyright.com or 978-750-8400.
PPS Alert for Long-Term Care
October 2013
­ dministrative impositions, according to CMS.
–– Since the passage of the ACA in March 2011,
CMS has revoked the ability of 14,663 providers and suppliers to bill within the Medicare program. Felony convictions, wrong operational
address, or failure to comply with CMS regulations were among the primary reasons for their
dismissal from the program.
–– After putting in screening and review requirements set forth by ACA, the number of revocations has quadrupled. The ACA has also allowed
CMS to devote more funds toward proactive data analysis to track and act upon potential fraud
and abuse.
“When there is that kind of money behind it, it stands
to reason that their intent is to increase the amount
of recoveries,” says George Bodenger, a partner at
Saul Ewing, LLP, in Philadelphia and chair of the firm’s
Health Practice Group.
The ACA also included an important procedural change
in the way CMS recovers Medicare payments. Rather than
utilizing a “pay and chase” model in which CMS would
attempt to recover funds after it had already made payments to a provider, the ACA adjusted the model to catch
potential fraud before payments are released.
“Really what they are trying to do is focus more on the
front end and do more provider screening and more scrutiny up front so they aren’t letting folks get into the program that have a history,” van Halem says. “That’s where
we’re seeing more revocation and more activity because
they have the funding to do it. You’re seeing audits, but
then they are also implementing predictive modeling.”
• OIG guidelines for state false claims acts:
In March, following a review of 28 different state laws,
the OIG released its “Updated OIG Guidelines for
Evaluating State False Claims Acts.” The guidelines
incentivized states to restructure their false claims act
to meet OIG’s requirements, in exchange for an additional 10% on any amounts recovered. According to
OIG, state laws must meet the following requirements
in order to receive the additional recovery:
–– Establish liability to the state for false or fraudulent
claims, as described in the federal False Claims Act
(FCA), with respect to Medicaid spending
–– Contain provisions that are at least as effective
in rewarding and facilitating qui tam actions for
false or fraudulent claims as those described in
the FCA
–– Contain a requirement for filing an action under
seal for 60 days with review by the state attorney
–– Contain a civil penalty that is not less than the
amount of the civil penalty authorized under the FCA
Given the financial pressure that most states are
facing, this is an easy opportunity to provide some
reprieve to their budgetary woes.
“You have a situation where states are faced with
more budgetary pressure to deal with expanded Medicaid roles and they will have more incentive to pursue
healthcare providers,” says Breen. “This clearly impacts
the long-term care industry, which is heavily involved
with Medicaid patients. You can expect that states will
have a bigger incentive to pursue actions against providers because it’s clearly to their financial benefit.”
• Increased whistleblower incentives: In
April, CMS released a proposed rule that would significantly increase the rewards for whistleblowers that
provide information that leads to a recovery of funds
from providers that have engaged in fraud and abuse.
The proposed changes include:
–– Increasing the potential reward amount from 10%
to 15% of the final amount collected for information that leads to a recovery of Medicare funds
–– Increasing the reward cap from $1,000 to $9.9
million (a maximum of 15% of the first $66 million recovered)
With the increased reward, CMS hopes to further
incentivize whistleblowers to step forward and report
fraud and abuse to the government. Since 1998, CMS
has recovered approximately $3.5 million, but paid out
just $16,000 for 18 rewards. CMS proposed rule changes
are modeled after the IRS whistleblower program, which
has seen significant recoveries following changes to its
whistleblower reward program. At the same time, providers should be thinking about their internal reporting
and auditing systems, says Margaret Surowka Rossi,
council at Hiscock and Barclay in Albany, N.Y.
“This not only incentivizes people to make these
complaints, but it also should incentivize the providers
to make sure they are focusing on regulating compliance and really doing a lot of the internal auditing and
internal vigilance that is required,” Rossi says. H
© 2013 HCPro, Inc. For permission to reproduce part or all of this newsletter for external distribution or use in educational packets, contact the Copyright Clearance Center at copyright.com or 978-750-8400.
October 2013
PPS Alert for Long-Term Care
GAO report reveals flaws in manual medical
review process
The July report shows that Medicare Administrative Contractors lacked guidance,
but fails to include perspective from providers and beneficiaries
During the final three months of 2012, in response
to the growing concern regarding costs for outpatient
therapy, CMS implemented two types of manual medical reviews (MMR). These MMRs reviewed preapproval
requests and reviews of claims submitted without preapproval for all outpatient therapy services that were
above $3,700.
The MMR requirement caused a stir within the
therapy and long-term care industry and CMS put considerable resources toward educating providers on the
process, hosting four open door forums between March
2012 and October 2012, when the program began. CMS
cited statistics on the previous year’s spending, including the $5.7 billion that Medicare spent on outpatient
therapy services in 2011 for 48 million beneficiaries.
In June 2013, the Government Accountability Office
(GAO) released a report on the “Implementation of
the 2012 Manual Medical Review Process.” The report
showed a number of flaws within the system, particularly concerning the Medicare Administrative Contractors (MAC) that were tasked with conducting the
reviews. The GAO reviewed relevant statutes and CMS
policies and guidance, and conducted interviews with
officials from three MACs that accounted for almost
50% of the MMR workload. CMS estimates that MACs
affirmed roughly two-thirds of the 110,000 preapproval
requests and about one-third of the 57,000 claims
submitted without preapproval, but the final outcome
of the MMRs remains uncertain.
Specifically, the GAO found a number of problems
regarding how the MMRs should be processed. CMS
did not issue complete guidance on how to process preapproval requests before the implementation date and
MACs were unable to fully automate their systems for
tracking requests within the required 10 business day
time frame. Requests that were not reviewed within
10 days were supposed to be automatically approved.
Additionally, MACs struggled to implement reviews of
preapproval requests because CMS continued to issue
new guidance on how to manage those requests after
the MMR process started. Because of the lack of guidance, each MAC handled the process in a different way.
Although it was not addressed specifically in the
report, the incongruity with each MAC’s process had a
trickle-down effect that impacted the beneficiaries as
well, says Nancy Beckley, MS, MBA, CHC, president of Nancy Beckley and Associates in Milwaukee.
“This was an incredibly disruptive process,” Beckley
says. “It started with a tremendous effort to notify every
beneficiary about what was going on and at the same
time they were conducting four different open door
forums and then relying on each MAC to roll out the
training and the data collection instrument and rules
for submission.”
Ultimately—from the perspective of the MACs, the
providers, and the beneficiaries—there was a lot of
confusion and very little uniformed guidance, which
led to an imperfect process. In some cases, facilities
that submitted post-payment MMRs in December still
haven’t received a response, Beckley says.
“No one really understood or had a grip on what was
going on,” she says. “The MACs provided instructions,
but if you compared each of them you would say how
come there is one law and multiple different ways of
providing this information.”
Two missing pieces
Although the report did highlight some of the major
flaws with the MMR process, Beckley argues that the
GAO left out the perspective of two important characters: providers and beneficiaries.
“I don’t think the GAO report gives Congress the
whole picture of how this process works nor does it
represent the time and effort by the providers as well as
the concern of beneficiaries,” Beckley says.
From the provider’s perspective, the process was
not only cumbersome, but expensive. Many providers
designated money to gather data and submit requests,
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PPS Alert for Long-Term Care
October 2013
Beckley says. The larger providers often had to hire a
full-time employee to assist with the workload.
However, the report does at least encapsulate the
confusion with the entire MMR process that ultimately
left providers guessing, says Kate Brewer, PT, MBA,
GCS, RAC-CT, president of Greenfield Rehabilitation
Agency, Inc., in Milwaukee.
“Providers were left to a trial and error method in
many cases,” Brewer says. “From a provider standpoint, we spent countless man-hours trying to figure
out the process and comply when they just used this
process for three months and then discontinued it.
It was even more confusing in early 2013 trying to
figure out what to do—many providers were trying to
continue the 2012 process because no one was giving
Part of the problem was that even though CMS asked
the MACs to allow CD or electronic documentation,
most only accepted fax or mailed submissions. Beneficiary documentation often exceeded 200 pages, which
was a tremendous burden for facilities that needed to
print or fax records.
“Even with that methodology, the MACs were claiming they weren’t getting faxes or printed records and
providers were saying they had fax receipts or had
spent FedEx® money,” Beckley says.
From the beneficiary’s perspective, the MMR process
was a tremendous disruption to therapy. In the report,
CMS told the GAO that the purpose of the preapproval
process was to protect beneficiaries from being liable
for payment of non-affirmed services by giving the provider and beneficiary guidance as to whether Medicare
would pay for the requested services. However, in some
cases, beneficiaries declined to continue coverage because of the potential financial burden of being denied
therapy above the cap.
“My frame of reference is always family members
I know that are on Medicare,” Beckley says. “I like to
put a human side to this, and there is clearly a human
side missing in the report. This was about the Medicare
beneficiaries, yet the GAO made it about the MACs.”
Emphasizing good documentation
There are two things that providers can take away from
the GAO report: First, providers can expect continued
scrutiny as they are asked to prove the medical necessity
of therapy services. Second, therapy documentation is
more important than ever to provide that proof.
It helps to look at the GAO report in the context of
other reports that have come out regarding Medicare in
the last year, says Beckley. In addition to the GAO report,
Beckley continuously references the following:
• Office of Inspector General (OIG) report on Spectrum Rehabilitation, LLC: This report released by the
OIG in June estimates that Spectrum improperly received at least $3.1 million for outpatient occupational and physical therapy services that didn’t comply
with Medicare requirements. Of the 100 claims that
OIG randomly sampled, 83 were billed improperly
and 44 contained more than one deficiency.
• Chapter 9 from the MedPAC Report: The MedPAC
Report released in June included a chapter entitled
“Improving Medicare’s payment system for outpatient therapy services.” In it, MedPAC outlines
recommendations including reducing the therapy
cap for physical therapy and speech-language pathology services combined and the separate cap for
occupational therapy to $1,270. The report also recommends collecting functional status information
on therapy services using a streamlined, standardized assessment tool in order to classify patients
across all therapy types. This tool would provide
support for development of an episode-based or
global payment system.
“This is the [therapy] environment; it’s not just about
one report,” Beckley says. “The big takeaway is the best
thing that therapists can do on behalf of the therapy
industry and on behalf of the beneficiaries is to really
learn how to write good documentation. I think that’s so
critical and I think it’s also sorely lacking.”
A common issue, Beckley adds, is that therapists can
easily verbally explain everything that is going on with
the patient, but their documentation is sparse. Therapists
also need to hold their ground when they feel a patient no
longer needs more therapy.
“They need to really, truly understand when it’s no
longer medically necessary for the patient to continue,” Beckley says. “It’s okay take up that position with
the family and the physician. Many therapists feel bad
or back down when the physician provides another
order or the family says ‘please do more therapy.’ ”
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October 2013
Brewer recommends setting up an internal process—in
addition to routine chart auditing—to track beneficiaries
that are getting close to the cap and review the documentation to ensure it is fully supporting the services
“We set up our own internal levels of review to ensure
documentation is defensible and services continuing beyond the threshold, which are guaranteed to be reviewed,
will prove to be payable,” she says.
Particularly when it comes to documentation, therapists and providers can also work with their MACs to get
PPS Alert for Long-Term Care
more education and a better understanding as to what
appropriate documentation should look like.
“They can ask for education and ask for training, they
can seek to get further information, and if the training is
not sufficient or not in-depth enough, or simply is just
quotes from Medicare manuals, they have a recourse
through the provider outreach and education councils of
each MAC to say we need more,” Beckley says. “The
therapy industry needs to move forward and really
demand, on behalf of the beneficiaries, a clear understanding of what needs to be in the documentation.” H
HHS proposes updates to LTC
Ombudsman ­program
Proposed changes aim to strengthen the program and offer more consistency from
state to state
On June 14, the Administration on Aging and the
Administration of Community Living (ACL), both
within the U.S. Department of Health and Human
Services (HHS), announced that it had posted a Notice
of Proposed Rule Making in order to strengthen the
Long-Term Care Ombudsman (LTCO) program across
the country. The changes are designed to clarify how
each state implements its program in order to establish
more consistency regarding the duties and responsibilities of the LTCO.
The LTCO in each state is a resource for LTC residents and serves as an advocate during instances of
abuse, neglect, and financial exploitation. The LTCO
often works as a middleman between the LTC facility
and the resident in order to help fairly resolve disputes
or complaints.
Elder abuse is expected to rise with the growing
populating of elders, according to an ACL press release.
Additionally, elderly victims of even modest abuse have
300% higher morbidity and mortality rates compared
to non-abused residents, the ACL says.
The proposed rule addresses the following issues:
• Responsibilities of the State Ombudsman, State
Agency on Aging, and Representatives of the Office of the State LTCO related to the program
• Consistent approaches to resolving complaints on
behalf of residents
• Appropriate role of ombudsmen in resolving abuse
• Conflicts of interest—processes for identifying and
remedying conflicts so that residents have access to
effective, credible ombudsman services
“HHS is committed to strengthening the ability
of long-term care ombudsman staff and volunteers
to be effective problem-solvers for older adults and
people with disabilities who live in our nation’s longterm care facilities,” Assistant Secretary for Aging
Kathy Greenlee said in a press release. “Long-term
care ombudsman programs are often a lifeline for
victims of abuse, and it is fitting to present these
proposed changes as we recognize World Elder Abuse
­Awareness Day.”
In one sense, this is a welcomed change ­throughout
the LTC community, primarily because the responsibilities of LTCOs have varied so drastically from state to
state and the responsibilities of the ­ombudsmen were
often vague or unclear. On the other hand, there is some
concern that new regulations will pressure ombudsmen
to unnecessarily report facilities rather than working
with them to resolve disputes, says Mary Malone,
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PPS Alert for Long-Term Care
October 2013
a healthcare attorney and ­director of ­Hancock, Daniel,
Johnson & Nagle, PC in Richmond, Va.
“We’re not surprised at the timing because this
has been out there as a proposed rule since 1994,”
­Malone says. “It seems like the reason it has come forward now for comment and finalizing is to address the
need for consistency and to ensure that across the country there are some of the same types of programs that are
intended to protect the interests of the elderly.”
The comment deadline to the proposed rule was
August 19, 2013. In the interim, facilities should familiarize themselves with the proposed changes in order
to gain a better understanding of how the LTCO will
operate moving forward.
Redefining responsibilities
The main impetus behind the proposed changes is
the need for consistency within the LTCO program.
For that reason, some states may see some significant changes to their program should the proposed
rules be finalized. But these changes may actually
improve the way LTCOs and LTC facilities interact
with one ­another, says Bonnie Foster, RN, BSN,
MEd, owner and president of Foster Consulting,
Inc., in Columbia, S.C. In some cases, LTCOs may
believe they have more power than they actually do.
“Ombudsman is supposed to be the liaison between
the resident and everyone else, but I never personally
thought that their role helped very much,” she says.
However the proposed updates also bring some
potential concerns. Typically new regulations are
­accompanied by a spike in enforcement, says ­Jeannie
Adams, attorney on the administrative law team
and director of the Richmond, Va. office of Hancock,
­Daniel, Johnson & Nagle, PC. Subsequently, facilities
may experience LTCOs that are more aggressive than
they may have been in the past.
“One thing that LTC facilities need to be prepared
to see is an ombudsman coming into their facility with
greater frequency to investigate complaints and in the
process, accessing resident records,” Adams says.
There is also some concern that the changes will
­allow ombudsmen to unnecessarily persuade residents
to file complaints. LTC facilities are already one of the
most regulated industries in the country, and these
changes could pile on an additional strain.
“From where we stand, we certainly support the protections of the elderly, but it’s putting the facilities that
are trying to care for them under greater and greater
strain,” Malone says. “We just hope these regulations
aren’t going to send a signal to the ombudsman, who
in the past in their role as advocates for the resident
worked hard to resolve issues with the residents rather
than just reporting them.”
Improving resident communication
One way that LTC providers can proactively ­address
the proposed changes to the LTCO program is by
focusing on Quality Assessment and Performance
Improvement (QAPI) implementation and improving
­communication with residents and their families.
A comprehensive QAPI program will identify areas
in where residents are dissatisfied with their care,
­Foster says. “I think what’s really going to have to improve, which I have always said, is documentation,” she
says. “It’s not just documenting, but managers need to
be rounding and keeping a running tab of what residents say and are they concerned about anything?”
Problems can also arise when family members don’t
have a full understanding of the care that is provided to
the resident and what is covered during his or her stay.
This problem is often exasperated when residents are
admitted on a Friday afternoon. Subsequently, there is
no one to talk with the family or the resident until the
following week. Since complaints often come during
the weekend when family members are visiting, LTC
providers may consider adding management staff during the weekends to communicate with residents and
their family members, Foster says.
Facilities should also ensure they have a pathway
to address concerns or complaints from a resident or
­family member.
“The better you’re communicating and ­setting
­expectations with residents and family members, the less
likely you are to deal with issues from the ­ombudsman
or surveyors or other types of ­outside sources and the
better chance you have to ­increase your resident satisfaction in the long term,” Malone says.
Building relationships with ombudsmen
The relationship between LTC providers and LTCOs can be viewed as adversarial; however, building a
© 2013 HCPro, Inc. For permission to reproduce part or all of this newsletter for external distribution or use in educational packets, contact the Copyright Clearance Center at copyright.com or 978-750-8400.
October 2013
relationship with your local ombudsman will improve
­communication with him or her should the ombudsman come in to ­resolve a complaint, Adams says.
“The facilities that we represent that have good relationships with their local ombudsman, there is just a greater
sense of cooperation when issues do arise,” she says. “You
really do want the ombudsman to be as helpful as possible
and not antagonistic. I think it just highlights the need to
continue building positive relationships.”
Malone’s concern with the specifics of the proposed
changes is that it may put additional pressure on
­ombudsmen to make reports of elder abuse or exploitation rather than trying to work with the facility to
resolve the issue first.
PPS Alert for Long-Term Care
Malone suggests inviting your local ombudsman to
your facility for a walk-through. If you are planning a
day to educate residents on advance directives, offer
to have the ombudsman come observe the process.
If you are planning to offer a new service, send information to the ombudsman about how this may impact
resident care.
“I think it’s about looking for opportunities to keep
the ombudsman involved and knowledgeable about the
quality of service you provide overall, outside of the
context of a specific complaint,” she says. “That’s a
great way to build that relationship and give the
ombudsman a perception of the quality of your facility
and how it operates.” H
MDS professor
Test your knowledge of the MDS and long-term care
by answering the following questions. To review the
correct answers, see the answer key on p. 4.
1. The MDS has the potential to impact all but one of
the following?
a.Medicare reimbursement
b.Medicaid reimbursement
c.Quality indicators/measures
d.Part B Medicare reimbursement
2. A resident has been readmitted back to the hospital after spending 25 days in your SNF. The correct discharge reporting form to complete would be
which of the following?
a.Discharge—Return Anticipated
b.Death in the facility discharge
c.Discharge—Return Not Anticipated
d.The answer depends on whether a bed hold was
in place
3. The pain assessment interview for residents
­assesses pain ________.
c.effect on function and intensity
d.All of the above
4. To complete a Significant Change in Status Assessment (SCSA), there must be a decline or improvement in a resident’s status that __________.
a.will not normally resolve itself without intervention by staff or by implementing standard
disease-related clinical interventions; is not
b.impacts more than one area of the resident’s
health (may impact only one area but staff
­believe resident would benefit from a SCSA)
c.requires interdisciplinary review or care plan
d.All of the above
5. The ARD for the Start of Therapy OMRA must
be set on days _______ after the start of
a.one to three
b. two to six
c.five to seven
d. seven to nine
6. The federal regulatory requirement at 42 CFR
483.20(d) requires nursing homes to maintain
all resident assessments completed within the
­previous ____ months in the resident’s active
­clinical record.
b. 15
d. 24 H
© 2013 HCPro, Inc. For permission to reproduce part or all of this newsletter for external distribution or use in educational packets, contact the Copyright Clearance Center at copyright.com or 978-750-8400.
PPS Alert for Long-Term Care
October 2013
Editor’s note: This month’s PPS Q&A was modified
from the NEW HCPro book SNF Nursing and Therapy
Collaboration: Optimizing Compliance, Reimbursement, and Documentation, by Kate Brewer, PT,
MBA, GCS, RAC-CT, and Theresa A. Lang, RN,
For more information about this book or to order,
call customer service at 800-650-6787 or visit www.
To submit a question for upcoming issues, email
Editor Melissa D’Amico at [email protected]
Can you help explain what is considered an
“­unscheduled assessment”?
There are situations when a SNF provider must
complete an assessment outside of the ­standard
scheduled Medicare-required assessments. These
­assessments are known as unscheduled assessments.
The following are considered unscheduled
• Significant change in status assessment
(for swing bed providers, this unscheduled
assessment is called the swing bed clinical
change assessment).
–– This assessment is completed when the SNF interdisciplinary team has determined that a resident meets the significant change guidelines
for either improvement or decline. (See Section
2.6 of the MDS 3.0 RAI User’s Manual for more
• Significant correction to prior comprehensive assessment.
–– This assessment is completed if a significant error was made in the prior comprehensive assessment. (See Section 2.6 of the MDS 3.0 RAI User’s
Manual for more information.)
• Start-of-therapy Other Medicare Required
Assessment (SOT OMRA).
–– This assessment is completed in order to classify a resident into a RUG-IV rehabilitation
plus extensive services or rehabilitation group.
This is an optional assessment. (See Section 2.9
of the MDS 3.0 RAI User’s Manual for more
• End-of-therapy (EOT) OMRA. This assessment
is completed in two circumstances:
–– When a beneficiary who was receiving rehabilitation services, PT, OT, and/or SLP was classified
in a RUG-IV rehabilitation plus extensive services or rehabilitation group and all therapies have
ended but the beneficiary continues to receive
skilled services.
–– When a beneficiary who was receiving rehabilitation services, PT, OT, and/or SLP was classified
in a RUG-IV rehabilitation plus extensive services or rehabilitation group and did not receive any
therapy services for three or more consecutive
calendar days. The EOT would be completed to
classify the beneficiary into a non-therapy RUG
group beginning on the day after the last day of
therapy provided.
• Change-of-therapy (COT) OMRA.
–– This assessment is ­completed when the intensity of therapy—including the total reimbursable therapy minutes (RTM)—and other therapy
qualifiers (e.g., number of therapy days, therapy
disciplines) change significantly enough to classify a beneficiary into a different RUG-IV category from which the resident is currently being
billed for the seven-day COT observation period, following the ARD of the most recent assessment used for Medicare payment. (See Section
2.9 of the RAI User’s Manual.)
–– The requirement to complete a change of therapy assessment is reevaluated with an additional seven-day COT observation ­period ending
on days 14, 21, and 28, after the most recent
Medicare payment assessment ARD and a COT
OMRA is completed if the RUG-IV ­category
–– If a new assessment used for Medicare payment
has occurred, the COT observation period will
restart beginning on the day following the ARD
of the most recent assessment used for Medicare
payment. H
© 2013 HCPro, Inc. For permission to reproduce part or all of this newsletter for external distribution or use in educational packets, contact the Copyright Clearance Center at copyright.com or 978-750-8400.
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