Providers Should Update / Adopt Active Shooter Protocols

Active-Shooter2As active shooter events like the unfortunate incident this past week at Pine Kirk Care Center are becoming more common, healthcare entities are expected to attempt to prevent, and appropriately prepare for, respond to, and recover from active shooter situations. 

A large number of our clients have been contacting us since last week’s tragedy to seek guidance and assistance with policy development. Pre-planning and training now is a best practice – especially given the special considerations of rehabilitation and senior living facilities, such as their vulnerable populations, the presence of visitors, the duty to act and abandonment concerns, and many facilities’ large size.

To assist our clients, we have drafted an Active Shooter Policy that is immediately available. Our policy incorporates guidance established by The Department of Homeland Security, Active Shooterwhich encourages the “run, hide, fight” rule.  The “run, hide, fight” rule first encourages individuals to evacuate the premises where an active shooter is located, and if there is not an accessible escape path, to hide. As a last resort, and only when an individual’s life is in imminent danger, individuals are encouraged to disrupt and/or incapacitate an active shooter.  

While the ROLF Active Shooter Policy provides important safety tips and guidelines. Note that to be effective, each provider will need to customize it. For example, we recommend that each facility provide information regarding escape routes and lockdown procedures specific to their building, as well as consider any of its unique circumstances that hamper or aid escape or response. Additionally, as law enforcement continue to draw lessons learned from actual active shooter situations, providers should incorporate new lessons and practices into the Active Shooter Policy. 

If you are interested in purchasing the ROLF Active Shooter Policy, please contact any of our Attorneys directly or at 866-495-5608 for more information.

SNF CHAIN HIT WITH $347 MILLION FRAUD JUDGMENT / LIST OF RUG UPCODING CASES GROWS

  • Therapy upcoding case brings $347 million verdict against a national nursing facility chain.
  • Government cases targeting RUG selection are more common than ever & target standard nursing facility practices.
  • All nursing facilities are at risk – SNFs must act proactively to limit their exposure and examine practices that the DOJ considers questionable and indicators of RUG upcoding.

A March 1st judgment from a Florida District Court added another SNF chain to the ever-growing list of facilities that have made massive payouts in response to False Claims Act (“FCA”) cases based on MDS and therapy practices.  The theory of these cases often call into question practices that are standard across the long-term care industry, such as providing residents the highest level of therapy tolerated and setting company goals for RUG levels and productivity. Few nursing facilities are exempt from the risk of a similar verdict.

This most recent case arose when the relator, a facility’s MDS coordinator, made allegations regarding the company’s therapy practices.  The relator alleged that whenever the company accepted a new Medicare resident, the company’s practice was to provide the new resident with all three therapeutic services: speech, occupational and physical therapy, and thereafter, bill to Medicare at an “ultra” level (RU). The allegation was that immediately after the resident’s initial treatment, the level of care for the resident would drop off until the next MDS assessment was due, and that a few days before the resident’s next assessment, the provision of care would again be “ramped up” for billing purposes, regardless of need.

After years of litigation, the jury sided with the relator on February 15th, finding damages of $115 million. The court then tripled these damages as required by the False Claims Act, and assessed statutory penalties of $5,500 for each of the 446 cited false claim submissions.

While this judgment against Consulate Health Care is an outlier in terms of magnitude, FCA cases against skilled nursing facilities are common.  2016 had the third highest annual recovery in FCA history at $4.7 billion, $2.5 billion of which came from the health care industry.  Cases from SNFs accounted for more than $160 million in settlements and judgments in 2016.  Skilled nursing facility chains across the country have paid millions to settle RUG upcoding allegations, including:

Now more than ever, nursing facilities must understand that they are not exempt from the risk of an FCA lawsuit.  SNFs should be acting proactively to limit their exposure and examine practices the Department of Justice (the “DOJ”) considers questionable and indicators of therapy upcoding. Those facilities that are interested in learning more about the common practices and patterns commonly cited by the DOJ as indicators of therapy upcoding, can review our blog post HERE.

ROLF focuses its practice in representing post-acute providers and has experience handling high risk False Claims Act qui tam and other whistleblower claims. ROLF assists providers in defending these types of actions, implementing preventative compliance measures to prevent these types of claims, and consults with other law firms on False Claims Act cases.

Please note that this alert is intended to be informational only, and is not intended to be nor should it be relied upon as legal advice. Rolf Goffman Martin Lang LLP will not be responsible for any actions taken or arrangements structured based upon this alert. The receipt of this alert by an organization that is not a current client of Rolf Goffman Martin Lang LLP does not create an attorney-client relationship between the recipient and the law firm.

 ©2017. Rolf Goffman Martin Lang LLP. All Rights Reserved.

W. Cory Phillips Promoted to Partner

Phillips Website.jpgROLF is pleased to announce that Cory Phillips has been named a Partner in the firm.

Cory is a key member of our firm’s Revenue Cycle, Receivables & Collection team, which assists post-acute, long-term care and senior living providers with improving their financial health.

The team’s efforts have resulted in ROLF collecting millions of dollars for its clients, reversing hundreds of thousands of dollars in Medicaid take-back claims, and obtaining Medicaid reimbursement after successfully challenging adverse decisions rendered by county departments. Recently, Cory has been instrumental in assisting our clients with creative approaches to avoid debt in the first place, and in obtaining entitlement to Medicaid through proper systems management.

Cory obtained his Bachelor of Arts from the College of Wooster and his Juris Doctorate, cum laude, from Capital University Law School.

He is licensed to practice law in both Michigan and Ohio.

Cory has been recognized as a Super Lawyer Rising Star for the last five years.

Goffman Visits Representatives in Washington, D.C. with LeadingAge Delegation

Goffman Website.jpgIra Goffman, in his role as Incoming Board Chair and Chair of the Government Affairs Committee at Montefiore Home, joined LeadingAge members and leadership in Washington, DC on March 9 to share perspectives of not-for-profit senior living providers with members of Congress.

The delegation met with Senators Sherrod Brown and Rob Portman, and health care assistants to Representative Pat Tiberi, Jim Renacci and Sen. Brown.

Other members of the delegation included:

Menorah Park Center for Senior Living

  • Richard Schwalberg, Administrator
  • Ken Bravo, Chair, Government Relations Committee

Montefiore Home

  • Mark Weiss, CFO/Adminisrtrator

Jennings Center for Older Adults

  • Allison Salopeck, President/CEO
  • Dan Blechschmid, Board of Trustees

McGregor P.A.CE.

  • Tangi McCoy, President/CEO

The Hebrew Home at Riverdale by River Spring Health

  • Daniel Reingold, President/CEO & Chair Elect for Association of Jewish Aging Services

Jewish Association on Aging

  • Debbie Winn-Horvitz, President/CEO

Jewish Home Family

  • Sunni Herman, Executive Vice President

Association of Jewish Aging Serivces

  • Don Shulman, President/CEO

LeadingAge

Chris Kuhn Promoted to Partner

ROLF is pleased to announce that Christopher Kuhn has been named a Partner in the firm.

Chris’s practice focuses on business and employment litigation, government investigations, and provider recoupment and reimbursement disputes with various Medicare and Medicaid agencies. Chris represents ROLF clients in both Federal and state courts throughout Ohio and Michigan as well as before Federal and state administrative agencies.

Chris is a key member of our firm’s litigation team, which has managed to obtain a number of outstanding results recently, including:

  • Obtaining a million-dollar jury award in a claim for tortious interference and fraudulent transfer.
  • Reversing the Michigan Department of Health and Human Services Director’s order in a Medicaid cost appeal, resulting in a substantial financial recovery for our client.
  • Obtaining summary judgment and all attorneys’ fees in a contract dispute that was appealed to the Ohio Supreme Court.
  • Obtaining dismissal in a Federal age discrimination claim brought by a nurse.  

Chris obtained his Bachelor of Arts from Connecticut College and his Juris Doctorate, cum laude, from Case Western Reserve University School of Law. Chris is licensed to practice law in both Ohio and Michigan, as well as the Northern and Southern District Courts of Ohio, the Eastern and Western Districts of Michigan, the Central District of Illinois, and the Third Circuit Court of Appeals.  

Chris has been recognized as a Super Lawyer Rising Star for the last five years and is a member of the American Inns of Court.  

March 1st is the Deadline to File HIPAA Annual Breach Notifications for 2016

No later than 60 days after the end of the calendar year, covered entities must report information to HHS regarding the prior year’s HIPAA breaches involving less than 500 individuals.

HIPAA covered entities are required by law to notify the Secretary of HHS if they discover a breach of unsecured protected health information or “PHI” involving less than 500 individuals. A covered entity must notify HHS of the prior year’s breaches no later than 60 days after the end of the calendar year (or by March 1, 2017).

Covered entities must submit this notice electronically through the link provided below and by completing all of the fields required on the breach notification form.

SUBMIT A NOTICE FOR A BREACH AFFECTING FEWER THAN 500 INDIVIDUALS

Covered entities are not required to make this notification at the end of the calendar year, but instead may choose to report breaches at the time they are discovered, so long as the notification is made prior to the annual deadline.

If a covered entity experiences a breach affecting more than 500 individuals, however, a different procedure is required, which includes notifying HHS of the breach “without unreasonable delay” and “in no case later than 60 calendar days from the discovery of the breach.”

Attention to these requirements is vital as failure to abide by HIPAA can cause an entity to incur steep penalties. Penalties range from $100 to $50,000 per violation, with a $1.5 million cap per calendar year, and criminal penalties of up to 10 years’ imprisonment.

To assist our clients in implementing the operational changes necessary to comply with HIPAA requirements, ROLF has published HIPAA manuals for nursing facilities, assisted living facilities, DD providers, home health agencies, and hospice providers. ROLF’s manuals are drafted specifically for the applicable provider type, focusing on providing both a clear explanation of the legal requirements, as well as various tools, templates, and sample policies to guide your entity’s compliance.

If you need additional information about this breach notification topic, would like assistance in updating your policies, or would like to purchase a HIPAA manual, please contact Jacqueline Anderson (Anderson@RolfLaw.com) at (866) 495-5608.

Please note that this alert is intended to be informational only, and is not intended to be nor should it be relied upon as legal advice. Rolf Goffman Martin Lang LLP will not be responsible for any actions taken or arrangements structured based upon this alert. The receipt of this alert by an organization that is not a current client of Rolf Goffman Martin Lang LLP does not create an attorney-client relationship between the recipient and the law firm.

©2017. Rolf Goffman Martin Lang LLP. All Rights Reserved.

 

January 2017 Exclusion Alert

We have provided the list of new program exclusions for the month of January as published on the OIG website. Health care providers are prohibited from employing or contracting with an excluded person or entity, and face significant penalties if they do, so make sure to review the list below carefully.

We have redacted the list to show only those exclusions for Ohio, Indiana, Michigan, Pennsylvania, Kentucky, Florida, North Carolina, South Carolina, and Virginia.  Remember, doing a nationwide search is the only way to be certain that the individual you are screening is not prohibited from Federal program participation. If an individual has worked in or moved from another state, the individual’s exclusion status will only be visible by searching the database for the individual’s previous state of residence or by searching the nationwide database. To search the nationwide database, click HERE.

Health care providers should not rely only on these monthly publications of new exclusions, but should also verify that their employees and contractors are not excluded from a government healthcare program by checking the databases maintained by the Office of Inspector General and the System for Award Management upon hire and periodically thereafter.

If you have any questions or concerns about the exclusions, then feel free to contact us.

Ohio

Indiana

Michigan

Eddie J. Graham
Margo O’Neal
Sarah A. Spears
Douglas Scott Trubiano
Nicole R. Barbre
Martha Angela Barnett
Shane V. Brumbaugh
Alee S. Lane

Muhammad Sohail Aamir
Javed Akhtar
Nadia Arain
Rahmat U. Begum
Usman Shaukat Butt
Rajesh N. Doshi
Lama Abdulkarim Elhorr
Surya Chakravartul Nallani
Tausif Rahman
Dana Sharma

Pennsylvania Kentucky Florida
Aletha Davis
William C. Davis
Oscar Huachillo
Igor Ishchuk
Jose A. Mercado-Francis
Kitrish N. Patel
Michael Randall
William Scully
Sachin Sharma
Tariq Mahmood Tahir
Madhur Rajendra Thawani
Raymond Williams
Norvass Dequetta Wisdom Thomas Brooke
Alexander Khavash
Asad Ullah Qamar
North Carolina South Carolina Virginia
Janice Herndon Abernathy
Margaret Vevon Edgerton
Meaghan Lara Salz
Sharon Elizabeth Vandergrifft
Yolanda Bennett
Shamika Footman
Joe Douglas Hendris Sr.
NONE

DO NOT BE CONFUSED: SNFs are Required to be in Compliance with Phase 1 of the New RoPs NOW!

Time is NowSNFs are required to be in compliance with the new Requirements of Participation (RoPs) NOW!

Actually, SNFs have been required to be in compliance with all Phase 1 requirements for 2 months, and SNFs are currently being cited for their non-compliance with the law.

The new RoPs require SNFs to update existing policies, update procedures and agreements, implement new programs, and provide additional information to residents.  

Many SNFs have been confused by advertised educational series and other forms of assistance regarding the new RoPs that are spread out over months. They have assumed that since these planned roll-outs are taking place slowly over time that they must have time to get into compliance. THEY DO NOT.

While education can be ongoing, the required policies and procedures need to be in place NOW. 337b44be-c23e-4bc5-9d6f-a984cc6c2496-large

Failing to prioritize compliance with the new RoPs NOW risks survey deficiencies, civil monetary penalties, 5-star ratings, and your organization’s commitment to maintain legal and ethical compliance.

ROLF’s SNF RoP Phase 1 Compliance Packet is meant to assist SNFs IMMEDIATELY in 2 ways: 1) by providing ready-to-go material that can significantly cut short research and drafting efforts; and, 2) as a quality-control comparison to internally developed material to make sure that required elements are adequately addressed.

The “Mega-Rule” contains the biggest changes to the SNF RoPs in 25 years! Providers need to invest in their compliance efforts NOW. They cannot afford to wait.

For more information about the new RoPs or our firm’s SNF RoP Phase 1 Compliance Packet, please see our prior BLOG POST

If you have any questions, please contact:

Carol Rolf    Aric Martin    Michele Conroy    Andrea Lee

December 2016 Exclusion Alert

We have provided the list of new program exclusions for the month of December as published on the OIG website. Health care providers are prohibited from employing or contracting with an excluded person or entity, and face significant penalties if they do, so make sure to review the list below carefully.

We have redacted the list to show only those exclusions for Ohio, Indiana, Michigan, Pennsylvania, Kentucky, Florida, North Carolina, South Carolina, and Virginia. Remember, doing a nationwide search is the only way to be certain that the individual you are screening is not prohibited from Federal program participation. If an individual has worked in or moved from another state, the individual’s exclusion status will only be visible by searching the database for the individual’s previous state of residence or by searching the nationwide database. To search the nationwide database, click HERE.

Health care providers should not rely only on these monthly publications of new exclusions, but should also verify that their employees and contractors are not excluded from a government healthcare program by checking the databases maintained by the Office of Inspector General and the System for Award Management upon hire and periodically thereafter.

If you have any questions or concerns about the exclusions, then feel free to contact us.


Ohio Indiana Michigan
Emily Marie Birchnaugh
John A. Calvetta
Aries Cobb
Deborah Lynn Cook
Christina Jo Dennison
Sherry Lynn Evans
Jaclyn Ann Frost
Sadie Hunter
April Denise Jones
Aleksandr Katsman
Shiyla A. Nix
Lois Jae Osborne
Debra F. Renner
Marianna C. Russell
Summit S. Shah
Lea Ann Marlow
Ladonna J. Waugh
Ronald Max Mingle
Bala Annaiahsetty Setty
Dennis Mitchell Thimm

Pennsylvania Kentucky Florida
Misty Faith Adamik
Sally Berry
Lauren Jane Dessoye
Melissa Eckler
Jorge Andrew Juvier
Mohammed Abdul Khan
Paul Mil
Dolores Napkori
Robert Allen Oxenreider
Wendy Rhone
Christine Sell
Sheridah Singletary
Linda Elizabeth Venner
Laurence H. Loeb Roberto De Jesus Alonso
Shanakia Benton
Yanet Rodriguez Clavero
Nery Cowan
Zuzette De La Rua
Maria L. Duany
Karla Garcia
Susette Gibbs
Milagros Gutierrez
Sandra Jaramillo
Jannet Jure
Robert Allen Lopez
Jorge Lorenzo
Ali Cara Lovins
Pedro R. Martinez
Xavier Alejandro Munoz-Ponce
Yahima Pardo
Mariah H. Patterson
Jesus Miguel Perez
Yamile Duain Porro
Maelis Porto
Robert R. Reppy
Blanca R. Rodriguez
Maria Sabater
Whitney Janay Smith

North Carolina South Carolina Virginia
Debra Jo Bowling Krozser
Judy Ann Christiansen
Ramon Haquia
Elizabeth Eaker Sargent
Carrie A. Spicer
Devin Thauberger
William Shane Ward
Vanessa Marie Westbrook
Myrtle Alice Williams
Stevie Lynn Feige
Craig Greer
Roy Anthony III Jones
Joseph C. Jr. Randall
Rachel Ann Zacarias

Crime vs Abuse Reporting in a SNF

The new 1457648988536Medicare SNF Requirements of Participation (ROP) revisions involving the abuse, neglect and exploitation reporting requirements have caused some confusion with the existing Crime Reporting Requirements that were enacted as part of the Elder Justice Act and incorporated into the new ROPs.

There were no changes to the Crime Reporting Requirements. Covered individuals are required to report to the State Agency and local law enforcement a reasonable suspicion of a crime against a resident. If the event that caused the suspicion results in serious bodily injury to the resident, then the reports must be made within 2 hours. All other reports may be made within 24 hours.

In an apparent effort to align the crime reporting requirements with the reporting requirements for allegations of abuse, neglect, exploitation or mistreatment, the new ROPs revised the required time frames for reporting such allegations to the Administrator and the State Agency. However, providers should note that the time frames are not the same.

The new rule states that the “facility must ensure all alleged violations involving abuse, neglect, exploitation or mistreatment, including injuries of unknown origin and misappropriation of resident property are reported immediately [to the Administrator and State Agency], but not later than 2 hours after the allegation is made, if the events that caused the allegation involve abuse or result in serious bodily injury, or not later than 24 hours if the events that cause the allegation do not involve abuse and do not involve serious bodily injury.”

03_2hourWhat does this mean?

  • All allegations of abuse, regardless of whether there is serious bodily injury, must be reported to the Administrator and State agency within 2 hours. Note, however, that unless the individual has a “reasonable suspicion” that a crime has been committed, law enforcement would not need to be notified of all allegations of abuse.
  • Any injury of unknown origin that involves a serious bodily injury (e.g., a fractured skull or femur), would also need to be reported to the Administrator or the State agency within 2 hours.

Please note that this alert is intended to be informational only, and is not intended to be nor should it be relied upon as legal advice.  Rolf Goffman Martin Lang LLP will not be responsible for any actions taken or arrangements structured based upon this alert.  The receipt of this alert by an organization that is not a current client of Rolf Goffman Martin Lang LLP does not create an attorney-client relationship between the recipient and the law firm.

©2017. Rolf Goffman Martin Lang LLP.  All Rights Reserved.