Thursday, May 30, 2013

Hurricane Preparedness Week

Though much of the Northeast United States is still reeling from the devastating impact of Hurricane Sandy last fall, it is time again to prepare for hurricane season. This week marks Public Health Emergency's (PHE) Hurricane Preparedness Week 2013.

While it is always important to have disaster plans in place, long term and post-acute care facilities face special challenges when preparing for emergencies. With a few simple steps to get started, each facility can begin to build a plan that will best protect its staff, caregivers, and residents. AHCA continues to monitor the latest developments in emergency preparedness and will provide resources, guides, and insight to disaster prep.  For all of AHCA's disaster resources, please visit our website.

Hurricane Preparedness Steps: 
The following steps come from PHE's website. They are designed for the general public, but the steps here create a strong foundation for any emergency preparedness plan.

  1. Make a Plan: Be sure your staff know and understand how to execute emergency plans.
  2. Learn to Evacuate Safely: To what facility will your residents be transferred?  Do you have supplies to care for them in the event of a facility evacuation?
  3. Get Your Phone Ready for Hurricane Season: Have emergency contact numbers clearly posted in a visible spot.
  4. Have a Plan for Power Outage: With technologically advanced medical equipment comes a dependency on power sources. Be sure your facility has proper back ups, such as oxygen concentrators, etc.
  5. Prepare for Mental Health Needs: Disasters certainly cause stress and potentially emotionally trauma. Be prepared to address these needs for your staff, residents, and family members.
  6. Join the Public Health Response: Learn how to get involved in your community.

Thursday, May 16, 2013

Court Strikes Down NLRB Union Posting Requirement

The United States Court of Appeals for the D.C. Circuit has issued a ruling striking down the National Labor Relations Board’s (NLRB) notice of employee rights posting requirement. The federal rule would have required businesses to put up posters informing workers of their right to form a union. The ruling found that the NLRB violated employers' free speech rights in trying to force them to display the posters or face charges of committing an unfair labor practice. In addition, two judges of the three judge panel believed the rule, requiring the Notice posting, exceeded the NLRB’s rule making authority under the National Labor Relations Act (NLRA).

The court’s decision was reported by Benesch, Friedlander, Coplan and Aronoff, an OHCA Associate Member. Benesch served as lead counsel to the National Association of Manufacturers in this case. According to Benesch, it is not known if the NLRB will take the matter to the Supreme Court. For more information about the court decision, see the Forbes article.

New CMMI Innovation Grants Offer Unique Funding Opportunity for PAC Providers

On Wednesday May 15th, The Center for Medicare and Medicaid Innovation (CMMI) announced a new $1 billion initiative that will provide grant funding to awardees to test new innovative care delivery and payment models. This is the second round of health innovation grants; awardees of the first round were announced last May. Unlike the very first round, which lacked specific focus, this round has narrowed its focus to specific settings and patient populations, and it places a special attention on post-acute care providers. AHCA recognizes the value of this opportunity for its members, and will be offering two webinars in the coming weeks to explain the program in more detail – stay tuned! More information on the Health Innovation Awards – Round Two can be found on CMMI’s website, or by clicking here. Please contact James Michel ( with any questions.

Observation Status Coalition Heads to Capitol Hill

This week, AHCA and the observation status coalition headed to Capitol Hill as a group to meet with members of Congress and their staff to raise the issue of Medicare beneficiaries’ access to skilled nursing facility (SNF) care being constrained by the increased use of extended hospital stays in observation status. Specifically, the group is advocating for the Improving Access to Medicare Coverage Act of 2013 (S. 569/H.R. 1179), which aims to ease access to skilled nursing care for Medicare beneficiaries following a hospital stay. The coalition brought with it a fact sheet signed by a dozen organizations including AHCA/NCAL, the American Medical Association, AMDA, the Center for Medicare Advocacy, Inc., LeadingAge, the National Academy of Elder Law Attorneys, Inc., the National Association of Professional Geriatric Care Managers, the National Association of State Long-Term Care Ombudsman Programs, the National Consumer Voice for Quality Long-Term Care, the National Senior Citizens Law Center and the National Committee to Preserve Social Security and Medicare. AHCA staff have been hitting the Hill since the bill was introduced in March and welcome the opportunity to work in a coalition with others interested in advancing the legislation. The coalition will continue to meet with key Congressional offices to garner support for the Improving Access to Medicare Coverage Act.

AHCA has long advocated that all days spent in a hospital, regardless of “inpatient” or “observation” status, should count toward Medicare’s three-day hospital stay requirement. In order to access the SNF benefit under Medicare Part A, patients currently must be admitted to a hospital for at least three days. S. 569 and H.R. 1179 would deem time an individual spends under observation status eligible to count towards satisfying the three-day requirement. Senator Sherrod Brown (D-OH) introduced S. 569, and Representatives Joseph Courtney (D-CT) and Tom Latham (R-IA) introduced companion legislation, H.R. 1179, in the House of Representatives.

AHCA has made the Improving Access to Medicare Coverage Act a top priority, and AHCA/NCAL members attending Congressional Briefing on June 3-4 will have the opportunity to advocate for this important legislation. For more information on this issue, please feel free to contact AHCA or visit the Observation Stays page on AHCA will continue to provide updates on this important matter.

Wednesday, May 15, 2013

National Nursing Home Week Highlights Team Care

Legendary basketball player Michael Jordan once said, “Talent wins games, but teamwork and intelligence wins championships.”

This philosophy helped shape the Team Care theme of this year’s National Nursing Home Week (NNHW) that we’re celebrating throughout the week of May 12-18, 2013 with skilled nursing facilities (SNFs) across the country. Team Care recognizes the vital networks that not only run, but also maintain superior service and quality for SNF residents and patients.

It’s no secret that personalized care is essential to optimal outcomes and customer satisfaction, and in order to achieve that, all members of a care community must rise to the occasion—staff, nurses, CNAs, therapists, consultants—and collaborate with one another, their residents, and their families. Team Care particularly emphasizes the importance of letting Everyone Pitch In, and encourages open communication between residents, their family members, and their care team. Better communication can only lead to a better understanding of the individual resident’s needs, and in turn, stronger person-centered care.

NNHW also encourages SNFs to cultivate relationships between residents and community members by offering volunteer opportunities, as well as open houses, tours welcoming VIPs and other guests, and special events for the residents, families, staff and community.

Victories are achieved through teamwork. We want to showcase how your SNF is celebrating this week—check out the NNHW Facebook fan page to share your stories and photos!

Friday, May 10, 2013

Make Energy Saving Fun By Entering EPA's 2013 ENERGY STAR Competition!

It’s that time of year again! The U.S. Environmental Protection Agency (EPA) is accepting applications for its 2013 ENERGY STAR National Building Competition, when commercial buildings and tenants across the United States compete to see who can shed the most energy waste.

What is it? This is a great opportunity to demonstrate your environmental leadership, add some fuel to your energy management program, and reduce your operating costs. Competitors in 2012 who reduced their energy consumption saved an average of $25,000 and reduced energy consumption by 8 percent

If you compete, you’ll get ready-to-use materials from EPA to help you promote your participation and energy-saving successes. And your efficiency efforts reduce greenhouse gas emissions, resulting in a cleaner, healthier environment for the rest of us. It’s a win for your bottom line and a win for the planet.

New for 2013: For the first time ever, commercial tenants are invited to compete alongside buildings. So whether your organization occupies a whole commercial building or part of one, you can register and compete for the title of Biggest Energy Loser!

Sign me up! The registration period is now open and will run through May 31. Visit to learn more, sign up for an informational webinar, or register one or more commercial buildings or tenants.

Medicare Transitions Away from Common Working File

Earlier this year, CMS announced that the Common Working File (CWF), which is used by providers to access beneficiaries’ Medicare eligibility information, will be terminated as it falls out of compliance with new Health Insurance Portability & Accountability Act (HIPAA) regulations. CMS has advised providers that use the CWF to transition to their alternative tool, the HIPAA Eligibility Transaction System (HETS) as soon as possible to avoid any disruptions in their daily operations. Providers will not be able to access the CWF for eligibility information starting in April of 2014. You may click here for more guidance and information on this issue (login required). If you have any questions, please contact James Michel.

Thursday, May 2, 2013

OIG State False Claims Act Update

In April, US Department of Health and Human Services, Office of Inspector General (OIG), released its state False Claims Act (FCA) update, done in consultation with the US Attorney General. OIG and the Attorney General determine whether states have FCAs that qualify for an incentive under the Social Security Act (SSA), Section 1909. States deemed to have qualifying laws receive a 10-percentage-point increase in their share of any amounts recovered under those laws. By way of background, to qualify for the financial incentive, a state’s FCA must:
  1. Establish liability to the state for false or fraudulent claims, with respect to Medicaid spending; 
  2. Contain provisions that are at least as effective in rewarding and facilitating qui tam (i.e., whistleblower) actions for false or fraudulent claims; 
  3. Contain a requirement for filing an action under seal for 60 days with review by the State Attorney General; and 
  4. Contain a civil penalty that is not less than the amount of the civil penalty authorized under the federal FCA. 
Since the effective date of Section 1909, the federal FCA has been amended by the Fraud Enforcement and Recovery Act (FERA), the Affordable Care Act (ACA), and the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). These three acts, among other things, amended bases for liability in the federal FCA and expanded certain rights of whistleblowers. As a result of these amendments, OIG must now analyze Section 1909 compliance using the federal FCA as amended; and provide a 2-year grace period, ending on March 31, 2013, during which state acts that were previously approved by OIG will continue to be deemed compliant pending state act amendment and resubmission to OIG. Therefore, all State acts that have not yet been approved will be reviewed in reference to the federal FCA amendments. State acts that have been approved in the past will be considered compliant until March 31, 2013. After March 31, 2013, a previously approved State act will no longer qualify for the Section 1909 incentive unless it has been amended and resubmitted to OIG; and either approved by OIG; or under review by OIG.

States interested in requesting that OIG review its state FCA should submit a complete copy of the law and any other relevant information to:

Office of Inspector General
Office of Counsel to the Inspector General
U.S. Department of Health & Human Services
Cohen Building
Mail Stop 5527
330 Independence Avenue, SW
Washington, DC 20201

 To obtain a copy of OIG’s FCA Update go to

OIG Revised Provider Self-Disclosure Protocol

In April, the US Department of Health and Human Services, Office of Inspector General (OIG) revised its Provider Self-Disclosure Protocol (SDP) again - it was originally published in 1998, and updated in 2006, 2008, 2009 and now 2013. This most recent revision replaces the original publication and updates. By way of background, all individual or entities subject to OIG’s civil monetary penalty (CMP) authority are eligible to use the SDP to resolve any liability arising from a potential violation of federal criminal, civil or administrative laws where CMPs are authorized. Conduct where CMPs are not authorized, e.g., simple overpayments or errors, are not eligible for resolution through the SDP.

In the updated SDP, OIG continues to emphasize the importance and benefits of voluntary disclosure; and attempts to streamline the internal process for disclosures to reduce the average time a case is pending with OIG. To keep within the new timeframe, OIG requires that internal investigations and damage calculations be submitted 90 days from the date of an initial submission versus 90 days from acceptance into the SDP. This tightened timeframe may prove challenging. For disclosures involving false billing, OIG requires the disclosing provider to conduct a review to estimate the improper amount paid by the federal healthcare programs. These damage estimates can be derived from the actual claims submitted or from a sample.

For disclosures involving excluded persons (which is the most common scenario for LTC providers), OIG clarified that the disclosing party must describe:
  1. identity, job and dates of employment of excluded individual;
  2. screening and background check procedures; 
  3. how the conduct was discovered; and
  4. any corrective action taken.
Before making this type of disclosure, the provider must screen all current employees and contractors against OIG’s List of Excluded Individuals and Entities (LEIE), and estimate damages related to the excluded individual. To obtain a copy of the SDP go to

Genesis v Symczyk – A Win for the Employer

In April 2013, the US Supreme Court issued a decision in Genesis v Symczyk, making it easier for employers to limit the scope of wage and hour “collective actions,” under the Fair Labor Standard Act (FLSA). In this decision, the US Supreme Court held that an employer can obtain dismissal of collective actions when the named plaintiff’s claim becomes moot, clarifying that that there is no “headless class” (i.e., a class without a representative plaintiff) under the FLSA.

By way of background, the underlying issue in the case was whether a former employee who no longer had a personal stake in the outcome of a putative collective action against her former employer for unpaid wages could continue to prosecute her lawsuit in search of other potential complainants. The District Court dismissed the case for mootness, saying there was no real controversy because the employer had already offered the former employee all that she could possibly hope to recover in unpaid wages, and no other employee had opted into the suit.

The U.S. Court of Appeals for the Third Circuit reversed the District Court decision, holding that the case could proceed. The employer filed a petition for US Supreme Court review on Feb. 17, 2012. AHCA/NCAL filed an amicus brief in support of that request. On June 25, 2012, the US Supreme Court agreed to hear the case on its merits. AHCA/NCAL filed another amicus brief in support of the employer, on September 6, 2012. Oral arguments occurred on Dec. 3, 2012, and the US Supreme Court made its final decision in April 2013. AHCA/NCAL has been supporting the employer in these proceedings and is pleased with the outcome.