HEADLINES
Wednesday, July 28, 2010

• Rules supporting “meaningful use” of electronic health records announced
• Announcing the New CCH Health Reform Toolkit
• SNF’s noncompliance with hydration policy puts resident in immediate jeopardy
• Council begins developing national health strategy
• Proposed rule modifies civil money penalties for noncompliant nursing homes

• Medicaid Integrity Program — What You Need to Know 
by Joanne B. Erde, PA

In addition to regularly featured columns such as electronic resources, HIPAA, best practices, coding and billing, and physician compliance, the July/August 2010 issue of the Journal of Health Care Compliance includes the following articles:

• State Offices of Medicaid Inspector Generals: Implications for Medicaid Fraud Enforcement, written by Jack Wenik, discusses the trend toward state Offices of Medicaid Inspector Generals, the implications for self-reporting and anti-fraud and waste efforts, and their effect on compliance programs.
• The Health Care Reform Bill: Compliance Implications for Behavioral and Mental Health Services, written by Dinh Nguyen, discusses the changes in the behavioral and mental health services climate and proactive approaches that can be taken to mitigate potential exposure to increasing regulatory liability.
• Medicaid Integrity Program - What You Need to Know, written by Joanne B. Erde, provides an overview of what to expect from a Medicaid Integrity Audit, including the establishment of a Medicaid Integrity Program (MIP) and how the MIP process works: from data review, through the audit, to recoupment.
• Medication Management for Medical Practices and Physicians, written by D. Scott Jones, discusses the prevalence of medication errors; how Medicare Part D has increased the focus on the prescribing practices and utilization of doctors; and additional regulatory scrutiny regarding CDC vaccine management guidelines, OSHA bloodborne pathogen standards, and FDA labeling requirements.

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Final rules designed to help improve Americans’ health, increase safety, and reduce health care costs through expanded use of electronic health records (EHRs) have been announced by HHS Secretary Kathleen Sebelius. A final rule from CMS describes the Medicare and Medicaid program incentives for meaningful use of EHRs, and a final rule from the HHS Office of the National Coordinator for Health Information Technology (ONC-HIT) specifies the technical standards for certified EHR technology. Both final rules will be published in the Federal Register on July 28, 2010. The regulations will be effective 60 days after publication in the Federal Register.

The CMS final rule implements provisions of the American Recovery and Reinvestment Act of 2009 (ARRA) (P. L. 111-5) that provide incentive payments to eligible professionals (EPs), eligible hospitals and critical access hospitals (CAHs) that adopt and successfully demonstrate meaningful use of certified EHR technology.

The final rule specifies: (1) the initial criteria EPs, eligible hospitals, and CAHs must meet in order to qualify for an incentive payment; (2) the calculation of the incentive payment amounts; (3) payment adjustments under Medicare for covered professional services and inpatient hospital services provided by EPs, eligible hospitals, and CAHs failing to demonstrate meaningful use of certified EHR technology; and (4) other program participation requirements.

These Medicare and Medicaid incentive payments are part of a broader effort under the Health Information Technology for Economic and Clinical Health (HITECH) Act, which was adopted as part of the ARRA economic stimulus legislation in 2009, to accelerate the adoption of HIT and utilization of qualified EHRs by healthcare providers. As much as $27 billion over ten years will be expended to support adoption of EHRs.

The proposed rule, published on January 13, 2010 (75 FR 1844, Health Care Compliance Reporter, ¶730,079), described the new set of regulations that will be adopted under the final rule, "Standards For The Electronic Health Record Technology Incentive Program" (42 C.F.R. Part 495), along with amendments to regulations related to payments to hospitals, CAHs and MA organizations.

Requirements for meaningful use incentive payments will be implemented over a multi-year period, phasing in additional requirements that will raise the bar for performance on IT and quality objectives in later years.

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In response to the new health reform laws—Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act of 2010—Wolters Kluwer introduces the CCH Health Reform Toolkit, a complete suite of electronic workflow tools for navigating the nearly 3,000 pages of legislation through easy-to-understand topics related to the hospital, pharmaceutical, and legal industries.

The Toolkit will further keep you abreast of all future Health Reform impact by automatically tracking related amended regulations, rules, new legislation, and primary source documents, providing access to full text documents and weekly email notifications so that you can keep on top of all guidance and changes that the government agencies release.

The CCH Health Reform Toolkit is available with links to the CCH Medicare and Medicaid Guide laws, regulations and explanations, incorporating industry trusted content with new workflow tools; or as a stand-alone product incorporating the e-version of the CCH Law, Explanation & Analysis book on these health reform laws.

To learn more about the CCH Health Reform Toolkit, please go to http://health.cch.com/Products/Health-Reform-Toolkit.asp; or contact your local sales rep at 888-224-7377.

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CMS correctly imposed an immediate jeopardy-level civil monetary penalty and a denial of payment for new admissions on a skilled nursing facility (SNF) for failing to notify a resident’s physician and family when a significant change occurred in his condition and for failing to provide each resident with sufficient fluid intake to maintain proper hydration and health, according to the U.S. Court of Appeals, Sixth Circuit. Additionally, the Sixth Circuit found that it was not arbitrary or capricious for an administrative law judge to conclude that it would only review those deficiencies that had a material impact on the outcome of the dispute, in the interests of judicial economy.

While the SNF argued that there was not a "significant change" in the resident’s condition (see 42 C.F.R. § 483.10(b)(11)), substantial evidence supported the finding of fact that a substantial change had occurred in the resident’s physical condition when he lost 18.5 pounds over a three-week period, which triggered the regulatory obligation to notify the resident’s physician and family. The SNF argued against the finding of a significant change because the Department Appeals Board did not refer to a specific date or benchmark when such a change would have occurred.

Federal law requires SNFs to "provide each resident with sufficient fluid intake to maintain proper hydration and health" (see 42 C.F.R. §483.25(j)), and the SNF failed to substantially comply with this regulation by not following its own hydration policies, the court stated. Even though the regulations did not specifically require the SNF’s procedure of calculating resident hydration needs, once a facility chooses a method of assuring sufficient fluid intake, a CMS surveyor is permitted to rely on that chosen method as its standard of compliance, according to the court. Substantial evidence showed that the SNF’s staff was not knowledgeable of or compliant with the facility’s hydration monitoring policies and procedures.

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Council begins developing national health strategy