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Monday April 1, 2013
The Alabama Supreme Court decided on a nursing home arbitration
case on 3/22/2013 that has restricted somewhat the enforceability
of our arbitration agreements, SSC Montgomery Cedar Crest Operating
Company v. Linda Bolding, as attorney in fact and next friend of
Norton Means. The decision specifically indicates that in the case
of an incompetent resident, arbitration agreements will be enforced
only if the person who signs the agreement has been appointed by
the resident as durable power of attorney (DPOA) or has some other
valid legal authority to act on the resident's behalf other than
simply being the next of kin or being appointed as the
sponsor.
What appears to be missing from the decision is whether the
resident was competent when the arbitration agreement was
signed. Unless a resident has been adjudicated to be
incompetent by a probate judge, having a diagnosis of dementia or
Alzheimer's diagnosis may not necessarily mean a resident is
considered incompetent. If unsure whether the resident may or may
not be competent to sign, we would suggest that you have the
resident sign along with the power of attorney(POA) or the
signature of someone with valid legal authority to act on the
resident's behalf such as a guardian, conservator, or health care
proxy.
It available, you may wish to review a copy of one of the three
cognitive tests that was or has been given to the resident shortly
before or after the resident signed the arbitration agreement.
Although not officially guaranteed, the score could give you a clue
as to whether the resident has or had the capacity to consent and
sign the arbitration agreement on their own behalf.
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With a SLUMS score of 20-21 or less consistently, the resident
probably should not consent or make their own decisions
unilaterally. With a score of ≤21, it would be helpful to have the
legally authorized representative sign too.
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With a BIMS score of 10 or less consistently, the resident
probably should not consent or make their own decisions
unilaterally. With a score of ≤10, it would be helpful to have the
legally authorized representative sign too.
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If the mini mental status score was less than 15, we presumed
that they probably could not consent or make their own decisions
unilaterally. With a MMSE score of ≤15, it would be helpful to have
the authorized representative sign and consent too.
In conclusion, the Alabama Supreme Court decision does seem to
indicate that an arbitration agreement is enforceable against
the resident and the resident's estate if it is signed by:
1. A competent resident;
2. By a family member on behalf of a
competent resident; or
3. By an attorney in fact under a
durable power of attorney.
The decision does seem to say that an arbitration
agreement is not enforceable if it is signed by:
1. An incompetent resident; or
2. A family member of an
incompetent resident that has not been
appointed as the holder of the DPOA
or appointed as another
authorized legal representative on
behalf of the resident.
If you would like a copy of the decision or to discuss this
case further, please contact Lavonya below:
Lavonya K. Chapman, Esq., RN.|Director of
Claims/Litigation
Arthur J. Gallagher Risk Management Services, Inc.
2200 Woodcrest Place, Suite 250
(:205.414.2649 (direct) | 7:205.414.2632 (fax)
(:205.542.2771 (mobile)
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Tuesday April 2, 2013
Mandatory Corporate Compliance is Here:
Are you Ready?
Approved for 1 hour NAB credit
April 16, 2013
12:00 - 1:00 Eastern
Register Today: $79
Under the Sections 6102 and 6401 of the Affordable Care Act
(ACA), Medicare and Medicaid certified nursing homes are required
to have in place a compliance and ethics program that is effective
in preventing and detecting criminal, civil, and administrative
violations and in promoting quality care. To date, however, the
Centers for Medicare & Medicaid Services (CMS) has yet to
promulgate regulations governing the statutory requirement.
Regardless, facilities must have a plan in place effective March
23, 2013. Is your facility ready?
This webinar will:
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Review
the essential structure and elements of an effective nursing home
corporate compliance program based on existing guidance and the
provisions of the ACA;
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Offer
practical information to create a meaningful corporate compliance
program. Provide understanding regarding how CMS guidance necessary
to implement the ACA's compliance mandate is likely to impact
providers.
To
register for this seminar go to www.care2learn.com
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Monday April 22, 2013
Amgen, Inc., a California-based biotechnology company, has
agreed to pay the United States $24.9 million to settle allegations
that it violated the False Claims Act for marketing Aranesp to
treat anemia in nursing home residents. Aranesp may be
indicated in residents who have anemia associated with conditions
such as renal failure, dialysis or chemotherapy but not necessarily
anemia from other causes. The government alleged that Amgen
distributed materials to consultant pharmacists and nursing home
staff encouraging the use of Aranesp for patients who did not have
anemia associated with chronic renal failure.
Please see the attached release from the U. S. Department of
Justice for additional details.
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Wednesday April 24, 2013
Care2Learn has recently posted a White Paper addressing the
issue of avoiding unnecessary rehospitalizations. The paper states
that roughly 40% of Medicare beneficiaries leaving the hospital are
discharged to a post-acute setting, where the risk for
rehospitalization begins, and the role of the skilled and assisted
living facility and home health agency becomes critical in
prevention. Effective October 2012, The Affordable Care Act
instituted the Hospital Readmission Program, requiring the Centers
for Medicare and Medicaid to reduce payments to hospitals with
excessive 30-day readmissions. Read Out of the Penalty Box to learn
about what you can do to implement evidence-based care processes
and effective training, while partnering across the healthcare
continuum to deliver better patient care and reduce unnecessary
costs to your organization as well as CMS. Explore CMS' new payment
and service delivery models of care that leverage both penalties
and incentives for all healthcare providers.
For more information click on the attachment below or visit
their web site at www.care2learn.com
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Wednesday April 24, 2013
Medicare Audit Improvement Act of 2013 (H.R. 1250)
Legislation has been introduced that would make much-needed
improvements to the Recovery Audit Contractor (RAC) program and
other Medicare audit programs. Representatives Sam Graves (R-MO)
and Adam Schiff (D-CA) introduced the Medicare Audit Improvement
Act of 2013 (H.R. 1250), which, among other measures, would:
- Establish a consolidated limit for medical record requests
- Improve auditor performance by implementing financial penalties
and by requiring medical necessity audits to focus on widespread
payment errors
- Improve recovery auditor transparency
- Assure due process appeals for claims reopenings
- Allow accurate payment for rebilled claims
- Require physician review for Medicare denials
In a separate move, the Centers for Medicare & Medicaid
Services (CMS) issued a proposed rule on March 13, 2013, that would
allow hospitals to be paid full Part B (outpatient) payment for
inpatient claims denied during a RAC audit, when the care is found
to be appropriate at the outpatient level, if the claim is one year
old or less. This time limitation is particularly problematic to
hospitals considering RACs audit claims for services provided
during the previous three years. The Medicare Audit Improvement Act
of 2013 (see above) would fix this Part B underpayment policy.