• Alabama Supreme Court Rules in Arbitration Case

    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.

    • 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.

    • 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.

    • 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

    Birmingham, Alabama 35209

    (:205.414.2649 (direct) | 7:205.414.2632 (fax)

    (:205.542.2771 (mobile)

    Categories :
  • Mandatory Corporate Compliance is Here: Are you Ready?

    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:

    • Review the essential structure and elements of an effective nursing home corporate compliance program based on existing guidance and the provisions of the ACA;

    • 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

    Categories :
  • Potential Liability and Regulatory Impact

    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.

    US Department of Justice - Marketing Aranesp in Nursing Homes


    Categories :
  • Out of the Penalty Box

    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

    Out of the Penalty Box

    Categories :
  • Medicare Audit Improvement Act of 2013 (H.R. 1250)

    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.