• Payroll Based Journal

    Friday January 8, 2016

    In accordance with Section 6106 of the Affordable Care Act facilities are required to electronically submit staffing information to drive accountability effective July 1, 2016.

    Providers will be required to submit their staffing and census data quarterly. They will have 45 days after the last day in each fiscal quarter to submit - making the due date for the first PBJ submission November 14, 2016

    Get Ready With These Five Steps:   

    1.  Identify & Classify All Direct Staff - all direct care staff (including agency and contract staff), does not include individuals whose primary duty is maintaining the physical environment (example housekeeping).
    CMS defines direct care staff as those individuals who, through interpersonal contact with residents or resident care management, provide care and services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being.

    · Create a Unique Employee ID - for each direct care employee; should not contain any personally identifiable information, such as a Social Security Number (SSN).

    · Hire Date - the first date of a staff member's employment and is paid for services rendered, either through direct employment or under contract. Note: Contract Employees -first date worked at the facility and billed for.

    · Termination Date - the last date of a staff member's employment and is paid for services rendered either through direct employment or under contract. Note: Contract Staff - the last date the facility communicates that the contract employee will no longer be providing services (either voluntary or involuntary).

    · Pay Type Code - categorizes the staff member as a direct employee of the facility (exempt or non-exempt), or hired under contract and paid by the facility. Note: non-exempt - entitled to overtime pay, exempt - not entitled to overtime pay, contract - individuals under contract and individuals who provide services through organizations that are under contract.

    2.   Assign CMS Job Codes - identifying and assigning a CMS job code to an employee for each and every shift to ensure a payroll-based reporting submission is accurate and complies with CMS requirements. CMS has defined 37 job Codes to be used when reporting direct care hours worked. Facilities should report the hours worked based on an employee/s primary function for that shift.

    There must be a job code attached for every hour submitted through the PBJ system. Job responsibilities can change multiple times throughout the day and CMS recognizes that most roles have a variety of non-primary duties that are provided throughout the day.

    Assign each position and shift a job code, this job code should be used and paired with the direct care staff including agency and contract staff, which works those shifts.

    See Attached CMS PBJ Version 1.0 Policy Manual Table 1: Labor and Job Codes and Descriptions.

    3.   What Should Be Counted, What Should Not Be Counted? - It is important for facilities to know what should and should not be reported in the PBJ when compiling a complete an accurate file for submission. CMS has provided situations where direct care hours worked should not be reported:

    · Hours paid for any type of leave or non-work related absence from the facility.
    · Any unpaid overtime (a salaried employee works 10 hours but is only paid for 8 hours).
    · Hours for services performed that are billed to FFS Medicare or other payer.
    · Hours providing services to residents in non-certified beds.

    One of the biggest challenges for submission of the PBJ will be to gather and aggregate staffing data from disparate sources. Direct care hours are usually tracked through time and attendance systems. The following situations could possibly be overlooked but should be reported:

    · Contract and Agency work.
    · Corporate staff at a facility performing task/duties that fit into a CMS job category (e.g. Regional Director fills in for the Administrator that's out on vacation or leave).
    · Salaried staff that do not clock in or clock out.

    4.   Create a Checks and Balances System - CMS provided examples of the difficulty facilities may experience in their ability to appropriately track and allocate exact hours.

    · For Medical Directors, it might be difficult to allocate the exact hours spent performing medical director duties as opposed to primary care duties.
    · For Consultants, it might be difficult to identify the exact hours a specialist contractor (e.g. non-agency nursing staff) is on-site.

    (Note: It is important for facilities to define their expectations within their service provider contract.)

    (CMS has stated that the hours reported should be based on payments made for services and be verified through payroll, invoices and/or tied back to contract).

    5.   Start Now and Be Ready - Your success will be determined based on staffing with the PBJ staffing measurements by implementing a proactive process to identify and adjust staffing levels. Staffing is a challenging process with constant shift updates including call-offs, time-off requests, employee no-shows, and fluctuations in census, activity, acuity and workload.

    Set up a process that allows staffing information to be easily accessed, create dashboards that identifies staffing requirements based on census, against budgeted hours. If gaps are identified adjustments should be made.

    CMS has identified staffing as a key component in delivering quality care and positive resident outcomes. They use staffing information in the Nursing Home Five Star Quality Rating System to help consumers understand the level and differences of staffing in nursing homes. CMS requires facilities to submit CMS Form 671 and CMS Form at the time of survey to calculate the Staffing Domain of the Five Star Rating System.

    Hopefully utilizing these 5 steps will help your facility achieve the staffing and management goals that will enable you to correctly document and report direct care hours worked.

     Payroll Based Journal

  • CMS Scheduled Extended Maintenance – March 16, 2016 – March 21, 2016

    Wednesday January 20, 2016

    Just a quick heads-up from the team at eHDS. See below for a notice received from CMS. Please plan accordingly!

    Please be aware that CMS has planned an off-schedule extended maintenance period for all of the national QIES systems, which include the MDS 3.0 Submission and CASPER systems, for Wednesday, March 16, 2016 beginning at 8:00 PM ET and continuing through Monday, March 21, 2016 at 11:59 PM ET.

    This makes for a 5+ day window where all of the national QIES systems will be offline and providers will be unable to transmit any MDS assessments or obtain reports. This also applies to vendors who submit assessments on the providers' behalf. CMS has started to post notices to the related application and support websites that encourage vendors and providers to take this downtime into account and plan their business around it.

    This information is also noted on your Care Watch home page. We recommend making sure your team is well informed and is planning for this scheduled downtime.

    For access to the original CMS notice, please click here. 

    eHealth Data Solutions 

  • Zika Virus

    Tuesday February 9, 2016

    The link below contains information from the Centers for Disease Control (CDC) about the Zika Virus including areas with Zika, Prevention, and Symptoms, Diagnosis and Treatment.


  • MDS 3.0 Staffing Focus Survey

    Tuesday March 1, 2016

    MDS 3.0 Focused Pilot Surveys were conducted in June and July of 2014 in 5 states, and in 2015 the MDS Focus Surveys were conducted in all states.  The Surveys consist of a review of MDS 3.0 assessments, medical records, interviews with staff and residents, and resident observations.  This enables Surveyors to review the nursing home resident assessment processes in-depth, more so than during an annual survey. The MDS Focus Survey, the Focused Survey Facility Worksheet, the Electronic Staffing Data Submission Payroll Based Journal, and the Preparation for MDS Focus Survey are included in the attachments below. 

    Click here to download "MDS Focus Survey Entrance Conference Worksheet"
    Click here to download "MDS Focus Survey Facility Worksheet"
    Click here to download "MDS FOCUS SURVEY 5-27-2015"
    Click here to download "PBJ-Policy-Manual-Draft"
    Click here to download "Preparation for MDS Focus Survey Checklist"


  • Phase 2 HIPPA Audits

    Wednesday June 15, 2016

    In an effort to review and examine compliance with the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations ("HIPAA"), the Department of Health and Human Services Office for Civil Rights ("OCR") is conducting Phase 2 HIPAA audits for both covered entities and business associates. OCR is conducting the audits to assess new risks, identify effective privacy and security measures, and develop targeted guidance on specific areas of concern.

    The first step in the audit phase is a pre-audit screening email sent to potential auditees. We have seen several of these delivered recently. A sample of the pre-audit screening email can be found here. The email contains a questionnaire addressing size, entity type, services, contact information, and other background information. The online questionnaire must be completed and returned to OCR within 30 days. Based on the responses received and the information gathered, OCR will create a smaller, representative sample audit pool. Thus, not all entities that receive the initial pre-audit screening email will be audited. However, failure to respond to the questionnaire will not remove an entity from the audit selection pool. OCR will use publicly available information about an entity if it receives no response within the 30-day timeframe.

    Every covered entity and business associate is eligible to receive the pre-audit screening email and to be entered into the audit selection pool. However, at this point, we believe the screening e-mail is being sent to entities who have filed a breach notification report with OCR. Based on the responses to the pre-audit questionnaire contained in the screening e-mail, OCR will choose a representative sample of auditees. Entities will be notified if selected.

    Phase 2 audits will target areas of frequent non-compliance with HIPAA, such as risk management, privacy practices, individual access to protected health information ("PHI"), breach notifications, and electronic security. Most audits will not involve site visits, though some may. Once an entity is selected for the audit process, it has only 10 days to respond to OCR's audit request, submit all requested documentation through OCR's online portal, and provide a listing of its business associates. While OCR has not stated the exact information that will be requested, we suspect the information requests will include, among other things, HIPAA policies, procedures, and plans, listing of systems that house electronic PHI, risk assessment(s), breach notification documents, Notice of Privacy Practices and other HIPAA forms, and a business associate listing.

    Depending on an entity's size, the 10-day window may leave little time to compile and provide the requested information. Thus, while receiving the pre-audit screening e-mail does not guarantee that an entity will be audited, it is recommended that receiving entities take proactive steps to prepare in the event they are ultimately audited. Recommended steps include the following:

    ·         Assemble a HIPAA response team and hold an initial meeting so that everyone may be prepared in the event of an audit. Potential team members may include your privacy officer, security officer, compliance officer, IT department supervisor, and administrator.

    ·         Locate all HIPAA-related materials so that they can be gathered quickly in the event of an audit.

    ·         Review HIPAA policies and procedures to make sure they are up to date, operating effectively, and do not contain any gaps.

    ·         Review HIPAA forms to make sure they are up to date and are being properly used.

    ·         Compile a listing of business associates, which, for larger entities, could take a significant amount of time. There are several pieces of information OCR has indicated it will request with respect to business associates. A template form for gathering this information is available here. While use of the template is not required, it does ensure inclusion of all the business associate information OCR is seeking.

    ·         In relation, confirm that a business associate agreement is in place for each instance where one is required. We have seen some recent enforcement actions whereby covered entities have been fined for not having a business associate agreement in place when one was required.

    ·         Compile and review the latest risk assessment(s) to make sure they are still valid and cover all the systems that house, transmit, and store electronic PHI. (We have seen recent enforcement actions whereby covered entities have been fined for not having a risk assessment or a series of risk assessments that cover all relevant systems.)

    ·         Compile an inventory of systems and system assets that house, transmit, and store electronic PHI.

    OCR has indicated that the Phase 2 audits are not designed to determine an entity's compliance with HIPAA. Nonetheless, OCR has retained the right to initiate a compliance review based on information received during an audit. Thus, we believe it is worthwhile to take the steps mentioned above in order to help reduce the risk of a compliance investigation. 

    For more information on the Phase 2 HIPAA audits, please contact any of the Burr & Forman attorneys listed below.

    Howard Bogard

    Partner ~ AL
    (205) 458-5416

    Richard Brockman

    Counsel ~ AL
    (205) 458-5175

    Kelli Fleming

    Partner ~ AL
    (205) 458-5429

    Jim Hoover

    Partner ~ AL
    (205) 458-5111

    Chet Hosch

    Partner ~ GA
    (404) 685-4279

    Matt Kroplin

    Partner ~ TN
    (615) 724-3248

    Jack Mooresmith

    Counsel ~ AL
    (334) 387-2072

    Angie Smith

    Partner ~ AL
    (205) 458-5209

    Jerry Taylor

    Partner ~ TN
    (615) 724-3247

    Chris Thompson

    Associate ~ AL
    (205) 458-5325

    Rob Williams

    Partner ~ FL
    (813) 367-5712

    Tom Wood

    Partner ~ AL
    (251) 345-8203

    No representation is made that the quality of services to be performed is greater than the quality of legal services performed by other lawyers. ADVERTISEMENT


  • What Do Long Term Care Organizations Need to Do to Comply With the New Overtime Regulations

    Friday June 17, 2016

    The article below from Starnes Davis Florie LLP addresses the new overtime regulations for Long Term Care Organizations that will go into effect on December 1, 2016.

    Click here to download "New Overtime Regulations"
  • Workplace Violence

    Tuesday October 18, 2016

    Introduction:  Workplace Violence is the second leading cause of work-site deaths in the United States according to the Bureau of Labor Statistics, and is one of the most frightening exposures companies face. Such an incident can devastate a company, destroying its bottom line and even threatening it survival. Workplace Violence Expense Insurance will help you prepare for an unthinkable event like this if it should happen at your facility. Here are some of the reasons why your facility should consider buying workplace violence expense insurance:

    ·         The expenses incurred in the aftermath of a workplace violence incident are often staggering and unforeseen

    ·         Unexpected expenses can stem from crisis management, independent security, employee counseling, public relations, medical care for employees, salaries for victim employees and for replacement employees and loss of business income

    ·         Long term care facilities are at an increased risk of workplace violence because they deal with members of the public and operate late at night

    The attachment below contains Chubb Insurance Company's Forefront Portfolio Risk Analyzer which may help you uncover some of the biggest potential threats to your facility's bottom line. Gerry Gilbert in our office can assist you in identifying possible financial exposures your facility might have. Gerry can be reached at 205-414-6184 or by email at gerry_gilbert@ajg.com .

    Click here to download "Workplace Violence Risk Analyzer"


  • Dementia Focus

    Tuesday November 29, 2016

    The article below focuses on CMS's national goal to reduce the use of antipsychotic medication use in long term care nursing homes by 30% by the end of 2016.With the improvement of dementia care in nursing facilities, there have been significant reductions in the prevalence use of antipsychotics for long term care residents. This article will provide you with the requirements that facilities must follow to make sure residents don't have unnecessary declines in the development of their Dementia.   

    Click here to download Dementia article.