Welcome to our first installment of our new blog, FOR YOUR HEALTH: Keeping the Pulse of the Law. We look forward to providing a variety of posts here, regular surveys of the latest developments in the law (and sometimes the business) of long term care, periodic in-depth analysis of a specific relevant issue, and perhaps even the occasional light-hearted fun (yes, even we are capable!). In light of the increasing pressures in long term care (the most recent national census for skilled nursing facilities dropped to an average of 81.6%) , it is important to have a few reliable sources for the latest news and trends that impact your business. We hope this blog can serve you as one of your go-to sources.

In this first post we will simply provide a summary of some recent news relevant to the industry:

Data Standardization and Interoperability:

CMS continues to push its movement toward more standardized and accessible data. With more data at your fingertips, facilities (and other relevant parties such as managed care companies) can position themselves to utilize the data to make better real-time decisions in their operations (see Michael Lewis’ Moneyball for how this revolutionized baseball for example). Intended to be a vehicle to exchange records with other healthcare stakeholders, the new “Data Element Library” is a database for exchange of electronic health information. DEL allows members of the public to view specific data that the Centers for Medicare & Medicaid Services requires of nursing homes and rehab hospitals. It is important to note that the DEL doesn’t contain any patient-identifiable data whatsoever. If you’ve no already done so, you should begin to explore this new tool:

To view the CMS Data Element Library, please visit: https://del.cms.gov/

To view a fact sheet about the CMS Data Element Library, please visit: https://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2018-Fact-sheets-items/2018-06-21.html

NY Nursing Home Class-Action:

In a unique move that could have a significant impact on future nursing home litigations, a New York judge in Onondaga County Supreme Court recently certified a class of former and current residents of a facility in a case claiming that that short-staffing at the facility harmed the residents. The case, Farruggio v. 918 James Receiver, LLC and River Meadows, LLC could clear the way for similar cases in the future. We will need to continue to monitor how this develops.

Nursing Home Compare and the Five Star Quality Rating System:

In July 2018, CMS will begin to provide rates of hospitalizations for long-stay residents in each facility’s confidential “Nursing Home Compare Five-Star Ratings of Nursing Homes Provider Rating Report.” In October 2018, the long-stay hospitalization measure will be posted on the Nursing Home Compare website as a long-stay quality measure. In the spring of 2019, this quality measure will be included in the Five Star Quality Rating System.

In 2017, CMS began posting the number of hours worked by nursing staff submitted through the Payroll-Based Journal (PBJ) system. In July 2018 CMS will begin posting the number of hours worked by other staff (i.e., non-nursing). CMS recently announced the use of PBJ data to calculate staffing measures and facilities' star ratings.

In February 2018, CMS implemented a temporary “freeze" of the health inspection domain of the Nursing Home Five Star Quality Rating System by holding each facility's health inspection rating constant for approximately one year. During the freeze, inspections conducted after November 28, 2017, are not included in facility’s star ratings calculation. This action is part of CMS’s implementation of a new inspection process and Phase Two of the revised Requirements for Participation for Long Term Care Facilities.

Skilled Nursing Facility (SNF) Provider Preview Reports are now available; visit CMS’ Spotlights and Announcements webpage for a list of quality measures based on quarterly data. Review your performance data by July 1, prior to public display on Nursing Home Compare. Corrections to the underlying data are not permitted during this time but you may request a CMS review if you believe that your data is inaccurate.

Skilled Nursing Facility Value-Based Purchasing (SNF VBP) Program:

HHS Secretary Alex Azar has identified value-based purchasing as the key to reducing hospital readmissions and moving skilled nursing facilities and other post-acute care providers to coordinated community care. The proposed Patient Driven Payment Model (PDPM) is expected to be a significant part of that effort, reimbursing skilled nursing facilities based on patient conditions and healthcare needs rather than the volume of services provided. The PDPM final rule is expected to be released in August, to become effective in October 2019.

According to the Secretary, “A system that pays for value will aim to move patients into the lowest-cost appropriate setting. We are interested in ways that Medicare and Medicaid can better support the kind of coordination and integration needed for these transitions”, adding, “[T]he federal government has not always paid the same level of attention to advancing electronic health records in your industry as in traditional healthcare settings, but the potential for a truly interoperable health records system, spanning all settings of care, is huge.”

Phase One of the Skilled Nursing Facility Value-Based Purchasing (SNF VBP) Program’s Review and Corrections process has been completed. The Review and Corrections process provided SNFs with the opportunity to review the information that will be made public for the applicable performance period and submit correction requests to CMS. In Phase One, SNFs were given the opportunity to submit corrections to their Fiscal Year (FY) 2016 information, which will be used as the baseline period RSRR used for the FY 2020 SNF VBP Program year. Phase Two of the Review and Corrections process will begin when annual performance score reports are made available in the Certification And Survey Provider Enhanced Reports (CASPER) system in early August 2018. Phase Two will allow SNFs 30-days to submit correction requests to their SNF VBP performance score and rank only for the FY 2019 Program year. Over the next several months, CMS intends to provide additional resources and training on the Review and Corrections process and how to submit proper Phase One and Phase Two requests.

Stark Law Amendments:

CMS is now seeking public input on reforms to the Physician Self-Referral Law (Stark Law) in light of the movement from a fee-for-service world to a value-based system. In particular, CMS would like to receive information from the industry on arrangements that encourage alternative payment models. You can see CMS’ published request here: https://www.cms.gov/Newsroom/MediaReleaseDatabase/Press-releases/2018-Press-releases-items/2018-06-20-2.html

Medicare Fund Depletion:

The Medicare fund that helps pay for skilled nursing care is projected to run out of funds for full benefits three years sooner than predicted last year, according to a financial review by the Social Security and Medicare boards of trustees. The Medicare Hospital Insurance Trust Fund, which pays for Medicare Part A, is projected to run out of money for full scheduled benefits in 2026, according to the annual financial review of the programs. if the fund can only cover part of the costs of Medicare and the costs remain the same in the future, Congress and whatever administration is in place will face pressure to reset. Addressing this could mean provider cuts.

That wraps it up for our first blog post. We hope you find this helpful and we welcome any feedback and questions as we look forward to bringing you additional informative posts soon.