Nh News Notes - Health Care Financing Administration

Nursing Homes, April, 2001 by Ronald M. Schwartz

OIG: On the Prowl Again

Always probing, always hot on the trail of seemingly unending government misspending and program mismanagement: That's the Department of Health and Human Services (HHS) Office of Inspector General (OIG).According to the OIG's Work Plan for this fiscal year, which ends September 30, staff will be looking for stays in nursing homes that do not meet Medicare's coverage conditions. In addition to recommending corrective action, the OIG will identify homes where a pattern could indicate potential fraud or abuse. Among the OIG's other projects for the year:

Use of Penalties. In December 1999, the Health Care Financing Administration (HCFA), as part of its nursing home initiative, instructed states to more widely impose immediate sanctions, such as fines, against nursing homes. HCFA revised the definition of homes categorized as "poorly performing" and subjected them to immediate sanctions for deficiencies. The OIG will examine trends in the use of penalties before and after the initiative.

Complaint Process. The OIG will examine the timeliness and effectiveness of state nursing home complaint systems. As part of the complaint investigation process established under the 1987 Omnibus Budget Reconciliation Act (OBRA), HCFA in March 1999 directed states to investigate complaints alleging actual harm to residents within 10 working days.

Therapy Services for Medicare Part B. The OIG will review the utilization and the quality of care of physical, occupational and speech therapy provided in 1999. The 1999 Balanced Budget Act required HCFA to recommend a mechanism to ensure appropriate utilization of Medicare outpatient therapy and to establish a payment policy based on diagnostic categories, functional status and prior use of therapy.

Mental Health Services. The OIG wants to make sure that HCFA and Medicare carriers have taken steps, recommended in an earlier OIG study, to prevent inappropriate payment for mental health services.

Follow-Up on Survey and Certification. This study will follow up on two OIG reports in March 1999 on state survey and certification, and trends in deficiency data. OIG will thus be evaluating HCFA efforts to strengthen survey and enforcement efforts.

Nurse Aide Training. The OIG will examine whether nurse's aides complete a training and competency evaluation program within four months of employment, unless the individual has been deemed competent, as required under OBRA.

New Push for Community Services

It seems the Bush administration is headed on the same path as the Clinton administration for having the states implement the U.S. Supreme Court Olmstead decision. The June 22, 1999, Olmstead v LC ruling held that, in appropriate circumstances, the Americans with Disabilities Act (ADA) requires the placement of persons with disabilities in a community-integrated setting whenever possible. Bush, in his first week in office, issued a very detailed plan for enabling disabled individuals to live and function independently, whenever possible. Bush said he would sign an order supporting the most integrated community-based settings for the disabled, in accordance with that ruling.

Bush noted that his father signed the ADA during his presidency, in 1990. "Olmstead has yet to be fully implemented," said the current President Bush, adding that he believes community-based care is "critically important to promoting maximum independence and to integrating individuals with disabilities into community life."

Under the Clinton administration, former HHS Secretary Donna Shalala wrote the nation's governors: "No person should have to live in a nursing home or other institution if he or she can live in his or her community."

Under the Olmstead ruling, Shalala continued, "Unnecessary institutionalization of individuals with disabilities is discrimination" under the ADA.

The Olmstead case was brought by two Georgia women whose disabilities included mental retardation and mental illness. At the time the suit was filed, both plaintiffs lived in state-run institutions, despite the fact that their treatment professionals had determined that they could be appropriately served in a community setting. While the case applied to state-run institutions, it could be broadened to apply to all individuals with disabilities and to those residing in nursing facilities.

It remains to be seen whether Bush and his HHS Secretary, former Wisconsin Gov. Tommy Thompson, will pressure governors to discourage Medicaid nursing home care. Thompson won praise during his Senate confirmation process for establishing Wisconsin's Community Options Program, which provides home- and community-based long-term care alternatives to institutions and nursing homes.

Thompson served as Wisconsin governor beginning in 1986. Sen. Russell Feingold (D-Wis.) predicted Thompson "will use his experience as an innovator to make it easier for states such as Wisconsin to pursue their own reforms, such as making federal long-term waivers more flexible and making it easier for states to apply for those waivers.