Breaking Compliance News Blog

A North Carolina Licensed Practical Nurse (LPN) was fired from a nursing home after she posted a series of videos on TikTok. The videos included the following phrases:

• “I’d unplug your vent to charge my cell phone.”
• “Me waking my patient up at 6:55 am to make sure they didn’t [sic] die from all the drugs i gave them to make them go to sleep”
• “Me on my way to give my patients drugs so WE can get some good sleep tonight”

Wow.

It is not a surprise that the statement the nursing home issued about her termination stated:

DOJ, OIG, and Phase 3 requirements - oh my!

It's a little different from lions, tigers, and bears, but can seem just as scary:

What do nursing homes need to address in their compliance programs??

CMS recently announced that it is bringing back routine nursing home surveys.

The OIG has recommended compliance programs for 20+ years - and has guidance on the topic. So does the DOJ. That's a lot to sort through.

Download MPA's SNF Compliance Checklist and learn what needs to be in a SNF compliance program - and how you measure up.

Download now

On November 22, 2019, CMS issued a memorandum with an update on the Phase 3 Requirements of Participation. In this memo, CMS advised:

• CMS will not release updated Interpretive Guidance and training addressing Phase 3 until the second quarter of 2020. CMS is somewhat limited in its ability to survey until then.
• But... nursing homes are still expected to comply with Phase 3 by November 28, 2019.

What does this mean??

It means that, right now, nursing homes are required by law to comply with Phase 3, including the Compliance and Ethics Program requirements - and CMS expects nursing homes to be in compliance.

It can be a HIPAA problem and an abuse problem: when nursing home staff take pictures of residents with their smartphones. Here’s an example.

CNA took photo of deceased resident and shared it to Snapchat

Five CNAs at a New York nursing home took photos and videos of residents—including one deceased resident—on their cell phones and shared them on Snapchat. 

The nursing home was notified of the incident when a member of the public called the administrator and reported that a CNA sent her a photograph of a deceased resident. This CNA admitted taking and sharing photos and videos of eight residents. Her reason for photographing the man who died was “because she was upset that the resident had passed away.” She also took five videos of another resident “mostly yelling and swearing” and sent them to another CNA.

Another CNA admitted that “everyone on the unit on the evening shift was using their cell phones.”

Ladies and gentlemen, long-anticipated compliance program requirements are changing, one more time. Let’s take a look at what has changed – and what hasn’t.

The proposed rule

On July 16, 2019, CMS published a proposed rule that would modify multiple aspects of Phase III of the Long-Term Care Facilities Requirements for Participation (the “Proposed Rule”). The goal of the Proposed Rule is to reduce regulatory burdens and costs, allowing nursing homes to focus resources on providing quality resident care. Some of the most discussed proposed amendments are those to the Compliance and Ethics Program requirements (42 CFR 483.85), which, if finalized, will become effective one year later. With comments from the public due September 16, 2019, our best guess is that enforcement will begin October or November 2020.

Good news: fewer compliance-related F-tags ahead

Nursing homes: LeadingAge (and other associations) successfully lobbied on your behalf. 

Two nursing home certified nurse aides were fired and charged with disorderly conduct after filming a 91-year old resident in distress and posting the video to Snapchat. 

The two aides allegedly took a video recording of the resident in distress, while they waved a gown in her face - and the resident tried to push it away. The video caption read: "[Resident name] hates gowns," and was accompanied by laughing/crying emojis. Staff at the nursing home were aware that this resident did not care for hospital gowns.

Note: This topic is of special interest to our SNF readers. General healthcare compliance and HIPAA topics will return next week!

The Affordable Care Act mandated compliance and ethics programs for all nursing facilities. Medicare and Medicaid will require implementation by November 28, 2019.

Are you ready?

Fortunately, the ACA requirements closely – but not entirely – track the ACA OIG compliance program guidance and the Federal Sentencing Guidelines principles for compliance programs, so providers who have built compliance programs on these documents should be in pretty good shape. Here is what the ACA requires nursing facilities to have by November 28, 2019:

• Written compliance and ethics policies and procedures that are communicated to staff, contractors and volunteers and:
  • Reduce the risk of criminal, civil and administrative violations
  • Promote quality of care
  • Designate a compliance contact to receive reports
  • Include an anonymous way to report non-compliance without retribution
  • Include disciplinary standards
  • Apply to contractors and volunteers
• Assigned high-level personnel oversight for the compliance program, and sufficient resources and authority for such high-level personnel
• Due care not to delegate substantial discretionary authority to individuals the SNF knew or should have known had a propensity to commit a crime
• Auditing and monitoring
• A reporting system
• Consistent enforcement via discipline
• Annual review.* 

*It can take weeks or even months to review a compliance program, so if this is your first experience with annual review, it is a good idea to start early.

Organizations with five or more facilities must also have:

All skilled nursing facilities will be required to have conducted an annual review of their compliance programs by November 28, 2019 (and it’s essential for other providers, too).  SNFs who have not conducted an annual review by November 28, 2019 will be in violation of the law.  

Note: This topic is of special interest to our SNF readers. General healthcare compliance and HIPAA topics will return next week!

The Affordable Care Act mandated compliance and ethics programs for all nursing facilities. Medicare and Medicaid will require implementation by November 28, 2019.

Are you ready?

Fortunately, the ACA requirements closely – but not entirely – track the ACA OIG compliance program guidance and the Federal Sentencing Guidelines principles for compliance programs, so providers who have built compliance programs on these documents should be in pretty good shape. Here is what the ACA requires nursing facilities to have by November 28, 2019:

• Written compliance and ethics policies and procedures that are communicated to staff, contractors and volunteers and:
  • Reduce the risk of criminal, civil and administrative violations
  • Promote quality of care
  • Designate a compliance contact to receive reports
  • Include an anonymous way to report non-compliance without retribution
  • Include disciplinary standards
  • Apply to contractors and volunteers
• Assigned high-level personnel oversight for the compliance program, and sufficient resources and authority for such high-level personnel
• Due care not to delegate substantial discretionary authority to individuals the SNF knew or should have known had a propensity to commit a crime
• Auditing and monitoring
• A reporting system
• Consistent enforcement via discipline
• Annual review.* 

*It can take weeks or even months to review a compliance program, so if this is your first experience with annual review, it is a good idea to start early.

Organizations with five or more facilities must also have:

• A mandatory annual compliance training program, and
• A compliance officer who reports directly to the governing body, with designated compliance liaisons at each site

Note: while these items are only mandatory under the ACA for SNFs with five or more sites, it is a good idea for all SNFs to consider incorporating these items into their own compliance programs. While they are not mandatory for smaller organizations, they will strengthen your program and make it easier to run an effective compliance program.