pulse april 2006 - florida health care association · move to hmo/managed care ... one-fourth of...

A Long Term Care Monitor of Nursing Home and Assisted Living IssuesPulse

APRIL 2006

PRSRT STDU.S. Postage

PAIDTallahassee, FLPermit No. 1007

Florida Health Care AssociationP.O. Box 1459Tallahassee, FL32302-1459

InsideFCAL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7News From Across Florida. . . . . . . . . . . . . . 8LTC Business News .. . . . . . . . . . . . . . . . . . . . 10ESS is Here . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FHCAFLORIDA HEALTH CARE ASSOCIATION

Preventing Entrapment See 1

Update

NHA fee going up

The Florida Board of NursingHome Administrators met by

telephone conference call last month and voted to increase theNHA license renewal fee from $255to $325, effective October 1st, whenall NHA licenses expire. All pro-fessional license holders in Floridaalso pay a $5 fee at license renewalwhich funds fighting unlicensedactivity within that profession.

National NursingHome Week

Legends in Our Own Time is thetheme of this year’s National

Nursing Home Week, celebratedbeginning onMother’s Day,May 14th andcontinuingthrough May

20, 2006.The American Health CareAssociation established the week-long celebration in 1967 to honorboth caregivers and those to whomcare is provided.

FHCA’s FSC concerns

FHCA Executive Director BillPhelan’s February 24th letter to

Agency for Health Care Administra-tion Sec.Alan Levine outlined theassociation’s concerns with aspects of the proposed Florida Senior CareMedicaid managed care programcurrently being considered by CMSand the Florida legislature. “FHCAis concerned that the current under-funding of Medicaid nursing homecare will be exacerbated with themove to HMO/managed careorganization control of elder care,”Phelan wrote.“FHCA thus believesit is necessary to first address theinadequacy of the existing rates (on which all FSC underlying

CONTINUED ON PAGE 15

Citizen Lobbyists: Members of the Florida Health CareActivity Coordinators Association and Florida Associationof Nurse Assistants are among the many long term care

advocates who visit Tallahassee to lobbytheir legislators during the 60-day session.

Some bringand sharephotos oftheir elderlycharges.


Nursing home quality up,funding still insufficientDon’t jeopardize quality improvements, Family Forum urges

Nearly three dozen Family Forum members visiting inTallahassee March 27th called on their legislators to keep

up the positive momentum in nursing home quality improve-ment by adequately funding Medicaid-paid nursing home care.They warned current funding levels are grossly insufficient andthreaten to erode the steady quality improvement gains madeover the past five years. Medicaid pays for the care of approxi-mately 45,000 Florida nursing home patients, but it under-reimburses skilled nursing facilities more than $18 perMedicaid patient per day under the current funding formula.

“Family Forum members have family members in nursinghomes and see firsthand the potential problems posed by inad-equate funding,” Family Forum Director Cynthia Pearse said.“They share with their legislators their intense desire to see thequality of life improvement maintained, not reversed.”

Nursing homes:We need adequatefunding!

Lawmakers considerbudget proposals

A t press time, FHCA membersand lobbyists were urging leg-

islators to approve Gov. Jeb Bush’s2006-07 budget request to fullyfund nursing home inflation-related(price level) increases and caseloadgrowth. Nursing homes are hopingthe final budget increases Medicaidnursing home rates by restoring the2005-06 funding reductions and byeliminating artificial and arbitraryrate “targets” that unfairly under-fund nursing home care and threatenquality improvement and access toskilled nursing care.

“Our costs have gone up — fuel,staffing costs, repair/renovationcosts — but our Medicaid reim-bursement has not kept pace,”FHCA President Dion Sena said.“Less than ten percent of Floridanursing homes now receive Medi-caid funding that covers the cost toprovide care.” Sena said nursinghomes must be financially viable inorder to continue meeting the needsof Florida’s elderly population.

Next month will mark five years since Gov. Jeb Bush and the legislature approved landmark eldercare reform legislation, SB 1202.The historic bill enhanced home- and community-based care,

required and paid for nursing home quality improvements and slightly modified the law under whichnursing homes are sued. I was leafing through some back issues of FHCA Pulse to help me betterremember our daily reality in those pre-SB 1202 days:■ One-fourth of the state’s 82,000 licensed nursing home beds were owned and/or operated by

companies in Chapter 11 bankruptcy proceedings. Nursing homes across the state were closingand sending their patients elsewhere.

■ National reports showed that despite providing quality care that was better than the national average, Florida nursing homes were multiple times more likely to be sued than others in the U.S.,and for larger amounts.

■ Nursing home lawsuit awards ($20 million in one case) were draining precious Medicaid fundsbetter spent on improving patient care.Trial lawyer-sponsored front groups smeared nursing homestaff as uncaring and nursing home companies as near-criminal.

■ National nursing home companies continued their exodus from Florida. Liability insurers also werefleeing the state. Nursing home liability insurance was hard to find, expensive and insufficient.

■ Nursing home staff turnover was too high. Many nursing home administrators, fed up with spending so much of their time defending lawsuits, were leaving the profession.

Success takes off They say there’s nothing more unstoppable than an idea whose time has come, but it took at

least three years of steady FHCA member lobbying to get SB 1202 passed in a meaningful form.Once it was, nursing home quality improvement began almost immediately:■ Thousands of additional CNAs and nurses were hired, trained and deployed in facilities by the

deadline. Risk management and quality improvement programs produced measurable results.■ The number of nursing home compliance violations began a steady decline that has continued

uninterrupted for five years. Serious compliance violations and reports of adverse incidents in facilities have fallen dramatically.The number of facilities on the state “Watch List” is a fraction of what it once was.

■ Federal Quality Measures found at www.medicare.gov show Florida’s quality of care is better thanthe national average and that its nursing home patients’ conditions improve during their stays.Unfortunately, one of the main goals of SB 1202 – returning adequate and affordable liability

insurance to nursing homes – has yet to be realized five years hence.With annual premiums contin-uing to exceed aggregate coverage, there is no real transfer of risk.

It’s emerged as an immutable fact that nursing home funding determines quality, and I hope lawmakers keep that you-get-what-you-pay-for lesson in mind as they consider Florida Senior Care,the Medicaid managed elder care programs set for Pensacola and Orlando.There can be no furtherquality improvement — indeed, it could move in the other direction — if funding is not adequate.

We did it!Celebrating SB 1202’s birthday means also celebrating the broad coalition of people and groups

who worked together to get this legislation through. It took the sustained commitment of ouradministrators, nurses, CNAs, social workers, activity coordinators, nurse managers, medical directors,dieticians, therapists, volunteers and many others to make it happen. These same individuals andgroups have continued to work together to achieve all the quality gains I mentioned.

Call to armsThe lesson I hope each of us keeps in mind is that we cannot allow others to determine our fate.

Each of us must be a strong voice on behalf of our patients and staff. And just as with nursing home quality improvement, our advocacy for our patients and long term care must be continuousand unending.

One voice. One mission.

Florida Health CareAssociationDion Sena,

President

Bill Phelan,Executive Director

David Sylvester,Senior Vice President

Deborah Franklin,Secretary

Nina Willingham, Treasurer

FHCA PulseAPRIL 2006

FHCA Pulse is produced monthly for theFlorida Health Care Association, P.O. Box1459, Tallahassee, FL 32302-1459, by EdTowey & Associates, Inc.

Editorial – To submit information, guestarticles, press releases, etc., contact EdTowey at (850) 224-6242 or via e-mail [email protected]. Fax information to (850) 224-9823 and include your name,telephone number and e-mail address. To contact FHCA, call (850) 224-3907.

Advertising – For information on Pulse ad-vertising rates and availabilities, contact IanCordes at Corecare Associates at (561) 659-5581 or via e-mail at [email protected].

All articles and advertising are subject toeditorial review.

FROM thePRESIDENT’S

DESK

by Dion SenaFHCA President

Happy 5th birthday, SB 1202Look how far we’ve come. Look what remains ahead

FHCA APRIL 2006 Pulse2


Recently Congress passed a provision thatmakes significant changes to the look-

back period for Medicaid eligibility. Thiscould have tremendous impact on nursinghomes and may change the way admissionsare determined.

I recently attended the annual meeting ofthe Long Term Care section of the AmericanHealth Lawyers Association. The AmericanHealth Care Association held a meeting ofattorneys who represent state nursing homeassociations.A topic of special interest was thelookback changes.Already elder law lawyers arerecognizing the effect this law will have on longterm care providers. Several articles have alreadybeen written addressing these concerns.

Hospital glut?Primarily, the issue is what you can do

when you determine a person will not qualify for Medicaid reimbursement becausehe or she has transferred assets improperly.The person obviously has no money to pay for care and you may have no place

to discharge or transfer him/her. Screeningincoming patients may be necessary. Denialof admission to persons who cannot defini-tively show the ability to secure paymentfrom some source may occur frequently.This could result in a glut of patients remain-ing in the hospital until Medicaid-qualified.

Under the laws prior to the change inlaw, the look-behind period was three yearsfor an ordinary asset transfer and five years ifthe transfer involved a trust. Under the newlaw the lookback period is five years for alltransfers. This does not mean that a personcannot appropriately spend his or her moneyon the outside chance he/she will need nurs-ing home care. What Congress was trying to avoid and what caseworkers will look for,is significant transfers, which make a person

who otherwise could pay for care dependenton governmental resources. For example, aperson who deeds the family homestead to a child may be ineligible. A grandparent who pays for a grandchild’s education maybe disqualified.

Penalty periodMore important than the extension of

the look-behind period is the calculation ofthe penalty period. Under the old law, thepenalty period decreased as time passed afterthe transfer. It began on the date of transferregardless of the person’s condition or wherehe/she resided. The new penalty periodbegins on the date the person is eligible formedical assistance under the state plan andwould otherwise be receiving institutionallevel care based on an approved applicationbut for the application of the penalty period.In other words, if the person would be eligible for institutional Medicaid on admis-sion because they have no significant assets,

LTC LEGAL ISSUES and TRENDS by Karen Goldsmith

Goldsmith, Grout& LewisFHCA Legal Consultant

Nursing homes maybecome very careful inaccepting new patients

The potential impact of the newMedicaid lookback law

CONTINUED ON PAGE 9

CMS revises its F 248interpretive guidelines

on activities

by LuMarie Polivka-WestFHCA QUALITY CREDENTIALINGFOUNDATION SENIORDIRECTOR

Activities receiving scrutiny

The revisions to the Activities’ FederalInterpretive Guidelines have been

finalized for an enforcement date of June 1,2006.The advance copy of F 248 is postedon the FHCA Web site and extends the tagfrom two to 38 pages.

In a recent meeting with Florida’s PioneerNetwork, Susan Acker of the Agency forHealth Care Administration noted that thenew activities’ guidelines will result in a cul-ture change in nursing homes with a focuson each person’s right to individualizedactivities. The CMS revisions are in responseto a CMS-contracted study in which 160people in 40 nursing homes were inter-viewed about their quality of life. Therespondents overwhelmingly identified asbeing important activities that “amount to something”; that use skills from patients’former work; religious activities; and activi-ties that contribute to the nursing home.

The report notes that people want a vari-ety of activities that are “not childish; use themind; amount to something, allow for get-ting out of the facility, allow for socializingwith other residents, with staff, and withpeople from outside of the facility and are

■ Visual impairments: Higher levels oflighting without glare; large print items; audiobooks; description of sizes, shapes, colors■ Hearing impairments: Small group

activities; use of amplifiers or headphones;written instructions; adapted TV■ Physical limitations: Hand dexterity

(e.g., adapted size of items, built-up paint-brushes, or large needles for crocheting), etc.■ Use of only one hand: Holders for mag-

azines, playing cards, etc.; items taped totable, etc.■ Language barrier: Translation tools,

translators, publications and/or audio/videomaterials in the patient’s language.

The interpretive guidelines include infor-mation on a facility’s accommodations thatmay be needed to ensure individualized act-ivities in accordance with the desire of thepatients, such as altering a therapy or a bath/shower schedule to make it possible for apatient to attend a desired activity.There arealso recommendations for interventions tohelp patients with pain and/or who are ter-minally ill and events and activities for personswith diverse ethnic or cultural backgrounds.

active activities, such as an exercise class.”The researchers also noted that non-inter-viewable patients appeared “happier and lessagitated” in nursing homes with plannedactivities for them.

AdaptationsThe revised guidelines emphasize the

individualized assessment and care planningrelated to activities for every person, even ifthe RAP is not triggered.The assessment isto be completed by or under the supervisionof a qualified professional which is definedin the F 249 tag. If a patient is independentin his or her activities without the facility’sintervention, this information is to be notedin the assessment and in their plan of care.The new F 248 interpretive guidelinesinclude an extensive, but not exhaustive listof possible adaptations for patient condi-tions/issues including for:

FHCA APRIL 2006 Pulse 5



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The FHCA Service Corporation is proudto welcome Entrées to Health as an

FHCA Service Corporation-approved ven-dor. Entrées to Health is a new sister compa-ny of Food With Care, itself a remarkable success story that demonstrates how a youngwoman’s simple desire to help one person hassince grown to become a blessing to so many.

The Food With Care story began inOrlando ten years ago when CarmenGlancy’s friend was ill and couldn’t findhome-delivered meals that were even close toacceptable.What was available was often ofpoor quality with little variety or taste.Carmen quickly saw the potential demandfor reasonably priced gourmet meals deliv-ered directly to the door. She brainstormedideas with her father, Jonathan Glancy —himself an accomplished sculptor — and soonthe company was born right in Carmen’skitchen. By 2006, Food With Care was serving 60,000 meals per month to Floridaresidents and was a thriving multi-milliondollar operation boasting a stunning 98 percent repeat business. Food With Care istoday the leading Medicaid-approved home

delivered, frozen mealsupplier in Florida.

Food With Care’smenu consists of 50entrées which areproduced in its spot-

less Orlando kitchen and distributed acrossFlorida. Its “Chicken a la Fran,” an old family recipe, is a longtime favorite withcustomers as are its tasty roast beef, bakedfish and stuffed pork chops offerings.

Special dietary needsThe Food With Care menu also caters to

those who suffer from obesity, heart disease,diabetes and others, with about a third of its menu items specially formulated withmaximum nutritional benefits to assist inaddressing these ailments. Response was sogreat that a sister company, Entrées toHealth, was formed to develop high qualityenhanced products and meals. Its newUSDA-approved facility, also located inOrlando, will produce “Chicken a la Fran”— it’s set to debut soon.That item is a uniquepatented, all-protein, heat-and-serve entrée

that consists of a thigh filet wrapped arounda lightly seasoned blend of turkey and chick-en, which is available in a variety of flavors,with or without breading. Future offeringswill include an all-protein handheld wrap,an enhanced finger food named “Pro-Jewel,”as well as complete meals. The company’sproducts will be actively marketed in healthcare facilities like nursing homes, or wher-ever people with special dietary needs desirea high-quality option.

Good nutritionGeorge Ateek is Entrées To Health’s

Vice President of Health Care Services andis a registered dietician with over 15 years ofservice to Florida nursing homes.Ateek hasconducted several pilot studies in nursinghomes of his products that have yielded positive results in aiding weight gain andwound healing. Greg Driscoll is Entrées ToHealth’s Vice President of Sales, and has over20 years experience providing service tolong term care facilities. He anticipates highdemand for Entrées to Health products

FHCA Service Corporation

CONTINUED ON PAGE 7


Don’t let what happenedin Hollywood happen

to you

A primer on ALF employee background screening

Florida Center for Assisted Livingby Lee Ann GriffinFHCA/FCAL POLICYSPECIALIST

The unthinkable occurred at an assistedliving facility in Hollywood a few

months ago.A janitor at the facility alleged-ly raped a disabled patient and was laterarrested. It was found the ALF had done just about everything right, later confirmedwhen the Agency for Health Care Admini-stration investigated and issued no citations.In fact, the ALF had gone well beyond the statutory requirements by conducting aFlorida Department of Law Enforcementcriminal history screening even though the man was not hired in a position thatrequired a background check. His recordcame back clear, even though he had recently been arrested and convicted of battery. Something, as yet unexplained,occurred between FDLE and the BrowardSheriff ’s Office resulting in the arrest notshowing up when the potential employerconducted its screening with FDLE.

Even with the apparent snafu, is there abetter example of how critically important it is for ALF administrators to conductappropriate criminal history screenings onpotential employees? One would expectdiligence, but according to data provided byAHCA, one of the most cited deficienciesfor ALFs is A509, which requires that allemployees hired after October 1, 1998, whoperform “personal services” (defined as“direct physical assistance with or supervi-sion of the activities of daily living and theself-administration of medication and othersimilar services which the department maydefine by rule”) undergo a Level 1 criminalhistory screening (see Chapter 400.4174,Florida Statutes). The Level 1 screeningreviews all criminal records on file withFDLE for offenses committed within thestate of Florida. A Level 2 criminal historyscreening searches FBI national files forcriminal histories.

Ways to do it rightThere are specific protocols for conduct-

ing these screenings. Download AHCAForm 3110-003, July 05, via the Internet orrequest it from the AHCA BackgroundScreening Unit at (850) 410-3400.The newhire must submit all required information tothe employer within five working days ofbeginning work.The employer then has fiveworking days from the time it receives allnecessary information from the new hire

employer must obtain from the previousemployer (not the new hire) a copy of thosescreening results.

DocumentationIt’s extremely important to maintain

written documentation of when the crimi-nal history screening was submitted toAHCA. Also make sure the results of thescreening are placed and maintained in the employee’s personnel file (Rule 59A-5.019(3)(b), FAC). You can be certainAHCA surveyors will be looking for thisverification.

Florida ALFs would do well to voluntar-ily examine their internal screening policiesand ensure they are weeding out knownpotential threats to their residents. While apreviously clean record is no guarantee thatsome people won’t do bad things in thefuture, it should at least give some peace of mind to families and residents that theirwell being is the ALF’s first concern. FHCAand FCAL offer active-status members afree, one-of-a-kind resource, the Back-ground Screening Resource Guide. Go towww.fhca.org and click on “Members Only,”then “Regulatory.”

to submit the screening request to AHCA(see Chapter 435.05, F.S.). All in all, theform must be completed and sent in toAHCA (with payment of $23) within tendays of the employee’s starting work (seeRule 58A-5.019, Florida AdministrativeCode). The results of this screening will usually be posted on the same day AHCAreceives a completed screening request.Go to www.fdhc.state.fl.us, click on “HealthFacilities & Providers,” then “BackgroundScreening,” then “Logon.” AHCA will postan interpretation of its findings in the form of “OK to Hire,”“Not Okay to Hire”or “Pending.” If the new hire has a disquali-fying offense, he/she may apply to AHCA’sBackground Screening Unit for an exemp-tion. However, this individual may not work in a position that provides personal services to ALFresidents until such exemption is successfullyobtained.

Another option is to go directly throughFDLE.Go to www.fdle.state.fl.us and click on“Criminal History Records.”The differencebetween this direct access and going throughAHCA is that with FDLE, the results of asuccessful screening are instantaneous, andthe employer must have the expertise tointerpret the results from an official Recordof Arrests and Prosecutions document.

Screening exceptionsThere are two scenarios in which a new

personal care services employee may not be required by law to have a new Level 1screening upon hire:

■ If the new hire holds a professionallicense and was required to pass a Level 1screening conducted as part of that licensureprocess, then the new hire does not have to be re-screened. Be sure to obtain a copyof the person’s current professional licenseand an Affidavit of Compliance, obtainableat AHCA’s Assisted Living Unit Web site.

■ If the new hire has already beenscreened within the past two years and hasbeen continuously employed in the sametype of job without a break in serviceexceeding 180 days, that person does nothave to be re-screened. However, the

because they are inexpensive, easy to prepare,high protein and much-needed.They com-pare very favorably with the liquid productsmany nursing homes currently use. Perhapsbest of all, the products are delicious!

One of the unique aspects of this up-and-coming company is its humanitarian vision.It will be an ongoing mission for Entrées to Health to work with federal and state legislative leaders and to partner with otherhealth care-related organizations in year-longpromotions to increase the public’s aware-ness regarding the need for proper nutrition.A portion of Entrées To Health’s revenuewill help fund various humanitarian effortsand worthy causes. It looks to be an excitingyear.

Further information about Entrées toHealth can be found at www.entreesto-health.com or by calling (407) 936-0340,ext. 12.

Entrées to Health offersa delicious alternativeCONTINUED FROM PAGE 6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The value of PREVACID SoluTab in the Long Term Care setting:

• The only PPI available as an orally disintegrating tablet1-8

• The lowest priced branded prescription PPI9

–Based on WAC (Wholesale Acquisition Cost) pricing per oral tablet/capsule published by First DataBank, Inc., August 2005. WAC is a published price list; actual cost to pharmacy or consumer may differ.

• Cost comparisons do not imply any information regarding efficacy or safety

• Bioequivalent to PREVACID (lansoprazole) capsules

• Versatile administration options

=

To learn about the value PREVACID SoluTab can bring to your Long Term Care organization, contact TAP Pharmaceuticals at 1-800-621-1020.

Safety and Other Information

• Adverse events reported most frequently with PREVACID were diarrhea (3.8%), abdominal pain (2.1%), and nausea (1.3%).

• Symptomatic response to therapy does not preclude the presence of gastric malignancy. PREVACID is contraindicated in patients withknown hypersensitivity to any component of the formulation. Pleasesee the brief summary of the complete prescribing information forPREVACID on the adjacent page.

• PREVACID is indicated for the short-term treatment of GERD (gastroesophageal reflux disease) including erosive esophagitis.

• PREVACID products should not be crushed or chewed.

Phenylketuronics: PREVACID SoluTab contains phenylalanine 2.5 mg per 15 mg tabletand 5.1 mg per 30 mg tablet. REFERENCES: 1. PREVACID Complete Prescribing Information. 2. PRILOSEC® (omeprazole) Complete PrescribingInformation. 3. ACIPHEX® (rabeprazole sodium) Complete Prescribing Information. 4. PROTONIX® (pantoprazole sodium) Complete Prescribing Information. 5. NEXIUM® (esomeprazole magnesium)Complete Prescribing Information. 6. PROTONIX® IV (pantoprazole sodium) Complete Prescribing Information. 7. ZEGERID® (omeprazole) Complete Prescribing Information. 8. NEXIUM® I.V. (esomeprazole sodium) CompletePrescribing Information. 9. Data on file, TAP Pharmaceutical Products Inc.

Prilosec®, Aciphex®, Protonix®, Nexium®, and Zegerid® are not trademarks of TAP Pharmaceutical Products Inc. © 2005 TAP Pharmaceutical Products Inc. 2005-030-06915 11/05 Printed in U.S.A.

PREVACID SoluTab andLong Term Care

CONTINUED ON PAGE 7

Hurricane Summit: Nursing home officials from Texas, Louisiana, Mississippi,Alabama, Georgia and Florida gatheredin Tallahassee in late February to discussmutual support strategies in preparationfor the 2006 hurricane season. Officialsfrom Florida’s Division of EmergencyManagement, CMS, the American HealthCare Association and others shared expe-riences and formulated when-and-how-to-evacuate policies. The two-day summitalso featured a tour of the state’s massiveEmergency Operations Center and wassponsored by the John A. HartfordFoundation, the American Health CareAssociation and AARP.


News fromacross FloridaNews fromacross FloridaNews fromacross Florida


but did transfer property, the penalty phasewould start running on the date of admissionwhether or not the person applied forMedicaid at that time. If the person has otherassets upon admission, the penalty phasewould begin when those assets are depletedto the point the person would be Medicaideligible.The person would have to be both ina facility and otherwise eligible for Medicaidreimbursement for that care before the penal-ty period begins.The penalty is the amount ofthe transfer divided by the monthly cost ofnursing home care.

Case studyLet’s use the example of a person who

gifted $50,000 to a relative in March of thisyear. Let’s say that person goes into a nursinghome in March 2008.At that time, the personwould otherwise be eligible for Medicaid,but for the penalty period.The person appliesfor Medicaid in March of 2009. The transferwill be discovered during look-behindbecause it occurred within five years of admis-sion to the nursing home (March 2008) aswell as application for Medicaid (March2009). However, there will be no penaltybecause the person has already “spent” theamount of the transfer. Let’s assume that thefacility charges $5,000 per month for privatepay patients. Five thousand dollars into$50,000 means that the person would be disqualified for ten months. Since, in fact,twelve months have passed and the patientpaid private pay, he/she has used up themoney that was transferred.

If the same person applied for Medicaidupon admission, within the look-behind peri-od, he would be disqualified for ten monthsand would have to pay from other resources(family contribution, for example) for tenmonths and would be Medicaid eligible inJanuary 2009.

If the person made the transfer five yearsbefore admission or application, there wouldbe no penalty because the look-behind period had already passed.

The new law only affects transfers madeafter February 8, 2006, the date it became law,and is not applied retroactively to transfers oradmissions before that date.

(Editor’s note: See LTC Business News, page10, for more on this topic.)

The potential impactof the new Medicaidlookback lawCONTINUED FROM PAGE 4


On February 8th, President Bush signed theDeficit Reduction Act of 2005, which

imposes significantly more restrictions on assettransfers in connection with Medicaid eligibility.The old law requires state case workers to total alltransfers made for less than fair market value(gifts) within 36 months prior to Medicaid appli-cation, and use the total to calculate the period of disqualification, starting from the date of thegifts. The DRA requires them to total all “postenactment” gifts made within 60 months prior toapplication and use the total to calculate the periodof disqualification from Medicaid commencingfrom the date of application. As you know, this is a huge change and will probably result in anumber of seniors being broke and also ineligiblefor Medicaid during a significant portion of theirnursing home stay. To add insult to injury, the oldrules allowed case workers to round the period of ineligibility downward by one month. It’s nowprohibited under DRA.

Grace period, partnership programsFortunately, the DRA gives states a grace

period to come into compliance if state legislationor rulemaking is required. The old rules shouldapply until Florida passes complying legislation(which has been proposed at this point), andissues new rules (if necessary).

The DRA also advocates the use of privatelong-term care insurance to pay for nursing homecare and rewards those who purchase coverage byallowing them to keep more of their assets whenthey do qualify for Medicaid, and pass them toheirs or charities after death. These “PartnershipPrograms” with the states haven’t received muchmedia attention so far, but here’s how they work:Suppose a widow purchased a $100,000 longterm care policy and later enters a nursing homewhere she uses the benefit over the next twoyears. She would be allowed to qualify forMedicaid to pay the cost of care in excess of hercurrent Social Security and pension income. Inaddition, upon her death her estate would beallowed to keep $100,000 in assets, rather than the$2,000 she is allowed to keep under current rules.So far the feds have allowed only four states tooffer these plans since the early 1990s, but manyother states have laws ready to allow these plansnow that Congress has approved them and otherstates are studying the issue.

Unfortunately, there are drawbacks. First, theplans are not portable, so if someone purchases aplan in another state then moves to Florida and isadmitted to a Florida nursing home, AHCAwould not currently allow the asset protection fortheir funds when their insurance coverage runsout. Second, plan premiums are also more expen-sive than many long term care plans since they arerequired to offer inflation protection.

Other DRA drawbacks■ Requires that a Medicaid applicant disclose to

the state any interest the applicant or communityspouse has in an annuity, regardless of whether theannuity is irrevocable or treated as an asset.

■ Allows states to require an issuer to notify thestate when income or principal is withdrawnfrom the annuity.

■ Caps the amount of home equity an individ-ual can have and still qualify for Medicaid at$500,000; though states are allowed to increasethis cap to a maximum of $750,000.Cap does notapply to Medicaid applicants with spouses ordependent children who are residing in thehome.Amount of cap will be indexed after 2010.

■ Provides for a hardship waiver of the periodof ineligibility in cases where it would deprive anindividual of medical care that would endangerhis or her health or life, or deprive the individualof food, clothing, and shelter.

■ Requires states to notify Medicaid applicantswho would be subject to a period of ineligibilityso that they may request a waiver, and requiresstates to provide for a timely process for deter-mining if an undue hardship exists.

■ Treats Continuing Care Retirement Com-munities’ entrance fees as countable resources forMedicaid eligibility purposes to the extent thatthe individual has the ability to use the entrancefee, or the contract states that the entrance feemust be used to provide for care should otherresources prove insufficient (other criteria alsoapply).Also allows CCRCs and life care commu-nities to require residents to spend resourcesdeclared on their entrance fee contracts for theircare before applying for Medicaid.

■ Requires documentary evidence of citizen-ship or nationality for Medicaid eligibility.

Unconstitutional?To complicate the issue further, the House ver-

sion of the DRA contained a typo which a clerkcorrected after the House vote but before it wassent to the Senate and later the President.This hasresulted in at least one lawsuit that has been filedto stop or delay implementation by challengingthe law’s constitutionality for that very reason.

IRF phase-in extendedUnder Medicare regulations, Inpatient Rehab-

ilitation Facilities are subject to the “75 PercentRule,” where they are required to demonstratethat at least 75 percent of their patients have oneor more of 13 specified conditions. In 2004, CMSsignificantly revised the conditions that qualify for75 Percent Rule compliance and has been phas-ing in its enforcement.

The DRA provides some relief for IRFs byextending the phase-in of the 75 Percent Rule byan additional year.The 60 percent threshold willremain in effect until June 30, 2007, after whichit will increase to 65 percent and finally 75 per-cent on July 1, 2008.

DRA: Headaches on the horizonLTCBUSINESS

NEWS

by Steven R. Jones, CPAand Lorne Simmons

Moore Stephens Lovelace

Changes in theMedicaid eligibilityrequirements couldsignificantly impactproviders andpatients alike


NST Sales & Customer Service Office5154 Enterprise Blvd.,Toledo,Ohio 43612(800) 678-7020 or go to www.nst-usa.com

Bed Safety Entrapment Kit

Update: FDA issues new safe-bed standards

by Max Hauth

The goal is to eliminatepatient entrapmentThe U.S. Food & Drug Administration

received 691 entrapment reports fromJanuary 1, 1985, to January 1, 2006. Duringthis 21-year reporting period, 413 peopledied, 120 were injured and 158 were near-miss events with no serious injury as a resultof interventions. These entrapment eventshave occurred in openings within the bedrails, between the mattresses and the bedrails, under bed rails, between split rails andbetween the bed rails and the head- or foot-boards. The population most vulnerable toentrapment (defined as an event in which apatient/resident is caught, trapped or entan-gled in the space in or about the bed rail,mattress or hospital bed frame) are elderlypatients and residents, especially those whoare frail, confused, restless or who haveuncontrolled body movement. Entrapmentshave occurred in a variety of patient caresettings, but long term care facilities report-ed the majority of the entrapments.

On March 10, 2006, the FDA’s HospitalBed Safety Workgroup, an organization ofprovider groups, patient advocacy groupsand medical bed and equipment manu-facturers, published final guidelines for the design and testing of hospital beds(www.fda.gov/cdrh/beds/). The guidance lists the body parts at risk for entrapment(head, neck, chest), identifies the location of the hospital bed openings that are potential entrapment areas, recommendsdimensional criteria for new hospital bedsystems, provides information about report-ing entrapment adverse events and includesa description of recommended test methodsfor assessing gaps in hospital bed systems.

Potential zones of entrapmentZone 1: Within the railZone 2: Under the rail, between the rail

supports or next to a single rail supportsZone 3: Between the rail and the mattressZone 4: Between the rail, at the end of

the railZone 5: Between split bed railsZone 6: Between the end of the rail and

the side edge of the head- or footboardZone 7: Between the head- or footboard

and the mattress end.

MeasurementsThe horizontal distance (gap) between

the mattress and the bed rail must be, accord-ing to the International Bed Safety Group,less than 60mm (2 3/8 inches) when the

mattress and side rail) on each side of themattress is limited to, and maintained at,less than 60mm (2 3/8 inches). Whenreplacement mattresses are purchased forexisting bed frames, they must be of sufficient length, width and thickness to meetor exceed requirements for new assemblies.

ExclusionsA number of hospital-type beds have

been excluded from the scope of the FDAguidelines, including air-fluidized therapybeds, bariatric (obesity) beds, pediatric bedsand infant cribs. The air-fluidized beds areexcluded because the nature of the therapydoes not allow the patient to exit the bedeasily. When this product is used, specialconsideration needs to be given to the therapeutic benefits outweighing the risk of entrapment.

(Max Hauth is President,Hauth Health CareConsultants, Lakeland, and a frequent contributorto FHCA Pulse on life safety issues. Contacthim at (863) 688-0863.)

mattress is pushed to the opposite side of the mattress deck.

If standard bed mattresses have beenreplaced with narrower mattresses or ifsmaller specialty mattresses are used on topof existing bed mattresses, an excessive gapmay be created between the mattresses andthe side rail. This distance was previously(and correctly) identified as five inches.The new 60mm (2 3/8 inches) dimensiontakes into account that the side of the mattress may deflect laterally, allowing aspace that could pose a risk of entrapment tothe head or chest.The gap between the bedrail and mattress must be less than 60mm (2 3/8 inches) when the mattress is pushedtoward the opposite side of the bed. Newlypurchased mattresses and beds must meetthis less-than-60mm requirement.

The openings within a side rail should beless than 120mm (4 fl inches).The previousmaximum size for the openings betweenbars within a side rail was specified at127mm (five inches). Since that time, theFDA’s Hospital Bed Safety Workgrouprevised this dimension to be consistent with the existing International Electrotech-nical Commission standard. Beds rails onequipment purchased after the publishedMarch, 2006, alert must meet this less-than-120mm (4 3/4 inches) requirement.

Existing equipmentGaps between the bed mattress and bed

side rail in beds occupied by high-riskpatients will be limited to those permittedfor new bed assemblies. In the interim, allbed assemblies that have gaps that do not conform to the requirements for newbeds will be filled or covered with suitable materials to reduce the risk of entrapment.Suitable materials include high-density, fireretardant foam wedges that do not obstructstaff ’s visibility of the patient. Velcro or anti-skid mats may be used to position themattress on the bed frame in lieu of foamwedges, provided the opening (between the

InterventionsYour patients who are unable to leave

their room or prefer to stay may need inter-ventions, such as touch and sensory activities;in-room visits by staff and/or other patientswith similar interests; access to arts/craftsmaterials, cards, games, reading materials;visits from spiritual counselors; etc. There is a lengthy section dealing with behaviorinterventions with a review of the behaviorRAP guidelines and an examination of why,when, where and with whom the behaviorsoccur. The guidelines address behavioralintervention concerns with suggested activ-ities for wandering, name-calling, uncon-trolled crying or anger, the patient who dis-rupts group activities or exhibits withdrawnbehaviors or has inappropriate behaviorstoward self or others, etc.

Use the CMS Investigative Protocol forActivities through your quality assurance/riskmanagement/quality improvement processto ensure regulatory compliance.The proto-col includes questions for interviewing the patients, the activity, nursing and socialservices staff and CNAs. It also has a processfor record reviews.

Activities receivingscrutinyCONTINUED FROM PAGE 5

LABORRELATIONS

COUNSEL

by Mike MillerKunkel, Miller & Hament

FHCA Labor RelationsConsultant

Was his dismissal a pretext?

Diabetic employee fired forfalsifying time sheet entitledto jury trial on ADA bias claim where evidence suggested falsification occurred in midst of diabetic reaction

Employers should proceed with caution in casesinvolving disabled workers, but a recent federalcourt result shows the dilemma for a companyfaced with how to respond to inappropriate con-duct that may be caused at least in part by anemployee’s disability. Plaintiff “JD,” a diabetic, wasassigned to work the night shift and admitted tohaving trouble controlling his blood sugar.Whilediscussions were ongoing about his possible trans-fer to another position, JD turned in a time sheetthat incorrectly stated that he worked two dayswhen he in fact had been off those days. Thetimesheet had been completed ahead of time andJD neglected to amend it to account for the daysmissed, allegedly due to having elevated bloodsugar and hurriedly leaving the worksite in themidst of a diabetic reaction on the day he had toturn in the timesheet. Even though JD explainedthe circumstances, the company terminated hisemployment anyway and JD sued under the ADA and state law. The court refused to grantsummary judgment for the company, finding thatdisputed issues of material fact existed onwhether JD was substantially limited in the major

life activity of eating (although his condition wasor could have been controlled better had heheeded his doctor’s instructions, the diabetes stillgreatly restricted him on what and when he couldeat) and whether the company’s explanation for thefiring was a pretext for discrimination based ondisability since the alleged falsification occurredduring a diabetic reaction and there was evidencethat the company did not normally fire employ-ees for this reason when it was a first offense.Thiswas enough, at least for this federal judge, to allowthe claim to go forward to a jury trial.

U.S. Supreme Court reversesEleventh Circuit, holds that useof term ‘boy’ can be racialepithet even without specificreference to race

The use of racial epithets in the workplace hasformed the basis of many discrimination claimsbut it may not always be easy to tell when an epithet is racial, as demonstrated by a recent U.S. Supreme Court ruling which vacated anopinion of the U.S. Court of Appeals for theEleventh Circuit (which covers Florida, Georgiaand Alabama).The case involved two black plain-tiffs who sued over not being promoted to management positions in the employer’s plant.Their evidence of race discrimination focused on



having been called “boy” by the plant man-ager. In agreeing with the trial court that theemployer was entitled to judgment as a mat-ter of law, the Eleventh Circuit held that“while the use of ‘boy’ when modified by aracial classification like ‘black’ or ‘white’ isevidence of discriminatory intent, the use of‘boy’ alone is not evidence of discriminationas a matter of law.” On appeal to the HighCourt, the plaintiffs pointed out that

addressing an adult black male as “boy” was“one of the most infamous racial epithetsthat continues from the era of Jim Crow.”The Supreme Court agreed and held thatthe epithet “boy” could be evidence of racialanimus, depending on various factors, includ-ing the context, speaker’s inflection and toneof voice, local custom and historical usage.Therefore, it remanded the case back to theEleventh Circuit for further proceedings.


Labor Relations Counsel CONTINUED FROM PAGE 12

New ESS set to debutby Koko OkanoFHCA POLICY AND RESEARCH COORDINATOR

Online system allows better sharing and

faster response

The Agency for Health Care Admini-stration is set to begin inviting providers

to its new and improved Web-basedEmergency Status System. Participation isvoluntary, free and a very positive develop-ment in improving nursing home and assisted living facility disaster preparedness.

ESS was developed by AHCA to trackdisaster-related information and emergencydata that can be used in an emergency toassist the providers AHCA regulates.An ear-lier form of ESS has been utilized during thepast two hurricane seasons, but until now theinformation data collection has been donemanually, with limited capacity for sharingwith other stakeholders. The thousands oftelephone calls exchanged between facilitiesand AHCA during past hurricane seasonswill be replaced by a Web-based system.

ImprovementsESS will allow AHCA to identify the

needs and respond to the providers moreefficiently and promptly, and it will allowtrade associations, including FHCA, to participate in the relief effort without dupli-cating communication with the facilities.

ESS data reporting activities revolvearound “events” such as a hurricane, but

you’ll be able to enter basic facility infor-mation online in advance, including youremergency contact persons and telephonenumbers, utility account information, andmost important, your generator information.

When an emergency-related eventoccurs, the ESS screen will show new windows opened for the provider to entermore specific information, such as evacua-

Sneak Preview: AHCA’s Molly McKinstryexplains ESS to FHCA members and othersduring February’s six-state regionalHurricane Summit.

tion status and destination, special patient characteristics, available beds and power/fuel status. The system allows AHCA and thetrade associations to generate the most up-to-date report on these topics that will assistin identifying and prioritizing relief tasks.

Back-up planWhat if a facility suffers a power and/or

Internet outage and is unable to enter therequired data? To address this, ESS will allowcompanies and regional offices to haveaccess to the provider accounts of their affil-iated facilities. Trade associations such asFHCA also will be given access to theprovider accounts.This back-up system willallow the company or association to com-municate with the facility through whatev-er means available and to enter the informa-tion in the ESS on behalf of the facility.

For long term care facilities, the good thathas come from the hurricanes of 2004 and2005 is steady improvement in emergencyresponse, pre- and post-hurricane. Westrongly recommend that all FHCA mem-bers join the ESS before the 2006 hurricaneseason begins in June.Watch weekly Focus onFlorida for information on ESS educationand training opportunities.

Gains steadyFamily Forum members pointed to sev-

eral semiannual Agency for Health CareAdministration reports that show nursinghome quality of care and quality of lifesteadily improving. Facility staff turnover isalso reduced, which has helped to provide abetter continuity of care in the facility andmore satisfied patients and family members.To their credit, legislators have consistentlyfunded direct care staffing (RNs,LPNs,CNAs)in nursing homes, but they have reduced,frozen or resisted increasing other Medicaidnursing home funding formula componentsthat are equal in importance to staffing.

“A nursing home is a business just likeany other in the state,” FHCA SeniorDirector of Operations & ReimbursementTony Marshall said. “At the end of the day,it has to at least be able to cover its costs orit’s not going to be around very long. Thecurrent formula is unsustainable because itimposes additional limits (class ‘targets’ and

‘ceilings’) in non-direct patient care areas suchas operating and indirect patient care costs.”

Marshall likened the current system to anaging vehicle in need of repair. “The carneeds new brakes and a transmission andengine overhaul, but they tell you themoney they give you can only be spent onnew tires. You need those too, but it’s notenough to keep things going.”

Reimbursement requestThe nursing homes’ legislative position

on Medicaid funding is straightforward:■ Fully fund inflation-related “price level”

increases

■ Increase Medicaid nursing home rates byrestoring 2005-06 funding reductions

■ Increase Medicaid nursing home rates byre-basing the operating and indirect patientcare components of the Medicaid rate

■ Eliminate artificial and arbitraryprovider-specific rate “targets”

■ Provide one-time non-recurring fundingfor hurricane hardening, generatorupgrades and other capital improvementsfor aging facilities“We’ve taken the Family Forum message to

our legislators,”FF Director Pearse said.“Nowit’s up to each of us to reinforce their messagewith our own.Good care costs good money.”

Nursing home quality up,funding still insufficientCONTINUED FROM PAGE 1


American Health Care Association and National Center for Assisted LivingAHCA/NCAL offer hundreds of long term care professional development resources. Categories include Care Practice,Compliance & Regulation, Staffing & Retention, Consumer Resources, Nurse Aid Training, Assisted Living and manymore. Go to www.ahca.org/store/index.html or call (800) 321-0343 Monday - Friday, 9 am - 6 pm to place an order.

Entrees to HealthEntrées to Health is Florida’s premiere USDA-approved manufacturer of enhanced protein-based products, gourmetentrées and complete meals. Our delicious product offerings are uniquely formulated to provide maximum nutritionalbenefits for patients suffering from diabetes, renal failure, obesity, heart disease and more. A sister company toFood With CareTM Inc., Entrées to Health is dedicated to providing the highest quality products with compassionand integrity. For additional product information please visit us at www.entreestohealth.com, or call us at (407)936-0340 ext.12.

Edge Information Management Inc.Since becoming an approved service corporation company for FHCA in 1993, Edge has helped over 250 FHCAmembers meet their background screening requirements and kept them informed of pertinent legislative issues.Edge offers a variety of background checks including: drug screening, fingerprints, criminal, sexual offender,license verifications and references. Call (800) 725-3343.

FMS Purchasing & ServicesFMS has a full line of products and services in its Group Purchasing Program. FMS services member needs by ensuringmaximum savings and service. Five area managers throughout the state assure members an immediate response. Our services include: audits, a toll-free number, cost analysis, service reports and the Manufacturers Value IncentiveProgram. Call (800) 456-2025.

Hamilton Insurance AgencyHamilton Insurance Agency has 25 years experience, with an emphasis on the healthcare industry, and is proud toprovide the best and most economical services available in the industry to its customers. Offering commercial,health, personal and a variety of specialty services like Risk Management consulting, COBRA and Workers’Compensation. Contact Erik Skolnik, VP Sales SE Region, (877) 260-9468 or [email protected].

Med-Pass, Inc. (Heaton Resources)MED-PASS is a nationally known company specializing in the research and development of documentationsolutions, policy and procedure manuals, regulatory guides and in-service training programs for the long-termcare professional. Our manuals and guides are comprehensive, easy-to-use and continuously updated. Our formsand resources offer peace of mind and quality and better than competitive prices. Call (800) 438-8884.

Office DepotOffice Depot offers Florida Health Care Association members extra discounts and services due to the cooperativepurchasing power of FHCA. We offer a wide variety of benefits, including 50 items which have been reduced basedon volume ordering up to 80 percent off the list prices (the “High Use Item List”); next-day delivery on any amountof products (no minimum order); an award-winning Web site which links you to your pricing and into the ware-house and keeps 18 months of tracking information at your fingertips. Call (800) 422-2654 for information or toset up an account; call (800) 386-0226 to place an order.

SCI CompaniesStaffing Concepts of Florida, Inc. is a professional employer organization which provides a comprehensive solution toyour personnel needs, including: employee benefits; workers compensation and safety programs; human resourcessupport; and payroll. SCI specializes in helping health care facilities better manage their single largest cost— labor.Call (800) 932-4610.

Senior CrimestoppersThe Senior Crimestoppers program is a proven, effective, proactive crime prevention system that combinesproven components to help provide safe, crime-free facilities for patients, staff, visitors and vendors. Personallock boxes for use by residents and/or family members, an around-the-clock, completely anonymous “tip line”call center, cash rewards of up to $1,000 posted on any and all incidents that occur and educational materialsfor residents, families, management and staff members are a few of the components that make up the program.More details can be found at www.seniorcrimestoppers.org or contact Donna Derryberry at (800) 529-9096.

FHCA SERVICE CORPORATION SAVES YOU MONEYWe are proud to recommend these fine vendors who provide

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FHCA Bulletin Board(Note all programs preceded by an asterisk (*) have registration brochures available via FHCA Fax-on-Demand at(850) 894-6299. Some meetings noted herein may also carry CE credits. Additional information can be found at www.fhca.org. Click on “Seminars/Events.”)


Continuing Education/Training

FHCA Seminar: “How to EnsureFinancial Solvency in NursingHomes”Monday, March 27Holiday Inn Select316 W. Tennessee Street, TallahasseeProgram begins at 10:00 a.m. and concludes at 5:30 p.m.

Meetings/Events

FHCA/FCAL 2006 LegislativeMeetingTuesday, March 28 and Wednesday, March 29Holiday Inn Select316 West Tennessee Street, Tallahassee

Lobby Wednesday Wednesday, April 19 FADONA, Pinellas County; FHCA Districts IV and V) Cabot Lodge 1653 Raymond Diehl Road, Tallahassee

FHCA Nurse Leadership Training ProgramWednesday, May 24 through Friday, May 26The Don CeSar Resort & Spa3400 Gulf Blvd., St. Pete Beach

FHCA/FCAL 2006 AnnualConference & Trade ShowWednesday, July 5 through Saturday, July 8Gaylord Palms Resort & Convention Center6000 W. Osceola Parkway, KissimmeeRoom rate $99, plus $10 daily resort fee Advertise in FHCA

Pulsecontact Ian Cordes at CorecareAssociates, exclusive sales agent

ph: (561) 659-5581fax: (561) 659-1291

e-mail: [email protected]

assumptions are based) or the FSC costmodels are flawed and the waiver has no chance of being successful.”

Phelan summarized other FHCAconcerns, including those related toquality assurance, retroactive reimburse-ment, multiple billing entities, timelinessof reimbursement, additional expensiveregulation, choice counseling, licenserequirements for minimum Medicaidoccupancy and fairness to providers inHMO-provider negotiations. Phelanurged Sec. Levine to “appoint workinggroups and/or technical advisory panelsthat include representatives from allstakeholder groups, including both pro-vider and HMO/MCO representatives.”

CONTINUED FROM PAGE 1

Update

CLASS I F I EDSAdministrators wanted: Senior Health Management, on behalf of its not-for-profit clients, is currently seekingqualified individuals to serve as administrators in the Tampa/St. Petersburg area. Qualified candidates must havea commitment to delivering quality care to meet the needs of patients and families; serving as a managementresource to empowered employees; contributing to the growth of the organization and achieving personalcareer advancement. Qualified candidates must possess a Florida NHA license; experience at a Medicare-certified SNF; proven patterns of success; and a strong knowledge of state and federal regulations with favorable survey outcomes. Please reply via fax to (727) 502-5353, or via e-mail to [email protected].

pulse april 2006 - florida health care association · move to hmo/managed care ... one-fourth of...

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