News & Updates

• Date & Time: Thursday, October 29th from 1:00pm – 2:00pm Duration: 60 minutes
• NHA & CPA Credits: This educational offering is approved for 1 hour of NHA credit (Approval Code: 20211028-1-A70854-DL) and is approved for 1 hour of CPA credit (PX177781).
• Cost: NONE
• Session Description: Over the past 9 months, a variety of COVID-19 relief funds have been offered to long-term care providers, including PPP funds, COVID-19 Hazard Pay Grants, and three rounds of CARES Act funding. During this webinar we will provide an overview of each funding stream and then explore the compliance measures and reporting requirements that providers need to be aware of.
• The first half of the webinar will provide an overview of each funding source and their compliance requirements.
• During the second half of the webinar we will look at the financial records and reporting requirements issued to date. Providers must be aware of these requirements in order to ensure that all eligible COVID expenses and lost revenues are properly documented to reduce and/ or eliminate any liability to the government agency for unused funding.
• Speakers:
  • Daniel K. Natirboff, Esquire, Chair of Licensure, Compliance, Regulatory Practice & Enforcement Group
  • Timothy T. Ziegler, Long-Term Care Reimbursement Analyst

Registration Required:
Please RSVP to Cassie Reed at cassier@capozziadler.com or 717-233-4101. Provide your name, company, and job title. If you need NHA credit, please provide your NAB ID #. Cassie will send you the webinar sign-in information via both email and a calendar invite, within a week of the webinar.

CLICK HERE to download a printable, PDF Flyer

Employers do not have to provide unions with notice and opportunity to bargain, prior to disciplining employees while negotiating a new CBA.

On June 23, 2020, the current three members of the National Labor Relations Board (NLRB) issued their decision in 800 River Road Operation Co., LLC, 369 NLRB No. 109, overruling Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016). 

The current Board determined that the prior decision, which overturned 80 years of prior NLRB precedent on the issue:
(1) conflicted with Board precedent and the rationale of the decision of the U.S. Supreme Court in NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) (establishing the right to union representation during disciplinary investigations), relevant to the issue;
(2) misconstrued the general unilateral-change doctrine announced by the U.S. Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962), with respect to what constitutes a material change in working conditions; and,
(3) imposed a complicated and burdensome bargaining scheme that is irreconcilable with the general body of law governing statutory bargaining practice.   

The prior decision required an employer to provide a union with notice and an opportunity to bargain before imposing discipline on any union-represented employee who was not yet covered by the terms of a collective bargaining agreement; and, for any violation, required reinstatement and backpay for the disciplined employee unless the employer could prove the discipline was imposed for “good cause” within the meaning of Section 10(c) of the National Labor Relations Act.  The Board decision will apply retroactively to all pending cases in whatever stage.
 
As a result of the decision in 800 River Road Operating Co., LLC, the effective rule, as previously discussed in Fresno Bee, 337 NLRB 1161 (2002), is that there is no predisciplinary bargaining obligation under the National Labor Relations Act.  Our Firm previously successfully argued for application of the Fresno Bee precedent and that any change to that rule had to be applied prospectively only, CPL (Linwood) LLC, 367 NLRB No. 14 (2018).
 
The new Board majorities’ major decisions that overturned prior Board decisions since 2017 include:

1. The Boeing Co., 365 NLRB No. 154 (2017)(employee handbook rules)
2. PCC Structurals, 365 NLRB No. 160 (2017) (composition of Bargaining Units)
3. Supershuttle Dfw, Inc.,  367 NLRB No. 75 (2019) (returning to common law principles for determining independent contractor status)
4. Ridgewood Health Care Center, Inc., 367 NLRB No. 110 (2019) (when successor is required to bargain to avoid “perfectly clear successor” status);
5. Johnson Controls, Inc., 368 NLRB No. 20 (2019) (providing for disputes with withdrawal of recognition of union to be resolved by post-withdrawal elections)
6. Kroger Ltd. Partnership 1 Mid-Atl., 368 NLRB No. 64 (2019)(more flexibility to permit charitable solicitations on employer premises)
7. MV Transportation, Inc., 368 NLRB No. 66 (2019) (adoption of “contract coverage” standards to determine employer authority to make unilateral changes to working conditions).

If you have any questions regarding this favorable pro-Employer decision or about any of the other pro-Employer decisions issued by the Trump-appointed NLRB, please contact Louis J. Capozzi, Jr. at our Firm (Email: LouC@CapozziAdler.com).

Capozzi Adler, P.C. is assisting LTC providers and small businesses with legal issues arising during the COVID-19 pandemic. To those of you in long-term care who are on the front lines caring for our country’s most vulnerable citizens:  we applaud you for your bravery and resilience during this difficult time. 

Congress is about to enact the largest economic relief effort in U.S. History, the Coronavirus Aid, Recovery, and Economic Security Act (CARES Act), with funds expected to flow quickly starting in April 2020.  State Governments are also putting in place relief programs for their citizens and businesses.  Relief will be available under these programs for businesses, self-employed individuals, employees, the unemployed, students and retirees, along with special programs and requirements for health care providers and other employers. 

Our Firm continues to provide legal services and counseling under the current public health precautions in place in Pennsylvania. We are available to assist businesses in:

• Navigating whether the new FMLA and Paid Sick Leave requirements effective April 2, 2020 apply to them, including the special provisions relating to employees who are health care providers or first responders.
• Applying for waivers of State limitations on operations.
• Responding to union and employee issues related to continued operations, health and safety, under current precautions and conditions.
• Applying for forgivable loan relief from the Small Business Administration to help sustain operations and employees, or employee retention credits under the pending $2 Trillion CARES Act, which also includes a delay in payment of employer payroll taxes.
• Coordinating and clarifying guidance regarding resident admissions policies during the COVID-19 pandemic.

We are able to work with our clients remotely and can arrange for on-site consultation as may be required.  If you need help with business issues to get through the current crisis, do not hesitate to reach out to us.

• For assistance with long-term care regulatory and operational issues, contact Bruce Baron at bruceb@capozziadler.com or 717-982-3055
• For employment/ labor issues, contact Lou Capozzi at louc@capozziadler.com or 717-979-7205, or Brandon Williams at brandonw@capozziadler.com or 717-439-0545
• For business and loan-related issues, contact Craig Adler at craiga@capozziadler.com or 717-503-9924
• For Medicaid reimbursement matters, contact Dan Natirboff at dann@capozziadler.com or 717-503-3083

Recent DHS COVID-19 Updates for Long-Term Care Providers:

• DHS Stakeholder Update- COVID-19- March 25, 2020
• DOH Information for Home Care Agencies, Home Health Care Agencies and Hospices During COVID-19
• Post Acute and Long Term Care COVID-19 Toolkit:
  • CDC Messaging for Nursing Home Infection Prevention and
    Control for COVID-19
  • EPA’s Registered Antimicrobial Products for Use Against
    Novel Coronavirus SARS-CoV-2
  • Healthcare Facility COVID-19 Exposure Tracking Log 
  • Ten Initial Steps for Long-Term Care Facilities with a confirmed case of COVID-19
  • Active Screening of Residents 
  • LTCF Preparedness Assessment for COVID-19: Abbreviated
  • Steps to Conduct Contact Tracing for a COVID-19-positive Case
  • Family Letter for when there is a Confirmed Case
  • COVID-19 Symptomatic Line List Template

Pennsylvania has been working to rebalance its Medicaid Program expenditures for long-term care and support services to get more recipients into lower cost home- and community-based programs instead of higher cost nursing home care, including through the current roll out of the new Community Health Choices Medicaid managed care program and expansion of LIFE Programs.  However, the State Budget has not allocated funds for the Department of Health to hire more staff for processing licenses for new home- and community-based providers. 

The result is longer processing time frames for license applications, beyond the 60-days prior notice required by Department regulations (28 Pa. Code Section 51.3), for new Home Care and Home Health Care providers seeking to meet the increasing demand for home- and community based services.  New companies seeking to provide these services will need to factor in the new licensing time frames.

For new Home Health licenses (28 Pa. Code Chapter 601), the Department of Health current  projected processing time frame is 6 months to a year (including the related Medicare certification).  There are currently 580 licensed home health agencies in Pennsylvania.

For new Home Care licenses (28 Pa. Code Chapter 611), the Department of Health current projected processing time frame is 5-6 months.  There are currently 2,264 licensed home care agencies or registries in Pennsylvania.

The Pennsylvania Department of Human Services has not reported any network shortages of licensed home- and community-based providers during the roll out of Community Health Choices in the Southwest (14 counties) and Southeast (5 counties) Regions.  Implementation of Community Health Choices in the 48 remaining counties (Phase 3) is scheduled for January 1, 2020; and, will test whether the current license delays are affecting network sufficiency there. 

A current and growing shortage of both Home Care Workers and Home Health Aides nationwide has been reported.  Forbes stated in their April 18, 2018 article “The Shortage of Home Care Workers: Worse Than You Think” that “Government statisticians rank home care as one of the nation’s fastest growing occupations, with an additional million workers needed by 2026; that’s an increase of 50% from 2014.”

Home Health Care News reported in their May 6, 2018 article “Where the Home Health Aide Shortage Will Hit Hardest by 2025” that “The number of new job openings for home health aides by 2025 is expected to reach 423,200, a growth rate of 32%….the expected workforce gap will also hit negative -446,300 workers by 2025….with all states needing more home health aides.”

                For more information about licensing for health care services facilities by the Pennsylvania Department of Health and the Pennsylvania Department of Human Services, you may contact Bruce G. Baron, Esq. at BruceB@CapozziAdler.com or 717-233-4101.

I want to focus this installment of our series known as “Take Control of your Accounts Receivable” on a critical player in your efforts to watch your bottom line: the resident’s “Resident Representative”, or, as some nursing facilities in Pennsylvania refer to this person, the “Responsible Party” or “Designated Representative”.  Our installments in this series share with you tips, legal updates, personal observations, and “lessons learned” to help you improve the effectiveness of your Accounts Receivable Management Program. 

Why do I want to devote this space to a discussion of the Resident Representative?  The weakest link in the admissions and account management process that negatively impacts a nursing facility’s bottom line is frequently the identification and preparation of a resident’s Resident Representative.

            The reasons for this weak link include one or more of the following:

1. The Admission Agreement lacks a clear definition, or any definition whatsoever, of a Resident Representative, or it lacks a description of the duties and responsibilities of the Resident Representative;  
2. The Admission Agreement properly explains that a Resident Representative will not be held personally liable for the debt, but, it fails to disclose that a Resident Representative can potentially be held financially liable in the amount that he or she fails to transfer from the resident’s income or assets despite having access to the resident’s resources;
3. The Admission Director identifies the resident on the first page of the Admission Agreement as the Resident Representative, although a member of the resident’s family or a friend signs the signature line on the last page of the Admission Agreement;
4. The signature line of the Admission Agreement for the Resident Representative does not identify the signatory as the resident’s Resident Representative;
5. The Admission Director fails to identify a Resident Representative or neglects to name the person on the first page of the Admissions Agreement; 
6. The Admission Director neglects to have the Resident Representative sign the last page of the Admission Agreement,  which is a legally enforceable contract;
7. The Admission Director fails to adequately explain to the Resident Representative his or her duties or responsibilities, including assistance in the MA application process.  Or, worse, the Admission Director directs the Resident Representative to not make any payments or escrow the resident’s income while Medicaid is pending;
8. The Admission Director fails to adequately explain to the Resident Representative that the Admission Agreement is a legally enforceable and binding contract; 
9. The Admission Director or Business Office fails to explain to the Resident Representative the benefits of arranging direct deposit of the resident’s Social Security income either as Representative Payee or through the Resident Fund Management System.  The same issue applies to the resident’s pension income;  
10. The Business Office fails to mail a monthly bill to the Resident Representative during the first several months after the facility admits the resident as a matter of policy while MA is pending; and,
11. Finally, the Business Office simply allows the Resident Representative to avoid payment or not cooperate for too long.  In other words, the Resident Representative is taking advantage of a disorganized Business Office or its passive attempts at collection.    

When the weak link breaks . . ..   I am certain that you have experienced one or more of the following situations as a result of the weaknesses above:  

1.  The family spends the resident’s money on non-allowable expenses although the relative or resident truly believes that these expenditures were justified;

2.  A relative intentionally or fraudulently diverts the resident’s funds for personal consumption or investments; 

3.  The Resident Representative fails to fully cooperate in the Medicaid application process, including the transfer of financial documents or information; or, 

4.  Although the CAO directs the Resident Representative to “spend down” the resident’s funds to qualify for Medicaid, he or she refuses, even if the amount is nominal.  As a result of this last scenario, you’re attempting to collect against a private pay resident with insignificant financial resources.            

What law allows you to contract with a resident’s family member or friend to act as the Resident Representative?  The term, “Resident Representative,” is generally accepted under the law.  The Nursing Home Reform Act of 1987 permits the nursing facility to contract with a person who has access to the resident’s income and resources to transfer payments from the resident’s income and resources.  42 U.S.C. §1396r(c)(5)(B)(ii). 

Furthermore, the Pennsylvania Administrative Code permits a resident to name a Resident Representative.  28 Pa. Code §201.24(a).   This section of the Code defines the Resident Representative as someone who can make decisions on behalf of the resident, but it does not obligate a Resident Representative to make payments.  In addition, this section prevents a nursing facility from naming an employee as a resident’s Resident Representative, unless a court appoints the employee as the resident’s guardian.       

Accordingly, an Admission Agreement must be clear as to the definition, duties, and responsibilities of a Resident Representative to be legally enforceable.  If the Admission Agreement is clear, the Resident Representative can be held legally liable for his or her failure to perform his duty to remit payment form the resident’s funds.  Of course, the Resident Representative may also be held liable personally if he diverts the resident’s funds for non-allowable purposes, which requires a court order.    

Is a Resident Representative a Guarantor?  No.  As most of you are aware, Medicaid law expressly restricts a nursing facility that is eligible for Medicaid or Medicare reimbursement from requiring a third party guarantee of payment to the facility as a condition of admission or continued stay.  A Guarantor is someone who is personally liable for a debt from his or her own assets.  An example of a Guarantor is the father who co-signs a car loan for his daughter.  The law does not prohibit a third person voluntarily guarantee payment to the nursing facility.  I continue to see, however, the term Guarantor in admission agreements, admission fact sheets, or account invoices even though the admission agreement does not clearly obligate a third party as a guarantor.     

Why do you need to take a look at the Resident Representative clauses of your Admission Agreement?  Although Pennsylvania court case law regarding the legal financial liability of a Resident Representative is scarce, the Allegheny County Court of Common Pleas recently addressed this issue in Five Star Quality Care, Inc d/b/a Overlook Green v. Joyce and Charles Yablonski.  The opinion of this Court will have a strong persuasive effect on other county courts throughout Pennsylvania.  In summary, the Court disallowed the nursing facility’s claim against a resident’s “Responsible Party” because the Admission Agreement did not “clearly and unambiguously” define the term “Responsible Party” or obligate the Responsible Party to guarantee payment.  In fact, the Court expressly preferred the term “Resident Representative”, rather than “Responsible Party”, because the usage of “Resident Representative” is more widely accepted and defined in state statutes.   

Because it is the nursing facility or its management company that drafts the Admission Agreement, the burden is on the nursing facility to ensure the requirements and obligations of a Resident Representative are “clear and unambiguous.”  Otherwise, the nursing facility’s attempts to collect a debt against a Resident Representative in a court may be weakened or unsuccessful. 

 If you would like more information on how your Admission Agreement can be used or modified to protect your facility’s bottom line, including an analysis and revision of the contract terms related to the Resident Representative, you may contact Andrew R. Eisemann, Esq. at our Firm at andrewe@capozziadler.com or 717-233-4101.

In 2016, CMS published its Overpayment Rule, 81 F.R. 7652 (2/12/2016), effective March 14, 2016, 42 CFR Part 401, Subpart D, to clarify when and how Medicare and Medicaid providers were to identify and return “overpayments” in order to avoid False Claims Act liability added by the Affordable Care Act (ACA).  The new Compliance and Ethics Program Condition of Participation for Nursing Facility Providers, 42 CFR § 483.85, with its effective date of November 28, 2019 coming soon, also implements a requirement added by the ACA. 

While efforts to pass laws that “repeal and replace” the ACA have not succeeded to date, there have been two recent court victories on this front.  First, in September 2018, the U.S. District Court for the District of Columbia, in a challenge to the Overpayment Rule under the Federal Administrative Procedures Act (APA), ruled that the entire Rule must be set aside.  UnitedHealthcare Ins. Co. v. Azar, 330 F.Supp.3d 173 (D.D.C. 2018), currently on appeal to the U.S. Court of Appeals for the D.C. Circuit (No. 18-5326). 

Second, in December 2018, the U.S. District Court for the Northern District of Texas ruled, in a challenge by several States to the entire ACA as amended by the Tax Cuts and Jobs Act of 2017, reducing the ACA’s shared responsibility payment to -0-, that the entire ACA, including the overpayment provision, must be stricken as unconstitutional.  Texas v. U.S., 340 F.Supp.3d 579 (N.D. Tex. 2018).  Since the District Court granted a stay of its decision pending review by the U.S. Court of Appeals for the Fifth Circuit, 352 F.Supp.3d 665 (N.D. Tex. 2018), appeal pending at No. 19-10011, the ACA remains “in effect.” 

Even if these two efforts are successful in further reducing providers’ False Claims Act liability, these lower court victories should not change provider compliance program behavior.  Longstanding OIG Compliance Guidance, issued before the enactment of the ACA, advised that providers must take decisive steps to correct identified noncompliance, including the return of any overpayments.  Both the OIG and the Pennsylvania Medicaid Program have established self-disclosure protocols for providers “to voluntarily come forward and disclose overpayments or improper payments.” 

Participation in these programs and continuing current compliance program efforts can reduce provider risks, including avoidance of compulsory Corporate Integrity Agreements, reduction in potential damages, and deferral of actual repayment pending settlement.  State and Federal audits for potential overpayments are also not letting up. 

If you have concerns about how to deal with possible overpayments identified through your compliance program or related to recent audit results, you may contact Bruce G. Baron, Esq. (bruceb@capozziadler.com) at our Firm. 

Bruce G. Baron, Esquire (bruceb@capozziadler.com)

 The USDHHS Office of Inspector General (OIG) is expected to issue its Work Plan Report (OEI-09-19-00350) next year (2021) on the results of its review of Medicaid Managed Care Organization (MCO) Plans’ denied services and payments that were overturned on appeal to help monitor for improper denials of access to covered services that benefit the MCO’s bottom lines. 

In September 2018, the OIG issued a critical report of Medicare Advantage MCO Plans (OEI-09-16-00410) that cited 45% of the Plans for providing incomplete or incorrect information to beneficiaries thereby inhibiting their exercise of appeal rights (only 1% of access to coverage decisions were appealed in the period reviewed), while 75% of denials that were appealed were overturned in the appeal process.  The 2018 Report recommended that CMS: (1) enhance its oversight of MCO contracts including those with extremely high overturn rates and/or low appeal rates and take corrective action as appropriate; (2) address persistent problems related to inappropriate denials and insufficient denial letters in Medicare Advantage; and, (3) provide beneficiaries with clear, easily accessible information about serious violations by MCOs.

Federal Managed Care regulations (42 CFR §§ 438.228(a), 438.400-438.424) require Medicaid Managed Plans to provide “timely and adequate notice of adverse benefit determinations” (42 CFR § 438.404), including the right: (a) to obtain reasonable access to and copies of all documents relevant to the determination at no cost to the beneficiary ; (b) to get information on the procedures required to perfect and to expedited, as needed, the appeal; and, (c) to get information on how to continue benefits pending the resolution of the appeal. 

The Medicaid Managed Care Plans must also provide information about the appeals process to all participating providers (42 CFR § 438.414); and, nursing homes must also provide residents with information regarding Medicaid coverage and related State and local advocacy organizations (42 CFR §§ 483.10(g)(4)(ii-iii)).  Nursing homes that are subject to the Conditions of Participation and any related State licensure regulations (e.g., 28 Pa. Code §   201.2, incorporating the 1998 version of resident rights rules) should update and monitor the application of their policies and procedures to assure residents’ rights related to Medicaid coverage under their Medicaid Managed Care Plans given the OIG’s concerns to prevent inappropriate denials of services and payments.

Bruce G. Baron, Esquire (bruceb@capozziadler.com)

The USDHHS Office of Inspector General (OIG) is expected to issue its Work Plan Report (OEI-01-18-00250) later this year (2020) on the extent to which LTC Ombudsmen address involuntary transfers and discharges and the extent to which State Survey Agencies (e.g., Pennsylvania Department of Health) investigated and took enforcement actions against nursing home for inappropriate involuntary transfers or discharges.  Under the 2016 updates to the Conditions of Participation regulations for transfers and discharges, 42 CFR § 483.15(c-e), the LTC Ombudsman must receive a copy of the required notice (42 CFR § 483.15(c)(3)(i)).   

In Pennsylvania, the LTC Ombudsman has filed appeals with State Medicaid Agency (the Bureau of Hearings and Appeals of the Pennsylvania Department of Human Services pursuant to 55 Pa. Code Chapter 1181 Appendix N) on behalf of nursing facility residents pursuant to the current Conditions of Participation, including obtaining an order to Stay the Transfer/Discharge or Readmit the Resident. 

Nursing homes that are subject to the Conditions of Participation and any related State licensure regulations (e.g., 28 Pa. Code §   201.2, incorporating the 1998 version of the transfer and discharge rules) should update and monitor the application of their transfer and discharge policies and procedures to assure compliance with the current requirements, including the timing, content, notice and safe/orderly requirements, as well as advance notice to residents of their rights under the regulations, given the increased oversight by the OIG, the LTC Ombudsman, and the State Survey Agency.

Brandon S. Williams, Esq. brandonw@capozziadler.com

In a recent decision, the Pennsylvania Supreme Court found the University of Pittsburgh Medical Center liable to employees for not taking reasonable care to protect employee data.  UPMC, which had gathered the personal data from employees as a condition of employment, was hacked and the personal information of 62,000 employees and former employees was compromised.  Although the hackers acted illegally in obtaining the information from UPMC computer systems, the Court ruled that UPMC should have anticipated the possibility of hackers attempting to access the information and should not have stored the information on its internet-accessible computer system which lacked adequate security measures, including proper encryption, adequate firewalls, and adequate authentication protocol.  The Court held that employers are expected to exercise “reasonable care” – including taking measures to prevent hacking – in securing employee data.

Employers are now on notice that they have a duty to ensure their systems are equipped with security measures to guard against data breaches and should do so by:

1. Reviewing and tightening internal policies and procedures related to data protection in the area of both data collection and storage.
2. Engaging information technology professionals to develop and regularly update effective ways to protect employee data.
3. Training employees regarding data security.
4. Maintaining documentation of data protection efforts.
5. Developing a protocol to be followed in case of a data breach.

Contact Brandon Williams, Esq. at BrandonW@CapozziAdler.com or 717-233-4101 for more information.

Andrew R. Eisemann, Esquire   andrewe@capozziadler.com

This is another installment of our series, “Take Control of your Resident Accounts Receivable”.  As you are already aware, the financial survival of most nursing facilities in Pennsylvania depend on how aggressively and effectively their business office managers administer their accounts receivable.  This series is devoted solely to the design, management, and improvement of your Accounts Receivable Management Program and your collections efforts.  Also, here we share with you tips, legal updates, personal observations, and “lessons learned” to help you improve the effectiveness of your Accounts Receivable Management Program. 

This installment summarizes the 12 most common mistakes that I have seen long-term nursing care facilities make that negatively impact their Accounts Receivable and their Days Revenue Outstanding (DRO) Reports. 

You provide an extremely valuable service, however, it is clear that most consumers do not plan for or want to pay for the nursing care and services that you provide.  As you have seen in your experience, and as I identified in the eighth installment of this series, residents and their families will frequently not place your rights as a creditor high on their financial priorities.  Each of the following observations likely apply to your facility in varying degrees:

1. You are not coordinating the efforts of your staff.  The best AR Management Programs always synchronize the efforts of the NHA with the Business Office staff, the Social Worker, Admissions Director/Coordinator, Director of Nursing, and central billing office, if any.  Each one of these staff members has a role in preventing problem resident accounts and financial liabilities.  In fact, the very best programs require the Business Office Manager to physically participate in a resident’s Care Conference when there are financial issues involved.  The NHA should address financial or payment issues with the Staff during Staff Meetings.  The key is to enforce open communication and control measures among the Staff. 
2. Your Facility’s Admissions Process is a wide-open gate.  Although your census isa top priority, the weakest link in your AR Management Program is probably your admission and screening process.  Review the screening process in your Admissions Office, including the screening of financial information and family members.  Are you screening applicants to determine whether the applicant was discharged from another facility?  Is your applicant a US citizen or is eligible for Medicaid with a Green Card?  Was your applicant discharged from a hospital and is eligible for Medicare after a qualifying stay?  Do you have a system in place to prevent the readmission of problem former residents?  Are you collecting and saving bank or other asset information?  Are your Admissions Director and BOM communicating with each other?  The worst offense by a weak Admission Office is the failure to properly complete and maintain a copy of the Admission Agreement.  Review your Admission Agreements for your admitted residents to ensure the Agreement is executed fully, including the names and signatures of the contracted parties.  Also, ensure you actually have an Admissions Agreement for each resident.    
3. Your Facility’s Admissions Agreement does not protect your rights as a Creditor.  You have rights under state law as a creditor.  Your facility is not only a provider of excellent nursing care.  It is also a Creditor.  Your Admissions Agreement is a contract.  It is not merely a Notice listing all the care and services that you will provide the Resident.  I frequently review Admissions Agreements that are poorly drafted as a contract and lacking provisions that protect you in the event of default, non-payment, or Bed-Hold situations.  There is no reason to use a weakly drafted Admission Agreement.      
4. Your Facility’s Admission Agreement fails to explain the duties and responsibilities of the Resident Representative.  A contract that fails to adequately define the responsibilities of the Resident Representative (some facilities make the mistake of using the title “Responsible Party” or other name) is not enforceable against a Resident Representative who fails to transfer the Resident’s income or complete a Medicaid application.  I frequently review Admission Agreements that require the signature of a Resident Representative, but do not include the required provisions to hold a Resident Representative financially liable by a court.  The key is to have a strongly worded Admission Agreement that is enforceable against a non-compliant Resident Representative. 
5. Your staff is not adequately preparing the Resident Representative or the Resident if the Resident is a self-admit.  Many facilities include the Business Office immediately and directly in the admission process specifically to ensure the Resident Representative or Resident understands the procedures and responsibilities related to Medicare benefits, Medicaid limitations, insurance co-pays, private charges, and income transfer.  Too frequently a Resident Representative will allege that he or she did not understand his or her expectations, including the payment of income while the Resident is MA Pending.  Finally, never advise the resident or Resident Representative that your facility will assume responsibility for the Medicaid application.  The resident, or his or her Resident Representative, is ultimately responsible.  
6.  Your staff is not adequately or regularly screening your Accounts Receivable Report.  The NHAs or EDs who review and maintain their AR Reports adequately and on a regular basishave a good understanding of their facility’s weaknesses with specific payer sources.  Question the balance of each payer source and watch deadlines for claims.
7. You are failing to aggressively “Stop the Bleeding” on a problem resident account.  Apply a tourniquet to an account that is increasing each month for reasons that can be controlled.  The Business Office must be aggressive and timely to initiate involuntary discharge procedures, take control of social security and pension income, report suspected financial exploitation to its Area Agency for Aging (AAA), schedule a Care Conference with the BOM present, file a “bare bone” Medicaid application, and initiate litigation.   Your Business or Billing Office must effectively follow up with residents, Resident Representatives, or families to collect outstanding Medicare co-pays, Patient Pay Liability, or Private Pay charges.  A weakly worded Demand Letter from the Administrator mailed more than twice to the debtor(s) is not an effective collections program.  The debtor is likely also receiving collection letters from other creditors or collection agencies.  This debtor will ignore your “requests for payment”.  A strong Demand Notice from a law firm to all appropriate members of family is always more effective in forcing compliance with the Admission Agreement.  A facility with an effective screening process or Business Office will have bank information available for a possible garnishment of a debtor’s account(s) or liquid assets.          
8. You are too passive with your Medicaid Pending accounts.  These accounts must be watched closely during your AR review.  Identify the source of the delay, including Options Assessment, County Assistance Office caseworker, lack of cooperation by family or resident, or ineffective Guardian, or Medicaid planner.  Involve your attorney to demand compliance or seek a Court Injunction Order against a resident, Power of Attorney, or Resident Representative.  As a last resort, initiate litigation for breach of contract.
9. Your Business Office is not billing while the Resident is Medicaid Pending.  Ensure the resident or Resident Representative is receiving monthly Invoices while the resident is MAP.  As a minimum, you should be receiving the Resident’s income, minus an agreed amount for a spousal allowance or home maintenance allowance.  A family that becomes “addicted” to a resident’s social security, pension, or annuity income.   Ensure the resident, spouse, Resident Representative, or POA receives a copy of the Notice to Medicaid Applicant (MA/PA Form 162) immediately if the payment of Patient Pay Liability is required.  Frequently, a spouse will ignore the payment of PPL if the CAO authorizes only a partial Spousal Allowance. 
10. Your staff is not appealing the denial of Medicaid benefits.  All Business Office Managers are aware that the deadline to submit an appeal is 30 days.  If you need time to gather additional financial documentation from the family, then submit the appeal on Day 29.  Do not allow the appeal period to lapse and lose your rights for automatic appeal.  Because the time period is short, immediately involve your attorney for assistance.  The DHS will allow a late appeal (“nunc pro tunc”) under the most unusual circumstances.  Ensure your Business Office or Medicaid biller is closely monitoring denials for an appeal or for a possible 180-day exception request later. 
11. You are not developing or enforcing a Policy for Social Security Representative Payee.  You will identify missing social security income when you review your AR Report.  Social Security benefits are a federal entitlement not subject to the personal discretion of an Agent under a Power of Attorney, Resident Representative, or Guardian.  These funds must be paid for the “current care and maintenance” of the Beneficiary.  Accordingly, you have several options if you are not receiving your resident’s social security income by check or direct deposit through RFMS.  Your resident can execute SSA Form 4164 at the regional Social Security office if it is safe to transport the resident there.  Or, apply for Representative Payee with SSA Form 787 (Physician Statement) and SSA Form 11 if your resident is not competent to handle his or her personal finances. 
12. You are not following up on delinquent accounts of Former or Deceased Residents.   The Business Office is usually overwhelmed with daily requirements and emergencies.  As a result, the delinquent accounts of former residents or deceased residents are frequently set aside and forgotten.  The account may still be MA Pending, which requires the submission of additional documents to obtain approval. Involve your attorney to demand payment from the former resident, Resident Representative, or family.  A discharged resident may have died and an Estate Claim is appropriate.  In Pennsylvania, the debt to a nursing facility for the last six months of the decedent is a high priority claim.         

These are your Dirty Dozen.  The above is a summary of the 12 most common mistakes or bad practices that I have witnessed while working with countless competent and professional NHAs and BOMs over the years.  I will address these common mistakes in more detail during our next semi-annual Seminar at Hollywood Casino on November 8, 2019.

If you would like more information on how we can provide further analysis and legal assistance to improve the management and liquidation of your Accounts Receivable, you may contact Andrew R. Eisemann at our Firm at andrewe@capozziadler.com or 717-233-4101.