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					                                                        DD Digest
                                                        Spring 20071


Hot Topics ........................................................................................................................ 1
CMS Survey Update….……………………………………………………………….. .3
Part D News……………………………………………………………………….. ……5
Flu Findings.……………………………………………………………………………. 6
Emergency Preparedness…………………………………………………………….. . 8
New Freedom Initiative/ Medicaid Restructuring…………………………………….9
Life Safety Code/OSHA………………………………………………………………. 16
Work Force……………………………………………………………………………. 20
Clinical…………………………………………………………………………………. 22
Data Developments……………………………………………………………………. 22



Hot Topics
Dynamic DD Track and Discounts at AHCA’s 2007 Annual Meeting
The American Health Care Association (AHCA) has designed an amazing educational track
specifically for developmental disabilities (DD) residential services providers, at its 2007 Annual
meeting in Boston, MA. Sessions and their continuing education units include:

          Sensory and Visual Strategies for Adults with Multiple Disabilities (2 CEU’s)

          Paperless Documentation and Communication for ICFs/MR (2 CEU’s)

          Ensuring Successful Food Service in DD Residential Facilities (2 CEU’s)

          New Innovations: Enhancing the Lives of Individuals with DD (2 CEU’s)

          Pre-Survey Evaluation and Culture Change in DD Settings (2 CEU’s)

In addition, DD residential services professionals will gain valuable insight at the DD Town Hall
meeting by:

          Reviewing the political and regulatory landscape on the federal and state levels;


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    May 2007, Copyright American Health Care Association, National Center for Assisted Living
       Exchanging ideas and best practices about operational challenges;

       Identifying areas in which AHCA can better assist DD residential services providers; and

       Building relationships with other DD residential services professionals.

AHCA invites DD providers to join us at convention earlier than in previous years, on Sunday,
October 7 at 2 pm, for the sensory and visual strategies session mentioned above. This session
will take place immediately before the DD Town Hall meeting, so it’s a great way to learn about
this important topic and start getting to know NEW friends and colleagues.

For more information about DD track sessions and specifics about convention fee discounts for
DD providers, contact Melissa Temkin at mtemkin@ahca.org.

Nominate your DD Hero of the Year
The nomination form for AHCA’s DD Hero of the Year award is available on AHCA’s members
only web site at http://www.ahca.org/members/quality/voty/2007MRDDHOYApplication.pdf.

The award will be presented at AHCA’s 2007 Annual meeting to a volunteer, family member or
member of the larger surrounding community who has touched the lives of individuals with DD
who reside at an AHCA member facility. A DD facility staff person who volunteers additional
time is also eligible for the award. All entries must be received by AHCA by Friday, June 8,
2007. The 2006 DD Hero of the Year Award was given to Cleeta Coffman, Administrator of
Country Lane in Beggs, Oklahoma.

DD Committee Focuses on Legislation During In-Person Meeting
AHCA’s DD Residential Services Committee met in Washington, D.C. on May 8 to discuss
legislative issues affecting DD services providers, including intermediate care facilities for
individuals with mental retardation (ICFs/MR) and Medicaid waiver group homes for DD.
Committee members also participated in AHCA’s Congressional briefing and Hill visits to further
advocate on behalf of DD providers and the clients that they serve. Some of the issues the
Committee focused on included:

Provider taxes

The Committee stressed the importance of allowing home- and community- based services
(HCBS) providers, in addition to ICFs/MR and other health care providers, to participate in the
provider tax program in order to receive subsequent federal financial participation (FFP) funds to
put towards client care. This allowance is threatened in the March 23, 2007 Centers for Medicare
and Medicaid Services (CMS) provider tax proposed rule, which can be found at
http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-
1331.pdf. AHCA’s Vice President of Reimbursement and Research Elise Smith spoke with the
Committee about these concerns, and she will include these and other points in AHCA’s
comments to CMS. For more information on provider tax, go to AHCA’s members only web site
at http://www.ahca.org/brief/provider_tax.htm or contact Elise Smith at esmith@ahca.org.

New Legislation Affecting DD Providers and Individuals with DD

The Lifespan Respite Care Act of 2006: This bill was signed into law on December 31, 2006 and
authorizes $289 million in grants over five years for states to develop respite programs to help
families access quality, affordable respite care. The bill can be viewed at
http://thomas.loc.gov/cgi-bin/query/D?c109:1:./temp/~c109Kz1XcM.

Proposed Legislation Affecting DD Providers and Individuals with DD

1.   Promoting Wellness for Individuals with Disabilities Act of 2007, S. 1050

This legislation was introduced on March 29, 2007 and proposes amending the Rehabilitation Act
of 1973 and the Public Health Service Act to set standards for medical diagnostic equipment and
to establish a program for promoting good health, disease prevention, and wellness and for the
prevention of secondary conditions for individuals with disabilities.

2. The Developmental Disabilities Assistance and Bill of Rights Act, S. 1809

This legislation is up for reauthorization for the first time in seven years. The original legislation
covered a variety of issues related to DD services, such as federal assistance to State Councils on
DD, Protection and Advocacy groups, and direct support workers for individuals with DD. The
focus of the new legislation is unknown at this time.

3. The Community Choice Act of 2007 (formerly known as MiCASSA), S. 799

This legislation was introduced on March 7, 2007 and focuses on eliminating Medicaid’s
institutional bias, keeping Medicaid funds in the community, and providing individuals with
community based attendant services to attempt to maintain their independence.

4. The Direct Support Professionals Fairness and Security Act of 2007, H.R. 1279

This legislation was introduced on March 1, 2007 and proposes to amend title XIX of the Social
Security Act to provide funds to States so they can increase wages paid to direct support
providers (DSPs) of individuals with disabilities.

To view any of the above pieces of legislation, go to www.thomas.gov.

For more information on a particular piece of legislation, contact MaryAnne Sapio at
msapio@ahca.org.

AHCA and DD Nurses Association Discuss Collaborative Opportunities
AHCA met with Board members of the Developmental Disabilities Nurses Association (DDNA)
at its annual meeting in Albuquerque, NM in early May, 2007. DDNA Board members stressed
the importance of DD certified nurses in ICFs/MR and group homes to conduct accurate clinical
assessments of clients and to ensure appropriate medication management, especially for dually
diagnosed individuals. DDNA is a supporter of AHCA’s and National Center for Assisted Living
Part D co-payment equity bill. Some DDNA Board members will attend AHCA’s annual meeting
in October. For more information on DDNA, go to www.ddna.org.



CMS Survey Update
CMS Training Focuses on Survey Process, Deficient Practices, Investigations
On March 20-22, 2007, CMS conducted ICF/MR surveyor training in Nashville, TN. Training
focused on appropriate execution of survey tasks and identifying deficient practices through
investigation. The training was attended by surveyors from throughout the country. A
representative from AHCA also was in attendance and provided the following highlights of the
training:

Task Two: Incident Report Review

       Surveyors should review a facility’s incident/accident reports for at least the last three to
        six months. The facility’s incident report summary may be acceptable for evaluation, but
        if surveyors see trends in incidents and accidents they have the right to see all applicable
        records.

       All incidents of unknown origin must be investigated regardless of whether or not the
        client(s) involved is part of the sample group.

       Unlike nursing facility surveyors, ICF/MR surveyors can review the facility quality
        assurance (Q/A) documents; these may contain information relating to incidents and
        accidents.

       Unexplained injuries will occur, but the facility should try to decrease the probability of
        unexplained injuries by having appropriate policies and procedures in place.

       When evaluating an incident to determine if abuse or neglect occurred, surveyors should
        consider the following:

        a. Was appropriate employee screening done before hiring?

        b. Did staff report allegations of client abuse to the appropriate supervisor in a timely
        manner?

        c. Was the allegedly harmed client protected from accused staff during the investigation?

Identifying Deficient Practices

During this part of training, CMS instructed surveyors to “go out on a limb” and really look at the
individuals in the ICF/MR. For example, are staff/client interactions promoting dignity and
independence for clients? Is the client seen as an individual who is worthy of respect? Specific
questions that surveyors might ask staff include:

       Is it appropriate to have someone come to the facility to do haircuts versus taking clients
        to the salon, the latter of which is the more typical method to get a haircut? Could there
        be a deficient practice “lurking”? Is it acceptable for clients to wear baggy clothes (e.g.
        sweat suits) everyday? Would the average person dress that way?

       If surveyors see locks on kitchen doors, etc. they should ask:

        a. How were clients assessed to determine that locks were needed?

        b. What other interventions were tried before locking the doors? For example, what skills
        were taught or are being taught to prevent clients from hurting themselves so doors would
        not have to be locked?

        c. Were the clients involved in the decision to lock doors?

        d. Are there signed consent forms from clients/guardians for these restrictions?
       To assess for client training in managing their finances, examples of appropriate program
        goals include: the client recognizing sound of money in his/her pocket, being able to put
        coins in a vending machine, etc.

       CMS is developing a variety of “loops” tools for surveyors that show related tags in a
        focus area. The active treatment loop document and directions discussed at the training
        are available at
        http://www.ahca.org/members/operate/special/CMS_ICF_MR_Surveyor_TM.htm.

       CMS wants to see care plans that limit restraints; restraints may include using a sedative
        during dental care, etc. Surveyors need to check for written consents by the client and/or
        guardian if a restrictive technique is implemented.

       If client abuse is apparent, cite W127 as well as immediate jeopardy (IJ). Surveyors can
        use the form “Immediate Jeopardy Decision Making Tool, Components of IJ” during this
        process. The form is available at
        http://www.ahca.org/members/operate/special/CMS_ICF_MR_Surveyor_TM.htm.

Hot Topics

       Pandemic Influenza: Surveyors should look at facilities’ plans to deal with potential
        pandemic influenza. ICFs/MR should contact their local emergency planning department
        to make sure that the facility’s location is known.

       Complaint Surveys: CMS is considering developing instructions on the complaint survey
        process. Apparently, poor investigation of complaints has occurred on the surveyor’s
        part.

       Court Ordered Clients: Concerns have been raised about the higher cost of caring for
        clients whose admissions are court ordered, as well as that some surveyors have been
        injured or intimidated by these clients. The same survey process applies to these clients
        as to those admitted under more typical circumstances.

For more in-depth information on the surveyor training, go to AHCA’s members only web site at
http://www.ahca.org/members/operate/special/CMS307surveyortraining42607WUO.pdf.



Part D News
AHCA/NCAL Calls for Elimination of Medicare Part D Co-Pays for Dual Eligible
Group Home and Assisted Living Residents at Congressional Hearings
The National Center for Assisted Living along with AHCA (AHCA/NCAL) submitted statements
to several congressional committees that held hearings in May on the Medicare Part D drug
benefit.

The Senate Finance Committee held two hearings—May 2 and May 8—that explored the
problems and oversight of the Medicare prescription drug benefit. AHCA/NCAL submitted a
statement that asked for the Medicare Part D program to be modified so that drug co-pays are
waived for dual eligibles in assisted living facilities and other home-and community-based
settings, such as group homes for DD.
In statements submitted to the Senate Finance Committee, AHCA/NCAL applauded Sen. Gordon
Smith (R-OR) and several co-sponsors for introducing The Home and Community-Based Services
Copayment Equity Act of 2007 (S.1107), which would eliminate Medicare Part D co-payments
for dual eligible assisted living residents and others under home and community-based programs.
Since S. 1107’s introduction in April, Sen. Sherrod Brown (D-Ohio) joined the list of cosponsors.
Other cosponsors of the bill include Sens. Jeff Bingaman (D-NM), Barbara Boxer (D-CA),
Hillary Clinton (D-NY), Susan Collins (R-Maine), Blanche Lincoln (D-AR), Bill Nelson (D-
Fla.), and Sen. John Kerry (D-MA).

NCAL also urged members of the House of Representatives to introduce companion legislation to
S. 1107. During a May 3 hearing on Medicare programs for low-income individuals held by the
House Ways and Means Subcommittee on Health, Rep. Jim Ramstad (R-Minn.) asked a senior
Centers for Medicare & Medicaid Services official why these co-payments were not being
covered for dual eligibles residing in assisted living facilities while dual eligibles in nursing
facilities pay no co-payments under Part D.

Ramstad also questioned whether this disparity makes sense as a matter of public policy because
it creates an incentive for low-income beneficiaries to live in nursing homes instead of
community settings, which can be less costly. He noted that many states are facing tight budgets.

To view NCAL’s submitted statement visit:
http://www.ncal.org/news/statements/med_pres_drug_050807.pdf. In addition, for information
on AHCA member Gail Clarkson’s May 15 testimony before the House Energy and Commerce
Health Subcommittee regarding Part D equity, go to the May 16 edition of Capitol Connection at
http://newsmanager.commpartners.com/ahcamemo/issues/2007-05-17.html#1.



Flu Findings
IDSA Recommends Mandatory Flu Shots for Health Care Staff
The Infectious Disease Society of America (IDSA) recently recommended that all health care
workers with patient contact receive mandatory annual influenza (flu) vaccinations unless they
decline in writing. The society also called for priority vaccinations of health care employees in
the event of a flu pandemic. The recommendations are enumerated in IDSA’s “Pandemic and
Seasonal Influenza Principles for U.S. Action” and are directed towards Congress and the
Administration. Some specific recommendations include:

       Increase research, development and stockpiling of antibiotics and antivirals;

       Improve the financial, legal, and regulatory environment for developing anti-flu products;

       Update plans for distributing and prioritizing anti-flu supplies;

       Build health care systems capable of responding to mass casualty events; and

       Commit funding for the long term.

IDSA's recommendations can be viewed in their entirety at
http://www.idsociety.org/Content/NavigationMenu/News_Room1/Pandemic_and_Seasonal_Influ
enza/IDSA_flufinalAPPROVED1.24.07.pdf.
CDC Guidance on Facemasks and Respirators in an Influenza Pandemic
On May 3, 2007 the Centers for Disease Control and Prevention (CDC) released interim guidance
to the public about the use of facemasks and respirators in certain public (non-occupational)
settings during an influenza pandemic. Previously, in October 2006, the CDC issued interim
guidance to plan for the use of surgical masks and respirators in health care settings during an
influenza pandemic. Much of the guidance to the public is based on the earlier guidance for
health care facilities.

The guidance for health care settings emphasizes that surgical mask and respirator use are
components of a system of infection control practices and reflects the idea that additional
precautions are advisable during a pandemic. The guidance does not change the prioritization of
respirator use during a pandemic: N-95 (or higher) respirators should be worn during medical
activities that have a high likelihood of generating infectious respirator aerosols, and are prudent
during other direct patient care activities for support staff who may have direct contact with
pandemic influenza patients. If respirators are not available, surgical masks provide benefit
against large-droplet exposure and should be worn for all health care activities involving patients
with confirmed or suspected pandemic influenza. Interim Guidance on Planning for the Use of
Surgical Masks and Respirators in Health Care Settings During an Influenza Pandemic augments
and supersedes recommendations provided in Part 2 of the HHS Pandemic Influenza Plan. The
guidance is available on the CDC web site at
http://pandemicflu.gov/plan/healthcare/maskguidancehc.html.

OSHA Guidance on Preparing for an Influenza Pandemic
On February 6, 2007, the Occupational Safety and Health Administration (OSHA) released
Guidance on Preparing Workplaces for an Influenza Pandemic. The document, which was
developed in coordination with the Department of Health and Human Services (HHS), provides
general guidance for all types of workplaces, describes the differences between seasonal, avian
and pandemic influenza, and presents information on the nature of a potential pandemic, how the
virus is likely to spread and how exposure is likely to occur. The guidance is advisory and
informational. It does not alter compliance responsibilities.

To help employers determine appropriate workplace practices and precautions, the guidance
divides workplaces and work operations into four risk zones, according to the likelihood of
employees' occupational exposure to pandemic influenza as follows:

       Very high exposure risk—occupations with high potential exposure to high
        concentrations of known or suspected sources of pandemic influenza during specific
        medical or laboratory procedures, for example, health care employees performing
        aerosol-generating procedures on known or suspected pandemic patients;

       High exposure risk—occupations with high potential for exposure to known or suspected
        sources of pandemic influenza virus, for example, health care support staff exposed to
        known or suspected pandemic patients;

       Medium exposure risk—occupations that require frequent, close contact (within 6 feet)
        exposures to known or suspected sources of pandemic influenza virus such as coworkers
        and the general public;
       Lower exposure risk (caution)—occupations that do not require contact with people
        known to be infected with the pandemic virus, or frequent close contact (within 6 feet)
        with the public.

Recommendations for employee protection are presented for each of the four levels of anticipated
risk and include engineering controls, work practices and use of personal protective equipment
such as respirators and surgical masks. The guidance explains differences between surgical masks
and respirators and describes different types of respirators.

The OSHA/HHS guidance also provides helpful information to develop a disaster plan and deal
with a depleted workforce during a pandemic, noting that a pandemic could affect as many as
40% of the workforce during periods of peak influenza illness. In addition, the guidance includes
steps employers can take to reduce the risk of exposure to pandemic influenza in their workplace,
links to web sites with additional information and a list of technical articles and resources,
including a history on flu pandemics, symptoms and outcomes of various strains of the influenza,
and details on the transmission of the virus.


The HHS/OSHA guidance is available on OSHA’s web site at
http://www.osha.gov/Publications/influenza_pandemic.html.



Emergency Preparedness
NFPA issues Emergency Evacuation Planning Guide for People with Disabilities
The Emergency Evacuation Planning Guide for People with Disabilities is available for
download at no cost from the National Fire Protection Association’s (NFPA) web site. Five
general categories of disabilities covered in the guide include mobility impairments, visual
impairments, hearing impairments, speech impairments, and cognitive impairments. Four
elements of evacuation information needed by occupants are: notification, way finding, use of
way, and assistance. Essentially, in the event of an emergency, a person would need to be notified
of the emergency; identify an exit; assess if they can get out on their own, with the help of a
device, or with assistance; and identify and express if assistance is needed and what that would
involve. To view the guide, go to www.nfpa.org/evacuationguide.

Important Survey on Emergency Evacuation Transportation Needs
Hurricanes Katrina and Rita revealed that better transportation planning is needed to manage
emergency evacuation on all fronts across our nation. AHCA, the Florida Health Care
Association (FHCA), The John A. Hartford Foundation, and key representatives from the
passenger motor carrier industry have joined forces to assess these needs. Together, they have
crafted a survey for long term care facilities to complete and a second survey for passenger motor
carriers (busses) to complete.

The responses to these two surveys will provide critical insights necessary to help improve
emergency evacuation planning. All answers will be grouped and reported as aggregate data in a
future issue of Provider magazine. Individual answers will remain confidential. The survey for
long term care facilities takes no more than 15 minutes to complete and is available on AHCA’s
web site at http://www.ahca.org/.
New Freedom Initiative/Medicaid Restructuring
CMS Announces Availability of Nearly $52 Million in Medicaid Transformation
Grant Funds
On April 30, the Centers for Medicare & Medicaid Services (CMS) announced the availability of
a second round of grants to fund research and design of ways to transform state Medicaid systems
and to increase quality and efficiency of care. States will receive nearly $52 million over 2007
and 2008.

Funds for the Medicaid “transformation grants” were authorized by section 6081 of the Deficit
Reduction Act of 2005 (DRA) and are aimed at state adoption of innovative systems to get more
value out of the money they spend providing health care to their citizens who are low-income
elderly, children, and people with disabilities.

The DRA provided $150 million in grants, and CMS already has awarded 32 Medicaid
transformation grants to 26 states totaling over $98 million. The remaining $51,940,306 will be
awarded through this second solicitation announcement.

No state matching funds are required for these special grants. States that already have received
transformation grants may apply. States must submit applications by June 15, 2007.

For more information and the grant application, go to CMS’ web site at
http://www.cms.hhs.gov/MedicaidTransGrants/.

AHCA Files Comments on CMS IGT Proposed Rule
As reported in the January issue of Regulatory Update (see
http://www.ahca.org/members/who/newslets/regupdate/regupdate070125.pdf on AHCA’s
members only site), on January 18, 2007, CMS issued a proposed rule severely restricting the use
of intergovernmental transfers (IGTs) as a finance mechanism for Medicaid. Medicaid Program;
Cost Limit for Providers Operated by Units of Government and Provisions to Ensure the Integrity
of Federal-State Financial Partnership, CMS-2258-P, 72 Fed. Reg. 2236 (January 18, 2007). The
proposed rule restricts the way states are permitted to generate funding for their share of
Medicaid costs. CMS is targeting certain current practices that use IGTs and certified public
expenditures (CPEs) in a manner that, according to CMS, draws down more federal matching
dollars than warranted.

In March, AHCA filed comments asking for withdrawal of the proposed rule. The comments are
available on the AHCA members only website at:
http://www.ahca.org/members/finance/medicaid/index.htm. In the comments, AHCA expressed a
full understanding of and agreement with CMS’ desire for fiscal integrity and expressed respect
for the government’s responsibility to enforce the fiscal integrity of all federal programs.
However, AHCA’s main concern was that the proposed rule rips a considerable amount of
funding away from states without adequate analysis of the problem or supporting data. For
example, CMS insists that private providers generally will be unaffected by the proposed rule, but
AHCA believes that all providers will be affected by the loss of funds. In addition, while CMS
estimated this proposed rule will result in $3.87 billion in savings over five years, it could not
support this figure. Indeed, the impact may be even worse. From the perspective of the long
term care sector, a key weakness in this proposed rule is CMS’ demonstrable uncertainty of the
impact of the rule. CMS does not know the extent of the potential harm to the government
nursing facilities nor to the overall system since it lacks data and information as to the impact of
piecemeal fix set forth in the proposed rule.

AHCA concluded that the proposed rule was an unsupportable piecemeal fix that could have a
disastrous effect on all health care providers by removing considerable funds from the system --
an act which can prolong and worsen Medicaid fiscal problems.

AHCA requested withdrawal of the proposed rule and recommended that CMS work with state
government representatives, hospital and long term care providers to work out a broad regulatory
framework that would help to ultimately provide consistency and stability to the Medicaid
program, assure adequate payment for Medicaid providers, provide access to quality health care,
and meet the highest standards of fiscal integrity.

CMS’ Medicaid Integrity Program
The Deficit Reduction Act of 2005 (DRA) created a new Medicaid Integrity Program (MIP)
designed to provide CMS with the resources necessary to combat fraud, waste and abuse in the
Medicaid program. Under the law, CMS must develop a comprehensive MIP. Congress
appropriated $5 million in fiscal year (FY) 2006; $50 million in FY 2007 and 2008; and $75
million annually for each FY after 2008 to carry out the operations of the MIP. The MIP will
target all Medicaid-licensed long term care providers, including DD residential services providers

Section 6034 of the DRA requires the federal government to organize a collective group (i.e.,
Department of Health and Human Services (HHS) Secretary, U.S. Attorney General, Director of
the Federal Bureau of Investigation, U.S. Comptroller General, HHS Inspector General and state
officials with responsibility for controlling provider fraud and abuse under the Medicaid program
– State Medicaid Directors, program integrity units and Medicaid Fraud and Control Units) every
five years to review and evaluate the MIP. This initiative represents the most significant single,
dedicated investment the federal government has ever made to ensure the integrity of the
Medicaid program.

In July 2006, CMS released the Comprehensive Medicaid Integrity Plan of the Medicaid Integrity
Program FY 2006-2010 (Plan) (See
http://www.cms.hhs.gov/DeficitReductionAct/Downloads/CMIP%20Initial%20July%202006.pdf). The
plan indicates in detail how CMS’ Center for Medicaid & State Operations (CMSO) will make
the MIP fully operational. Specifically, CMSO has two broad operational responsibilities:

         review the actions of those providing Medicaid services; and

         provide support and assistance to the states to combat Medicaid fraud and abuse.

Congress specifically requires CMS to use contractors to review the actions of those seeking
Medicaid payments, conduct audits, identify overpayments and educate providers and others on
program integrity and quality of care. Congress also mandates that the federal government devote
at least 100 full-time staff to the MIP, in collaboration with state Medicaid officials.

The MIP is based on 4 key principles:

         National leadership in Medicaid program integrity;

         Accountability for the program’s own activities and those of its contractors and the states;

         Collaboration with internal and external partners and stakeholders; and,
         Flexibility to address the ever-changing nature of Medicaid fraud.

The MIP will use the following functions to accomplish its goals:

         Collaboration and coordination with internal and external partners;

         Procurement and oversight of Medicaid integrity contractors who will conduct reviews,
            audits and education;

         Field operations to conduct state program integrity oversight review and provide training
            and technical assistance to the states; and

         Fraud research and detection to provide statistical support, identify emergency trends and
            conduct special studies.

 The MIP will closely coordinate with the Medicare Integrity Program.

On July 29, 2006, soon after the release of the plan, CMS held an MIP open door call. CMS’
discussion essentially mirrored the plan, but AHCA was able to learn some new information:

         CMS will create three to five MIP field offices that will serve as the point of contact for
          the state. Several CMS regional offices will be covered by one MIP field office.

         If an overpayment is identified by the MIP, the state is responsible for collecting the
          money owed to the Medicaid program and repaying the federal government as
          appropriate. Providers may expect, at this point, to continue working with states on
          Medicaid pay-back plans instead of MIP contractors or CMS.

         The MIP may look at Medicaid managed care organizations to ensure proper payment,
          but it will not impact how states contract with Medicaid managed care organizations.
          The lack of MIP involvement in Medicaid managed care contracting, at this point, is not
          likely to dampen states’ interest in growing managed care penetration or current state
          interest in enrolling aged, blind and disabled populations in Medicaid managed care
          arrangements.

AHCA will continue to monitor and provide updates on MIP.

HHS Approves First HCBS State Plan Option under DRA
As reported previously by AHCA (see page 9 of the May 2006 Regulatory Update on AHCA’s
members only web site at
http://www.ahca.org/members/who/newslets/regupdate/regupdate060524.pdf and page 11 of the
March 2006 issue at
http://www.ahca.org/members/who/newslets/regupdate/regupdate060324.pdf), Section 6086 of
the Deficit Reduction Act (DRA) allows a state to include HCBS in its Medicaid plan, thereby
eliminating the need for a waiver. On April 5, 2007, the Department of Health and Human
Services (HHS) approved the first state plan option under this provision in agreeing to Iowa’s
new benefit effective January 1, 2007, which targets persons with severe mental illness and
provides for HCBS case management services and “habilitation” services at home or in day
treatment programs. "Iowa is the first to benefit from the federal law giving states more choice
over their Medicaid benefit plans," HHS Secretary Mike Leavitt said. "Stopping the burdensome
cycle of continually having to request federal government permission to offer a benefit that is
good for people and programs will be a huge relief for states and beneficiaries." "We expect
many states to follow Iowa's lead in taking advantage of the DRA's provision which grants new
freedom to state Medicaid programs and the people who depend upon them," said Leslie
Norwalk, acting administrator of the Centers for Medicare & Medicaid Services.

Final Reports on Real Choice Systems Change Grants
RTI International, under contract with CMS, is producing a series of final reports to document the
outcomes of the Real Choice Systems Change Grants. The first in the series, Real Choice Systems
Change Grant Program--FY 2001 Nursing Facility Transition Grantees: Final Report was
released last August. The second report, Real Choice Systems Change Grant Program—FY 2002
Community-Integrated Personal Assistance Services and Supports Grantees and Real Choice
Grantees was released in March 2007.

According to the final report on nursing facility transition grants, which includes transition of
both residents of nursing facilities and ICFs/MR, grantees reported system improvements to
create a more balanced delivery system including:

        Establishing new funding for transition services and expenses;

        Increasing the number of waiver slots for transitioning individuals;

        Enacting new statutes and developing new policies to facilitate transitions;

        Increasing Independent Living Center transition capacity and collaboration;

        Increasing the supply of affordable and accessible housing; and

        Increasing outreach and the use of educational and technical materials.

RTI also reported that many barriers remain to transitioning individuals from facilities, including:

       Scarce affordable and accessible housing;

       Home-and community-based services HCBS, in many states, do not provide the amount,
        duration and scope of services needed by people with severe disabilities;

       Transitioning individuals is difficult, time consuming and requires a variety of expenses,
        such as apartment security deposits, that are beyond the scope of traditional Medicaid;

       Financial and functional eligibility criteria for Medicaid HCBS are restrictive, leaving
        some people unable to qualify for services in the community;

       Skepticism by families, government officials and providers that transition programs
        work, and concern by providers about occupancy rates and profitability;

       Shortage of direct service workers; and

       Lack of public transportation.

The report on nursing facility and ICFs/MR transitions may be accessed at
http://www.hcbs.org/files/96/4791/NFTGrantee.pdf.

The second RTI report documents the outcomes of the Community-Integrated Personal
Assistance Services and Supports (CPASS) and Real Choice grantees. According to the report,
most of the accomplishments from these grants are preliminary steps in the process to improve
long term care systems. The grants were used as catalysts for new initiatives or to expand
existing initiatives. The report provides an overview of 35 states’ initiatives and includes lessons
learned and recommendations to guide states undertaking similar initiatives. The report may be
accessed at http://www.hcbs.org/files/110/5451/01CPASSFinalRpt.pdf.

CMS Conducts 7th Annual New Freedom Initiative Meeting
On March 5-7, 2007, CMS conducted its annual New Freedom Initiative (NFI) meeting. This
year, the theme was “Access to Community Living: Promoting Independence and Choice.” Gail
Arden, Director, Disabled and Elderly Health Programs Group at CMS’ Center for Medicaid and
State Operations, opened the conference by explaining that the conference goals were to help NFI
and Money Follows the Person (MFP) grantees understand opportunities available under the
Deficit Reduction Act (DRA) and think about reform from a person-centered perspective. She
announced that this spring, CMS will release a real choice systems grant solicitation for states to
develop and implement a state profile that focuses on rebalancing, similar to the model state
profile that CMS released in January (see page 8 of the January issue of Regulatory Update at
http://www.ahca.org/members/who/newslets/regupdate/regupdate070125.pdf for more
information on CMS’ model state profile and assessment tool). $15.5 million will be available
for these grants. In addition, CMS will solicit proposals for a technical contract to a) convene a
stakeholder meeting on rebalancing indicators and b) create a standard set of rebalancing
indicators.

In a keynote presentation, CMS Acting Administrator Leslie Norwalk stated that, “We know we
get higher quality and better outcomes” in HCBS settings, but also noted that institutional care is
still appropriate for some individuals. She suggested that institutional care should be an option,
but not the default. She also stressed her belief that HCBS saves money.

Money Follows the Person Post-Conference Intensive
Immediately following CMS’ New Freedom Initiative conference (see item above), CMS
conducted five “grantee intensive” sessions. The intensive session on the Money Follows the
Person (MFP) Demonstration Program focused on 1) regulatory requirements and potential issues
for nursing facilities and intermediate care facilities for Persons with Mental Retardation
(ICFs/MR) related to discharge planning for individuals who are transitioning to the community;
2) responsibilities of the transition program coordinators in the MFP program; and 3)
coordination and collaboration between facility discharge planners and transition program
coordinators.

Janice Zalen, Senior Director of Special Programs, American Health Care Association,
participated on a panel discussion. She addressed the importance of transition program
coordinators working cooperatively with facilities. She noted that facility personnel have
important information relating to the needs of the individuals and their knowledge will help
toward their successful transitions. She also stressed the importance of not being negative and
that the move should be viewed as simply moving to a more appropriate (not better) setting.
Other panelists, representing the MD Transition Program and the TX Transition Program, agreed
that working collaboratively is basic to success. Jeane Nitsch, CMS Survey and Certification,
described facilities obligations relating to discharge.
CMS Issues State Medicaid Director Letter on Citizen Documentation
On February 22, 2007, CMS issued a letter to state Medicaid directors on changes to the citizen
documentation requirement that were made under the Tax Relief and Health Care Act of 2006
(TRHCA). The TRHCA legislation and the CMS letter clarify that, as presented in the CMS
regulations in July, the documentation requirements do not apply to many individuals in long
term care. The CMS letter explains that the TRHCA corrects a scrivener’s error so that
documentation requirements do not apply to an individual declaring to be a citizen or national of
the United States who is eligible for Medicaid and is entitled to or enrolled in Medicare. Since the
scrivener’s error was described in CMS’ Interim Final Rule, the correction does not change
current CMS policy. The TRHCA also exempts two additional groups of individuals as follows:

       Individuals receiving (1) Social Security benefits on the basis of a disability or (2) SSI
        benefits;

       Individuals with respect to whom (1) child welfare services are made available under
        Title IV-B of the Social Security Act or (2) adoption or foster care assistance is made
        available under Title IV-E.

The letter can be found on the CMS web site at
http://www.cms.hhs.gov/SMDL/downloads/SMD022207.pdf.

AHCA Report Examines Cost-Effectiveness of HCBS
AHCA released a new report on HCBS, entitled Medicaid-Financed Home and Community-
Based Services Research—A Synthesis. The report, prepared by Avalere Health, LLC, examines
relevant research on HCBS, with a focus on cost effectiveness and quality. The purpose of this
report is to inform policy discussions at the federal and state levels and provide a synthesis of
what is known and not known about HCBS programs in the current body of peer-reviewed
literature.

According to the report, over the years, it has been difficult to assess peer-reviewed research on
HCBS program success in reducing total LTC costs. To date, state cost-effectiveness findings on
HCBS programs have been conflicting. In this context, “cost-effectiveness” means that HCBS
expansion produced no new costs for states. In addition, understanding HCBS outcomes has been
made even more difficult by the lack of information on states’ HCBS quality assurance and
improvement strategies—particularly as HCBS has expanded. These uncertainties are magnified
by increasing Medicaid budget pressures and an increasing demand for higher acuity services in
nursing facilities—all while new Medicaid program options to expand HCBS services, authorized
by the Deficit Reduction Act of 2005 (DRA), have heightened state interest in HCBS options.
Below are three key facts from the body of literature on nursing facility care and HCBS.

Fact #1. Nursing facilities and HCBS programs are appropriate for certain people, at
certain times, and for certain periods of time.

Fact #2. HCBS has not stopped Medicaid LTC expenditure growth. Research shows that
HCBS can increase overall LTC costs.

Fact #3. Research shows notable improvements in nursing home quality. However, little is
known about quality in rapidly growing HCBS programs.

In conclusion, some of the key implications to be gleaned from the research literature on
Medicaid-financed HCBS programs include:
     HCBS investment at the expense of facility-based services may result in future capacity
      issues as demand for higher acuity services increases.

     HCBS expansion and reduced facility-based spending are not a panacea for Medicaid
      LTC cost growth. New ideas that could increase the use of private LTC financing
      options (e.g., private LTC insurance, retirement saving) are needed.

     With little known about HCBS quality, HCBS expansion could put people at risk and
      invest additional state dollars in unclear quality outcomes.

The full report is available in PDF format on the AHCA Research web site at
www.ahca.org/research/index.html#medic. Questions should be directed to Steven Gregory,
Director of Medicaid Reimbursement and Research, at 202-898-2849 or sgregory@ahca.org.

Kaiser Family Foundation Releases HCBS Data Update
The Kaiser Family Foundation (KFF) released a “Data Update” on three main Medicaid HCBS
programs: 1915(c) HCBS waivers, the home health benefit, and the state plan personal care
services benefit. The Data Update also examines policies that states use to control spending
growth in waiver programs, such as eligibility criteria and waiting lists.

Some findings include:

       Overall spending on Medicaid HCBS, i.e., 1915(c) waivers, home health, and personal
        care services, increased 13% to $28.8 billion in 2003.

       Total enrollment in Medicaid HCBS programs increased 7% with nearly 2.6 million
        individuals being served through these programs in 2003.

       In 2005, states reported using cost controls on HCBS waivers such as restrictive financial
        and function eligibility standards, enrollment limits, and waiting lists.

       The average length of time an individual spends on a waiting list ranges from 13 months
        for aged/disabled waivers to 26 months for developmental disabilities waivers.

Despite increasing pressures for expanding Medicaid HCBS, some states are restricting the
growth of Medicaid HCBS programs using cost control policies, as mentioned above. Medicaid
1915(c) Home and Community-Based Service Programs: Data Update may be accessed on the
KFF web site http://www.kff.org/medicaid/upload/7575.pdf.

Report on State-Only Funded HCBS Programs
The Center for Personal Assistance Services (PAS) recently released a paper on public funds that
are used to fund HCBS, concentrating on 1) state-only funded HCBS programs, 2) Older
Americans Act funds and 3) non-waiver, Medicaid funds. A table with state-by-state information
is included in the paper.

Selected findings include:

       State-funded programs vary in size, scope and funding method, with some funded
        through general state revenue (taxes) and others using creative methods such as revenue
        from state lotteries or tobacco settlements.

       An advantage of state-funded HCBS is that it is not constrained by federal
        regulation and can cover people who might not otherwise be eligible for support.

       Although 50 states report having state-funded multi-service programs for HCBS, some of
        these funds are used to match federal funds provided through the Older Americans Act or
        block grants.

       Most state-only funded programs are relatively small in terms of the amount spent and
        population served.

       Most states and the District of Columbia have state-only funded HCBS programs
        covering mostly elderly and/or physically disabled adults.

       The three states where no programs were found are Missouri, Mississippi and Montana.

       The largest participation on a state-only funded HCBS program was the ‘Options’
        Program in Pennsylvania that cost $207 million in 2002 and served almost 230,000
        people, devoting state lottery revenue to funding services for seniors.

       The state with the most state-only funded programs is Delaware with 6 programs.

To access the paper or information on a particular state, go to

http://www.pascenter.org/state_based_stats/pick_a_state.php?url=http%3A%2F%2Fwww.pascen
ter.org%2Fstate_based_stats%2Fstate_only_funded.php&title=State%20Only%20Funded%20HC
BS.

CMS New Freedom Initiative Technical Assistance Database
CMS launched a new database, available on its web site, which will contain information on
existing and upcoming research, conferences, toolkits, surveys and policy briefs relating to the
New Freedom Initiative. To access the Technical Assistance Database, go to www.DEHPG.net.
Once you select a category of interest, you will be required to type in the user name
“TAdatabase” and the password “ Readyonly#1.” By clicking “Systems Change Grant
Reporting,” for example, one can review the New Freedom Initiative (NFI) grant reports for their
state.



Life Safety Code/OSHA
OSHA Selects High Hazard Work Sites for Inspection, Adds Residential Facility
Protocols
In a May 14 directive, the Occupational Safety and Health Administration (OSHA) announced
that it is targeting approximately 4,150 high hazard work sites for unannounced comprehensive
inspections over the next year under its 2007 site specific targeting (SST) plan. Work sites were
identified from self-reported data from a 2006 survey of 80,000 work sites, which was based on
2005 injury and illness data. As in the past, *LTC facilities are under the SST program, but the
primary focus of these inspections is on:

       Ergonomic stressors relating to resident handling;

       Exposure to blood and other potentially infectious materials;
       Exposure to tuberculosis; and

       Slips, trips and falls.

However, when additional hazards come to the attention of the compliance officer, the scope of
the inspection may be expanded to include those hazards.

SST-07 will cover worksites on the primary list that reported 11 or more injuries or illnesses
resulting in days away from work, restricted work activity or job transfer (DART) for every 100
full-time workers or 9 or more cases that involve days away from work due to injuries or illnesses
(DAFWII) for every 100 full-time workers. The national DART rate for private industry in 2005
was 2.4 and the DAFWII case rate was 1.4.

A significant change in the SST-07 plan is clarification of inspection scope protocols for
residential care facilities. These include:

        1) In nursing and personal care facilities [e.g., ICFs/MR] where the patients/clients “live-
        in”, the focus of the inspection will not change. *See LTC facility inspection focus
        above.

                                  The following are new protocols:

        2) In facilities that also have buildings such as greenhouses, classrooms, and woodshops,
        these additional buildings will also receive an SST inspection.

        3) In group home settings or when employees provide care in clients’ homes, OSHA
        compliance officers will not inspect the facility’s living quarters or clients’ individual
        homes. However, the officer can interview employees to determine whether effective
        systems are in place to prevent inherent industry hazards; e.g. provision of Hepatitis B
        vaccinations for employees.

As in previous years, establishments may be deferred from the SST inspection for 90 days if they
requested an initial full-service OSHA consultation visit from the OSHA consultation program
and the state consultation program has scheduled that visit. Establishments that participate in an
OSHA strategic partnership may have their SST inspection deferred for up to six months.
Establishments that have requested an initial full-service comprehensive consultation visit from
the OSHA Consultation Program and that visit has been scheduled may be deferred from the SST
inspection for 90 days. Establishments in the process of applying for or have been approved as a
participant in the Voluntary Protection Program (VPP) or are in the Safety and Health
Achievement Recognition Program (SHARP) are deleted from the list.

The OSHA SST-07 directive can be read in its entirety on OSHA’s web-site at
http://www.osha.gov/OshDoc/Directive_pdf/CPL_02_07-03.pdf.

Protecting America’s Workers Act Introduced
On April 26, 2007, in the U.S. Senate and House of Representatives respectively, Sen. Edward
Kennedy (D-MA) introduced the Protecting America’s Workers Act (S. 2371); Rep. Lynn
Woolsey (D-CA) introduced the corresponding bill in the House. If passed, the legislation would
establish criminal penalties for employers whose workers are seriously injured or die as the result
of the employer’s willful safety and health violations, and sets the OSHA minimum penalty for
employers at $50,000 for a worker's death caused by such violations.
In addition, the legislation would provide OSHA protections to 8.5 million workers who are not
covered now, including federal, state, and local public employees and some private sector
workers, and addresses employer pay for personal protective equipment, whistleblower
protections, and the public's right to know about safety violations.

Ergonomics Hazards: OSHA to Follow Up with Inspected Employers
OSHA recently announced that it would contact employers that had been inspected for ergonomic
hazards and that received an ergonomics hazard alert letter (EHAL) since April 1, 2002 to
determine whether they have addressed the hazards identified in their workplaces. According to
July 2006 OSHA enforcement data, 422 ergonomics hazard alert letters were sent to employers
from April 2002 through May 2006.

The “Ergonomic Hazard Alert Letter Follow-up Policy” describes specific procedures the agency
will follow when contacting employers that have received an EHAL. Procedures include:

       OSHA first will contact employers by telephone and facsimile one year after an EHAL
        has been delivered to determine whether identified hazards and

        deficiencies were addressed.

       The employer will be faxed a copy of the original EHAL and a letter requesting:

        a. measures taken to address hazards noted in the EHAL;

        b. copies of injury and illness logs dating to the close of the inspections that prompted the
        letter; and

        c. the estimated number of full-time employees or work hours for exposed employees for
        the time period corresponding to their injury and illness reports.

       Employers will be questioned about all ergonomic injury control measures that were
        implemented, including those that were recommended in the original EHAL.

       Employers will have 20 working days after the phone/fax contact to respond to OSHA.

       OSHA will then categorize employers' responses as:

        a. No response

        b. Inadequate response

        c. On-the-right-track response

        d. Successful Response

       The follow-up process also provides for additional contact with employers and for
        unannounced inspections.

NIOSH Recommends Surveillance of Health Care Workers Exposed to Hazardous
Drugs
In a document posted on the Centers for Disease Control and Prevention’s (CDC) web site on
May 4, 2007, the National Institute for Occupational Safety and Health (NIOSH) recommended
that employers establish a medical surveillance program to protect workers, such as nurses,
physicians, maintenance workers, etc. who come in contact with hazardous drugs in the
workplace. Exposure to hazardous drugs can occur while these workers are creating aerosols for
patient treatment, cleaning up spills, or preparing, administering or disposing of hazardous drugs,
such as chemotherapy.

The elements of a medical surveillance program for hazardous drugs should include, at a
minimum, the following at the time of employee hire and periodically thereafter:

       Reproductive and general health questionnaires;

       Laboratory work, including complete blood count, urinalysis, etc.;

       Physical examination; and

       Follow up for those workers who have shown health changes or have had a significant
        exposure (e.g., substantial skin contact, cleaning a large spill, etc.)

Periodic health questionnaires and laboratory results should be looked at for trends that may be a
sign of health changes because of exposure to hazardous drugs. If health changes are found, the
employer should take the following actions:

       Evaluate current protective measures, e.g., policies for use of personal protective
        equipment (PPE), employee compliance with PPE, etc.;

       Develop plan of action that will prevent further employee exposure;

       Ensure confidential notification of any adverse health effect to an exposed worker and
        offer alternative duty or temporary reassignment; and

       Provide ongoing medical surveillance of all workers at risk to determine whether the new
        plan is effective.

NIOSH’s recommendations can be read in their entirety at http://www.cdc.gov/niosh/docs/wp-
solutions/2007-117/pdfs/2007-117.pdf.

OSHA Required Training Must Be Appropriate for Workers
In an April 17, 2007 memo, OSHA states that when employers train employees on OSHA
standards, training must be presented in a language and vocabulary that workers can understand.
Per the memo, if employees are not literate, “telling them to read training materials will not
satisfy the employers' training obligation.”

OSHA compliance safety and health officers (CSHOs) must determine whether employees have
been trained effectively; if a deficiency is found, the CSHO must document "any barriers or
impediments to understanding, as well as any other facts that would demonstrate that employees
were unable to understand the training and apply it to their specific workplace conditions.”

The training memo can be read in its entirety at
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_i
d=25658.
OSHA Issues Final Rule on Electrical Installation Standard
OSHA recently issued a final rule for an updated electrical installation standard, which will
become effective on August 13, 2007. The revised standard adds consistency between OSHA's
requirements and many state and local building codes which have adopted the 2000 edition of
National Fire Protection Association’s (NFPA) electrical safety requirements (NFPA 70E) and
the 2002 edition of the National Electrical Code (NEC.) Changes to OSHA's general industry
electrical installation standard focus on safety in the design and installation of electric equipment
in the workplace. The updated standard includes a new alternative method for classifying and
installing equipment in hazardous locations and new requirements for circuitry. It also sets
different training requirements for employees based on the extent of their work with electrical
equipment.

To view the final rule, go to the February 14 Federal Register at
http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-
1360.pdf.

Clarification Issued on Allowable Door Gaps
CMS recently issued a Survey and Certification (S&C) Memorandum clarifying allowable gaps
for corridor doors. AHCA had pushed for this clarification and expressed satisfaction with the
content of the memo. To read the S&C memo and a series of questions and answers related to the
memo, use this link: http://www.ahca.org/members/operate/life-safety/index.htm.

Revised OSHA Rights Poster Available
On February 12, 2007, OSHA announced that a revised "It's the Law" poster, which informs
employers and employees about their rights and responsibilities for a safe and healthful
workplace, is available and can be downloaded from the agency's web site.

The poster is also known as the “OSHA Notice of Employee Rights,” and it is required to be
displayed in every workplace in the United States.

The poster is available in both English and Spanish and may be obtained from any OSHA
regional or area office or by writing to the OSHA Publications Office, room N-3101, 200
Constitution Ave. N.W., Washington, D.C. 20210; (202) 693-1888. The poster also may be
downloaded at http://www.osha.gov/pls/publications/pubindex.list.



Workforce
CMS Awards Grants to Strengthen the Direct Care Workforce
CMS recently announced that the National Direct Service Workforce Resource Center awarded
its second round of individualized technical assistance (TA) grants to five state developmental
disabilities (DD) agencies: Georgia, New Jersey, North Carolina, Utah, and Wisconsin. Details of
the grants for each state include:

       Georgia: The grant will support a study that will provide recommendations and assistance
        to align Georgia's Direct Support Professional certificate program with proposed national
        standards.
       New Jersey: The grant will support designing a career path for a statewide service
        delivery system, and will assist provider agencies, the Department of DD, and Medicaid
        to explore sources of funding or ways to change current funding practices to find funds to
        implement and support a career path.

       North Carolina: The grant will support a “Frontline Worker Initiative,” the goals of which
        include determining core competencies for training, coordinating venues for training, and
        implementing marketing campaigns to increase the supply of frontline workers.

       Utah: The grant will support the “Workforce Augmentation and Integration
        Taskforce”initiative to develop and implement web-based training, conduct market
        comparability studies on direct support worker (DSW) wages to determine adequate
        levels of compensation, and provide assistance to providers and families to devote greater
        resources toward workforce development.

       Wisconsin: The grant will aid in implementing the “Meeting the Demand for Quality
        Direct Care Workers Resulting from Managed Long-Term Care Expansion” project.
        Plans include developing a methodology for projecting the demand for direct care
        workers, developing training materials for self-directed consumers and workers, and
        supporting the implementation of the College of Direct Supports.

Applications for 2008 technical assistance grants will be available in late summer 2007.

AHCA Comments on FMLA Challenges for Employers
On February 12, 2007, AHCA submitted comments to the Department of Labor (DOL) regarding
long term care (LTC) employers' administration of Family and Medical Leave Act (FMLA)
benefits to employees and how this affects facility operations. The FMLA entitles eligible
employees of covered employers to take up to a total of twelve weeks of unpaid leave during a
twelve month period for various health reasons, including the birth of a child, care of a family
member with a serious health condition, or when the employee is unable to work due to their own
serious health condition.

AHCA noted in its comments that there has been conflict between employers and employees
about what constitutes a "serious health condition." In addition, due to low Medicaid
reimbursement rates, in many LTC facilities the human resources responsibilities fall upon
facility administrators and clinical staff who are already burdened with other responsibilities and
may not have formal benefits training. Therefore, simplification of FMLA paperwork and
administrative processes would greatly assist LTC facilities in managing this benefit. AHCA’s
comments can be viewed on the members only site at
http://www.ahca.org/members/operate/labor/FMLA_comments_ltr_070212.pdf. The FMLA can
be read in its entirety at http://www.dol.gov/compliance/laws/comp-fmla.htm.

DOL’s Wage and Hour Division Releases Pandemic Flu Fact Sheet
The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) administers a
variety of worker protection laws, including the Family and Medical Leave Act (FMLA) and the
Fair Labor Standards Act (FLSA.) In a fact sheet released on February 9, 2007 WHD answers
some basic questions to help employers and employees understand how federal laws regarding
leave and pay might apply to persons affected by a pandemic flu outbreak. Some Fact Sheet
questions and answers include:
Q: Will I be able to take FMLA leave if I or a family member are seriously sick with the flu?

A: An eligible employee may take FMLA leave for certain medical reasons affecting themselves
or eligible family members, which may include the flu, where complications arise. An illness
must meet the regulatory definition of a “serious health condition” which includes (among other
conditions) an illness requiring an overnight stay at a medical care facility or continuing treatment
by a health care provider. Ordinarily, the common cold or seasonal flu does not meet the
definition of a serious health condition unless complications arise.

Q: Can I stay home under FMLA leave to avoid getting the pandemic flu?
A: No. FMLA-protected leave is available only to eligible employees who are actually suffering
from a serious health condition or who are needed to care for qualifying family members who
have serious health conditions.

Q: As an hourly employee, how many hours is my employer obligated to pay me when I only
worked a partial day because the employer's business closed as a result of the flu outbreak?

A: The FLSA requires that you be paid for the hours actually worked. It does not require
employers who are unable to provide work to employees due to a national health crisis to pay
non-exempt employees for hours the employees would have otherwise worked.

Q: Do the FMLA and FLSA apply to healthcare workers or critical employees during a
   pandemic flu or other disaster?

A: Yes. The requirements of these laws are not subject to waiver during a national health
emergency.

To view the entire fact sheet, go to http://www.dol.gov/esa/regs/compliance/whd/whdfs64.htm.
For more information on FMLA go to http://www.dol.gov/dol/topic/benefits-leave/fmla.htm; for
FLSA information go to http://www.dol.gov/compliance/laws/comp-flsa.htm.



Clinical
NPUAP Releases New Pressure Ulcer Definitions
The National Pressure Ulcer Advisory Panel (NPUAP) recently redefined the definition and
stages of pressure ulcers, and added two new ulcer stages: suspected deep tissue injury (DTI) and
“unstageable.” This work is the culmination of over five years of NPUAP research, beginning
with the identification of DTI in 2001. To view the ulcer definitions, go to
http://www.ahca.org/members/quality/initiate/NPUAP_PressReleaseonStaging_Feb2007.pdf.
For more information on AHCA’s involvement with NPUAP, see the Clinical Corner section of
last month’s Regulatory Update at
http://www.ahca.org/members/who/newslets/regupdate/regupdate070220.pdf.

Data
New OSCAR Data Summary Report Available to AHCA Members
The Health Services Research and Evaluation (HSRE) group at AHCA posted a new report in the
Nursing Facility and ICF/MRDD OSCAR (Online Survey Certification and Reporting) statistical
data reports. This report uses current OSCAR survey data from the Centers for Medicare &
Medicaid Services and provides summary information on the percentage of sprinklered nursing
facilities at the national and state level.

The report is available on the Research and Evaluation page of the AHCA members only web site
at http://www.ahca.org/members/who/ris/index.htm. Scroll down to the OSCAR Data Statistical
Reports section and select the Nursing Facility Operational Characteristics link to view this
report.

Questions or comments about these reports should be directed to HSRE staff at the following
email(s): Lisa Matthews-Martin: lmatthews@ahca.org, Peter Gruhn: pgruhn@ahca.org




 The American Health Care Association (AHCA) and the National Center for Assisted Living (NCAL) are
  committed to performance excellence and Quality First, a covenant for healthy, affordable, and ethical
     long term care. AHCA and NCAL represent more than 10,000 non-profit and for-profit providers
   dedicated to continuous improvement in the delivery of professional and compassionate care for our
    nation’s frail, elderly and disabled citizens who live in nursing facilities, assisted living residences,
 subacute centers and homes for persons with developmental disabilities. For more information, contact:

                                              AHCA/NCAL
                      1201 L Street, N.W., Washington, D.C. 20005-4014
                                              202-842-4444
                                              www.ahca.org
             Staff contact: Melissa Temkin, 202-898-2822, mtemkin@ahca.org

				
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