Murtha Means More

New Haven Area Senior Network Group - Monthly Legal Update - November 2014

November 18, 2014

By: Dena M. Castricone

Dena Castricone is member of the Long Term Care/Health Care Practice Group and is an experienced litigator.  As part of the Long Term Care/Health Care Practice Group, she assists nursing homes, assisted living communities, CCRCs, hospitals and home health care agencies with a wide range of regulatory, compliance, litigation and risk management issues. As a litigator, Ms. Castricone has extensive experience in a wide range of routine and complex business litigation. If you have any questions about the issues addressed below, please contact Dena at 203.772.7767 or

Focused MDS Surveys coming in 2015 for SNFs
CMS recently announced that it was expanding its piloted focused survey to assess MDS coding practices from five states to the entire country in 2015.  In addition to assessing coding practices and their relationship to resident care, the surveys will also examine staffing levels in an attempt to verify self-reported staffing information.  The MDS survey will be focused on the requirements contained at tags F272 through F287.  CMS expects that the state will allocate two surveyors for these surveys, which CMS estimates will take two days.  Results from the survey will be subject to deficiency citations and sanctions.  If the focused survey uncovers issues related to care, the surveyors may investigate these issues during the MDS survey or may refer the matter back to the state as a complaint. Click here to read the memo from CMS.

Patients Can Sue in State Court for Breach of Confidentiality Despite HIPAA
Earlier this month, the Connecticut Supreme Court held that a patient could sue her former OB-GYN physician practice in state court for improperly disclosing her records pursuant to a subpoena, despite the fact that HIPAA does not permit individuals to sue for HIPAA violations.  Prior to this decision, courts generally dismissed state law claims that essentially alleged a HIPAA violation because HIPAA did not allow private lawsuits.  Not only are these claims now permitted, but the patient may also use the HIPAA regulations to show how providers should be ensuring privacy and confidentiality of health records.  This decision highlights the importance of complying with state and federal privacy and confidentiality laws as well as the provider’s Notice of Privacy Practices.  Finally, this case reminds providers that they must exercise care and ensure that they are complying with the law when responding to subpoenas; as a general matter, a subpoena from a private attorney is not sufficient for a release of protected health information without an authorization or court order. Click here to read the case.

Face-to-Face Encounter Requirement Changes for Home Health Agencies for 2015
CMS finalized changes to the Home Health Prospective Payment System.  In addition to setting rates for 2015, CMS also made changes to the face-to-face encounter requirements that should streamline the process for HHAs.  First, CMS eliminated the narrative requirement for the face-to-face encounter.  While no narrative is required, the physicians must have sufficient documentation in medical record
to support the certification of a patient’s homebound status and need for home health services. In addition, the new rule clarifies that the face-to-face encounter is required only for the certification, not re-certification.  Importantly, if the home health claim is denied, the physician claim for the certification would also not be covered. Click here to read final rule. 

New Final Payment Rule from CMS Enhancing Coordination of Care
In 2015, Medicare will pay for chronic care management services for people with multiple chronic conditions.  Historically, Medicare would not pay for chronic care management services such as telephone calls with nurse care managers because those services were not delivered in a clinical setting.  CMS has recognized the value of such services and will pay a monthly coordination fee of $40.39 for the coordination of care of an individual with two or more chronic conditions expected to last a year or longer (or until death).  The beneficiary must provide written consent for the coordination services and those services must be designed to reduce duplicate testing and overtreatment between providers.  Click here to read final rule.  

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