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Bush administration parting shot obstructs litigation process

April 1, 2009
by root
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The Bush administration, in a last-minute ruling, prohibited state health departments and contractors from providing information in private lawsuits involving federal government-reimbursed nursing facilities. Approval from the federal Department of Health and Human Services would be required for the information to be released.

The surprise move, enacted without public notice or approval, now classifies state inspectors and Medicare/Medicaid contractors as federal employees.

The new rule has shut off a potential source of information about abuse and neglect in long-term care facilities, plaintiff's attorneys and advocates noted. But others have observed that the rule forces both plaintiffs and nursing home defendants to go to greater lengths, including obtaining court orders, to secure inspection reports or depositions. An American Health Care Association source said that facilities will have more difficulty getting information on how state inspectors determine penalties, citations, and orders to shut down.

HHS says the rule is justified as necessary to accommodate the hiring of new contractors for Medicare reimbursements, audit/fraud interviews and performing survey, certification and enforcement reviews, noting their work can be disrupted by such requests. Lawyers for both plaintiffs and defendants plan to approach the Obama administration and present strategies to rescind the rule.

CMS delays MDS 3.0 implementation

Minimum Data Set (MDS) 3.0 will be delayed until October 1, 2010, according to an announcement from the Centers for Medicare & Medicaid Services (CMS) at the Skilled Nursing Facility/Long Term Care Open Door Forum in early March.

The delay comes from concerns that the original start date provided insufficient time for all stakeholders-including software vendors, state agencies, and other systems-to prepare for modifications to the tool used in resident assessments and Medicare payments, CMS said.

Implementation of MDS 3.0 was originally scheduled for October 2009, and the item sets to be included were intended for release last month. However, during a conference call at the forum, Tom Dudley, MDS 3.0 project officer for CMS, said the “data specs and item sets due to be published this month will likely not be published until October [2009].” Dudley also said the agency is currently revising the MDS 3.0 timeline, which should be released sometime this spring, and warned skilled nursing providers against pursuing current MDS 3.0 training as details are still murky and “likely to be changed.”

Among expected updates anticipated for inclusion in MDS 3.0 include the pain, mood (PHQ-9), and cognitive (BIMS) interviews and the delirium (CAM) observations. These components can be integrated into assessments and help in developing care plans.

For more information about MDS 3.0, including downloadable PDFs, visit http://www.ltlmagazine.com/MDS3.0.

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Associate Editor Joins LTL Staff


Kevin Kolus, 23, a recent graduate of Kent State University's (Ohio) School of Journalism and Mass Communication, has joined Long-Term Living as associate editor. Kolus will be working on all aspects of the magazine and is particularly focused on http://ltlmagazine.com.

“Long-term care is deceptively robust,” Kolus says. “From overarching government regulations to intimate tales of resident life, the potential for meaningful stories impacting this aging nation is limitless.”

Long-Term Living 2009 April;58(4):10
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