Latest therapy-billing showdown could be ominous sign for long-term care providers

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James M. Berklan
James M. Berklan

Don't let anyone tell you that long-term care operators don't know how to read between the lines. They might not have known to fear a McKnight's Monday news item before it broke, but it definitely has their attention — and apprehension — now.

McKnight's Senior Writer Tim Mullaney's story has struck like a thunderbolt.

“Nursing homes must oversee their therapy providers,” the headline read, in part. While many might find that statement a bit obvious, others, including many providers, believe the story reveals unfairly assigned responsibility.

True, the $3.8 million settlement is merely a drop in the bucket compared to other gargantuan settlements in this sector. But the impact of this one could have widespread ripple effects beyond estimation.

The Department of Justice announcement that spurred the news article could be an early shot across providers' bow. Veteran observers feel more similar settlements could be on the way. Or possibly worse: criminal indictments.

The Centers for Medicare & Medicaid Services is not being Putin-esque about this, either. The agency is not only threatening further action but it is also ready to take full responsibility for any carnage that ensues. Cross CMS at your own peril, the federal agency seems to be saying.

Providers around the country have nervously taken notice. References to the settlement have taken place in many settings, already making it one of McKnight's most read stories of the month after just a few days in circulation. Reimbursement expert Leah Klusch even referred to the settlement during impromptu comments at the McKnight's Fall Online Expo session she presented Tuesday.

She correctly noted that, just as an administrator must take ownership for his or her building's MDS assessments, so must Mr. or Ms. Administrator be on the hook for any malfeasance that stems from a contract therapy provider.

Consumers shouldn't be shocked by this type of blame-assigning. It's like having a professional tax preparer — a licensed professional at that — calculate your tax returns, make significant mistakes and then still leave you holding the bag if government auditors find problems.

While it might not seem fair, responsibility must be assigned and the guy with the biggest stick usually gets to determine who's responsible.

Providers are understandably anxious about future implications. A look at reader comments at the end of Mullaney's story reveals strong feelings both ways. Some blame allegedly greedy contract therapy companies while others feel skilled nursing providers have turned a blind eye and run “all the way to the bank.”

It just goes to show that Uncle Sam is not ready for a memory care unit yet. His recall is as strong as ever. Once providers were “busted” for collecting disproportionately high amounts of rehab funding after recalibration of the MDS form and RUGs a few years ago, it's been a rough ride. Just as former CMS Administrator Tom Scully warned it would be.

Trying to pocket billions of dollars the feds don't think you're entitled to tends to spike indignation. So much so that CMS announced after just six months under the new program that it would be snatching back $5 billion it believed providers wrongly collected.

Not waiting and observing a bit longer was one tip-off. But the telltale sign that regulators were truly outraged was the way they reclaimed the funds in question: They did it all at once, not in a less confrontational, incremental way that officials often use.

There was no reading between the lines to get that message. Or this one: Officials are prepared to continue with more harsh lessons, especially for those they think still need them.

James M. Berklan is McKnight's Editor. Follow him @LTCEditorsDesk.

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Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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