The Texas Supreme Court has issued a favorable ruling for Medicare providers who use arbitration agreements. In a case involving a Texas nursing home, the Court ruled that the trial court should have compelled arbitration. You can find the case by clicking here.

The Court considered the question as to whether the Federal Arbitration Act should apply in the case or the Texas Arbitration Act. The Texas Act is not as favorable to providers as the Federal Act is because the Texas Act requires that the resident’s attorney must sign the Arbitration Agreement.

How many residents have attorneys representing them upon admission to nursing homes and how many would be willing to retain one for the purpose of signing such an agreement. Furthermore, wouldn’t most attorney’s tell their clients not to sign such an agreement–especially if the attorney makes a living suing nursing homes?

Fortunately, in this case, the Texas Supreme Court recognizes that because of Medicare, these agreements involve interstate commerce and are preempted by Federal law. Thus, the federal statute applies and an attorney’s signature is not required by the Federal Arbitration Act.

There is no mention of what happens if the resident is on Medicaid. However, the same reasoning should apply since federal monies are involved in that program as well.

A State or two in Region VI appear to be confused about what compliance date to assign when a facility clears on a revisit. Thus, CMS sent a recent Regional Survey And Certification Letter to all State Survey Agencies to clarify the issue. Click here to see the letter.

It is suspected that the letter was prompted by a conversation between CMS and the unamed State Survey agencies that went something like this:

“If you find deficiencies on an initial or annual visit, you are to send the facility the 2567 by the tenth business day after you exit the facility. Got it little buddy?”

“Got it Skipper. After the exit, I am to leave the facility and then to get the 2567 back to them within 65 days.”

“No! No! No! You are to get the 2567 back to them within 10 business days.”

“Okay. Okay. I’ve got it. I am to wait until 10 days before DPNA goes into effect to get them the 2567.”

“……………”

“Let’s go on to something else for the moment. If the facility clears on the first revisit, you are to assign the compliance date as the date the facility says it corrected if the facility provides documentation to verify continued compliance after correction was achieved. If the facility has no correction-monitoring data-but is in compliance-the correction date will be the last date on the plan of correction submitted by the facility. Understand?”

“?”

“If the facility clears on the second revisit and the facility has collected data showing correction and verifying continued compliance-the date proven by that data is to be the compliance date. If they have no data, the date of the revisit is the compliance date.”

“I think I get it! When we go back in
after the initial survey, if the facility clears-the compliance date is the date of our revisit. Right, Skipper?”

“………”

(”What did I do to deserve this?”)

“Huh?”

If you have a bad survey, it is important that you:

* Thoroughly document what you actually did to correct-not just your plan,
* Collect monitoring data that will prove that the correction was effective. (e.g. collect data demonstrating that your staff is doing things correctly and demonstrating competency)
* Record the monitoring data in an understandable way so that you can prove to the re-survey team that compliance was achieved on your preferred date.
* Have this data handy for the revisit

If you live in the unamed State(s) that are not getting your 2567 to you in a timely manner and causing you to go into DPNA because of insufficent time to get things together:

* Begin your correction the second the surveyors exit.
* Consider writing letters to CMS documenting the violations of procedure
* Contact your attorney for assistence.

Ipecac Requirements (Assisted Living and Adult Day Care Facilities)

In a Provider letter Texas DADS tackles the issue of facilities stocking Ipecac for use as treatment for poisoning by inducing vomiting. Apparently, some in the Medical Field question its use and whether on not it should be removed from first aid kits. The letter notes that the use of Ipecac is currently being investigated by the FDA–though it is still available.

The provider letter notes that the Texas Poison Center, however, recommends only using it in the most dire of circumstances and only after contacting a physician or the Poison Center at 1-800-222-1222. Click here to see the letter.

The letter goes on to say:”DADS will accept the immediate availability of the poison center phone number listed above and Ipecac, if the facility chooses to stock and maintain it, as meeting TAC requirements. “

The letter definitely strikes a cautionary note and places the burden on the facility to take steps to determine if the use of Ipecac is appropriate for the particular situation at issue. So always call the Texas Poison Center before administering it.

New Requirements for Reporting Deaths for Licensed Adult Care Facilities

As you know, the Texas Office of the Attorney General (OAG) recently implemented new requirements mandated by Senate Bill 826 that require, under certain circumstances, that a general manager of a facility must report the death to the OAG within 24 hours. Additionally, the general manager must submit a resident death form within 72 hours. Now DADS has sent a provider letter to Adult Day Care Facilities clarifying that the requirement applies to them as well. Click here for a copy of the letter. A justice of the peace must be notified if either:

• the physician is unable to certify the cause of death, or
• the death occured in a county without a medical examiner’s office or not part of a medical examiner’s district.