Schedule

• Structure and background of the Medicare Program: History, program administration, and operation
• Medicare coverage: Statutes, manuals, LCDs, NCDs, ALJ decisions, legislative history, resources
• Components of Medicare programs, Parts A–D: Eligibility criteria, provider types, current reimbursement system, quality incentives affecting reimbursement, and appeals process
• Medicaid fundamentals: Overview of state programs, eligibility criteria, covered benefits, reimbursement and financing, recent reform, and developments

In its final rule on home health under the Medicare program, HHS expanded its value-based purchasing model in home health from a demonstration model in 9 states to a nationwide program beginning with calendar year 2023. The session would discuss the VBP program and its current requirements.

• The earlier demonstration project that generated the national program and its results
• The program will operate under the expanded model
• The program will affect Medicare reimbursement
• The appeal process
• Practical advice and resources

• False Claims and other fraud and abuse litigation
• Arbitration agreement litigation
• Data breach and HIPAA enforcement actions
• General litigation developments

• This is not a complaint session, but a serious effort by experienced counsel and Dr. Karl Steinberg, former President of the Society for Post-Acute Medicine, to address growing concerns with the fairness and efficacy of the Departmental Appeals
• Board (DAB) process for review of nursing facility survey sanctions
• The state of the DAB in 2023 – 47 ALJ Decisions in 2022, 1 of which was favorable to a facility on the merits; 2 Board Decisions, with scores pending (while CMS holds escrowed CMPs)
• Kisor, GLC Mountain View and the Good Guidance Practices Rule–Translating the Administrative Procedure Act to the DAB in a way that respects CMS’ legitimate enforcement prerogatives while also weeding out ad hoc sanctions and poorly prepared cases
• Structuring appeals to anticipate Court of Appeals review; highlighting the role of medical evidence and the Medical Director; The Heights of Tomball, ALJ Decision No. CR6147
• Who will bell the cat?

• How should you address decisions of residents with cognitive impairments
• What to do when a resident wants to leave AMA
• Dealing with family members as guardians who agree or disagree with resident choices
• These issues will be address in light of the findings in a recent empirical study on advance directives for people with decisional incapacity

Few things are more disruptive and costly to a health care provider than responding to an action under the False Claims Act. Mr. Robertson and Mr. Beck will share practical tips and specific actions, strategies, and tactics clients have employed in defeating FCA cases or achieving reasonable settlements, from the perspectives of outside counsel, chief legal officer, and chief ethics and compliance officer. Topics covered will include:

• Steps to take when a client gets a civil investigative demand or other signs arise of an FCA investigation
• Reading the tea leaves–“reverse engineering” the government’s concerns from the CID and other clues
• Preparing the organization, from the Board to the front line, for the lengthy roller coaster ride that is an FCA defense
• Selection of defense counsel and how to get the most from the relationship between in-house and outside counsel
• Tools and tips for evaluating FCA exposure
• Planning and executing a comprehensive defense strategy, including how to evaluate potential for settlement
• How and when to communicate about the FCA matter, both internally and with third parties

• Regional and national demographic changes that impact demand
  • Changes in life expectancy
  • Changes in wealth of retirees
• Alternative services / “products” to address significant senior living modalities (independent, assisted, memory care, LTACH)
  • State-driven initiatives to test or implement lower cost alternative services
  • Other reimbursement risks where applicable
  • Reliance on Medicare post-acute care revenue in economic model
• Continued labor uncertainty
  • Reliance on immigration to staff certain positions with uncertain supply
  • Working capital pressure
  • Loss-weary vendors and upstream pressure from their liquidity sources
• Insurance matters
  • Property and casualty insurance costs impacted by environmental and building/construction changes
  • Tort claim environment
• Availability of capital from lenders and landlords
  • Recent credit loss experience
  • Impact of regulation on credit loss experience
  • Changes in number / sophistication of credit suppliers
• Pressure for capital expenditures
  • For regulation
  • For competitiveness
• Complexity of dealing with governmental parties
  • Uncertainty of future recoupments
  • Impacts on buyers and resulting values
• Expense of bankruptcy which may be only avenue of restructuring depending on complexity of capitalization and vendor relations
• Special complexity in areas of limited population density

• Key developments in Centers for Medicare & Medicaid Services regulation, survey and enforcement of skilled nursing facilities, including the anticipated CMS regulation establishing minimum staffing standards
• Current status and likely future of regulatory matters specific to COVID-19, including waivers in place during the Public Health Emergency
• New and anticipated policy developments from other federal agencies with impact on skilled nursing facilities, such as employment, labor and occupational safety and health
  Outlook for Congressional activity on selected issues affecting the sector in 2023

• Changes in reporting requirements
• The current status of PRF audits of post-acute and LTC providers: Single/financial audits
• HRSA collection process and activities
• OIG activities and expected reports
• Preparing for future audits, investigations , and appeals

• A 2023 outlook and HHS OCR priorities
• Status update on pending regulations and future guidance  
• Current HIPAA privacy, security, and breach notification issues and enforcement trends 
• Nondiscrimination in health programs and activities (Section 1557, Language Access, Section 504)

• Updated legislative and regulatory requirements in the senior living space, including potential new staffing requirements
• Recent changes in the Medicare conditions of participation for skilled nursing facilities impact on state regulatory policy governing senior living providers
• A continued revamping of existing assisted living regulations in various states
• Regulatory changes and impact to overall cost of risk

• 2022 State Survey Agency Results, 2023 Performance Measurement Standards for State Survey Agencies, nationwide trends of survey findings and activities, and look at survey changes
• The current “Top 10” deficiencies cited as of December 2022 and best practice recommendations for how to prevent them
• Analysis of an involuntary closure. Factors driving the regulators’ decision. Opportunities to reverse course. Action steps when decertification is inevitable
• A look at the Survey priorities for the upcoming year and upcoming changes in the LTC survey process

• Standards of Care for Post-Acute and Long Term Care (Skilled Nursing) Facilities
• COVID-19 governmental and quasi-governmental regulations, restrictions and guidance and impacts on staffing
• Impacts of PPE on staffing and delivery of care
• Quarantine: Close contacts and infections and impacts on isolation of residents/patients and limitations on staffing
• Balancing protections for staff with delivery of care and services to residents and impacts on level, frequency and duration of care
• Whether SOC should be flexible in light of this operating environment and these external factors?

• False Claims and other fraud and abuse litigation
• Arbitration agreement litigation
• Data breach and HIPAA enforcement actions
• General litigation developments

• The 2023 Medicare home health payment rule updates
• Nationwide expanded Medicare Home Health Value Based Purchasing Demonstration
• Hospice quality of care survey and sanction reforms
• Hospice claims oversight
• Hospice business practices under review
• 2024 MedPAC recommendations on home health and hospice reforms
• Status of home care expansions in Medicare
• Impact of PHE end on home health and hospice waivers by CMS

• Potential pitfalls in the use of social media and texting
• Emails and the potential waiver of privilege
• The use of non-lawyers
• Certain potential changes to the ABA's Model Rules and the impact such changes may have on health care attorneys

• Data Strategy
  • Need to remember that data is a valuable asset at risk/ Not just about “compliance” or “HIPAA compliance”
  • Data Mapping
  • Data Retention and Destruction, medical records and email issues
  • EMR/EHR Agreements and other Tech Agreements
• Health Technology
  • EMR/EHR Agreements and other Tech Agreements
  • Health Tracking Litigation and Guidance
• State of industry and HC for Cyber
  • Cyber insurance market/underwiring
  • Recent cases
• HIPAA Waterline
  • Basic HIPAA security items
  • OCR investigation popular items
• Civil Negligence line – similar to HIPAA
• Recognized security practices (HITECH 2021)

• Care rendered outside the SNF or by non-SNF providers, does it compliment or disrupt the care continuum?
  • Wound care consultants, physicians and the importance of written orders, and compliant documentation
  • Hospice care and who is responsible for effective pain management, oxygen, skin integrity, and end of life care
  • Dialysis care, emergency room wait times, and impact on skin integrity
• Agency staffing, wage inflation, social inflation, and the great resignation, what is the short term impact on care and risk?
  • This program will also expound upon liability Issues inherent in care transitions for the elderly and infirm
• Analyzing recent cases dealing with liability issues in care transitions and how these situations can be avoided for long term care health care providers
  • Documentation issues
  • Effective communications with stakeholders

• AseraCare and Subsequent Case Law:
  • Care Alternatives (cert. denied): The 3rd Circuit allows a jury to determine which of two reasonable medical determinations is “more” correct
  • Curo Health: A federal District Court finds that outliving a terminal prognosis corroborates a claim that a certification of terminal illness is fraudulent
  • Bethany Hospice (cert. pending): A whistleblower seeks review of an 11th Circuit decision concerning the quantum of evidence of actual claims that is necessary
  • CMS and OIG Audits: How have CMS and the OIG addressed the AseraCare case in their provider audits?
• In FCA litigation, learn other defenses that maximize the likelihood that defendant will prevail on the FCA’s falsity, knowledge and materiality elements
• In FCA / AKS litigation and investigations, learn new defenses related to fair market value and the requirement that plaintiff link remuneration to claims that defense counsel needs to understand
• In FCA / Stark law litigation and investigations, learn the type of activity the government targets such as when providers measure revenue associated with downstream referrals and when physician compensation does not match productivity and defenses related to reasonable interpretation of ambiguous rules
• In COVID-19 and pandemic relief related fraud litigation and investigations, learn the latest enforcement tends and defenses
• FCA Amendments: Proposed statutory changes that limit provider defenses

• The types of relationships between ancillary providers and long-term care facilities
• Considerations for contractual agreements, such as third party access agreements, partnership/joint venture arrangements, and space leases
• Impact for licensure or other government approvals
• Case studies and review of best practices to avoid violations of fraud and abuse laws

This session will introduce attendees to the concept of population health and how the management of groups of residents and patients is likely to affect providers along the LTC continuum, and identify legal issues in moving towards risk based managed care programs. A panel of experts will discuss:

• How do you define “population health” from both the provider and payer perspective
• Why providers should care about how population health will affect delivery of long term care
• What challenges and opportunities exist for providers?
• Two experts involved in population health management will explain what this looks like on the ground within Medicaid Managed Care, Medicare Advantage and Medicare FFS arrangements

• How should you address decisions of residents with cognitive impairments.
• What to do when a resident wants to leave AMA.
• Dealing with family members as guardians who agree or disagree with resident choices.
• These issues will be address in light of the findings in a recent empirical study on advance directives for people with decisional incapacity.

• How to use communication research and industry perception information to benefit your long term care organization
• Learn how to integrate legal and communications strategy and create an ongoing dialogue with the PR team
• Tips for working together with your PR team to successfully address a crisis

• Situations which often result in efforts by SNF and AL providers to discharge residents involuntarily
• The special problem of the difficult resident or family member
• Valid and invalid bases for involuntary discharge, including the resident's failure to pay for services
• Avoiding legal and ethical risks associated with nursing and assisted living facility collection efforts
• Compliance with notice and procedural requirements for involuntary discharges
• What to do when a resident or family member refuses to vacate the premises

• Applicable federal, and common state law requirements and restrictions governing employment of individuals with certain convictions or administrative findings and consequences for hiring prohibited or excluded individuals
• OIG LEIE database and additional screening sources, and limitations to effective searches
• The challenge with effective searches in the context of staffing shortages and staffing agencies
• Strategies to expand effective staff screenings to third party vendors
• Work-authorized visas available to long term care employees
• Visa application processes and timelines for foreign students and graduates inside and outside the United States

• Changes in reporting requirements
• The current status of PRF audits of post-acute and LTC providers: Single/financial audits
• HRSA collection process and activities
• OIG activities and expected reports
• Preparing for future audits, investigations , and appeals

• The 2023 Medicare home health payment rule updates
• Nationwide expanded Medicare Home Health Value Based Purchasing Demonstration
• Hospice quality of care survey and sanction reforms
• Hospice claims oversight
• Hospice business practices under review
• 2024 MedPAC recommendations on home health and hospice reforms
• Status of home care expansions in Medicare
• Impact of PHE end on home health and hospice waivers by CMS

• The Patient Safety and Quality Improvement Act
• The requirements for establishing a new, or joining an existing PSO in compliance with the PSQIA
• The patient safety and quality improvement benefits of PSOs
• The ways in which being part of a PSQIA compliant PSO protect quality improvement and patient safety information
• Perform a cost/benefit analysis to help determine if being part of a PSO is right for your aging services organization

• The federal government’s focus on private equity’s role in the ownership of LTC facilities and the risks that private owners face
• Risks these transactions pose and how to mitigate risk and exposure. At the state level, disclosure rules and filings continue to raise challenges for facilities
• An increasing number of nursing and long term care facilities are involved in transactions with or owned by private equity (PE) firms. Public statements by the President and other agencies have revealed a growing distrust of PE involvement
• The government has expressed concern over the lack of transparency regarding ownership, as well as a perceived focus away from patient care to a profit-first mentality
• The financial challenges of long term care related operations, staffing costs, and other challenges make the availability of support from private equity essential to sustain many facilities
• Critical to this transition to new types of ownership are issues related to the transactions themselves, issues learned during due diligence, and strategies for clarifying control or ownership

• The most common claims reported in assisted living
• Fact patterns that expose assisted living providers to claims
• Common areas of regulatory risk in assisted living
• Current trends impacting the assisted living industry
• Practices implemented by providers to address risk factors

This session will introduce attendees to the concept of population health and how the management of groups of residents and patients is likely to affect providers along the LTC continuum, and identify legal issues in moving towards risk based managed care programs. A panel of experts will discuss:

• How do you define “population health” from both the provider and payer perspective
• Why providers should care about how population health will affect delivery of long term care
• What challenges and opportunities exist for providers?
• Two experts involved in population health management will explain what this looks like on the ground within Medicaid Managed Care, Medicare Advantage and Medicare FFS arrangements

Session will capture key changes to abuse and neglect in the new surveyor guidance, as well as regulatory requirements for abuse and neglect prevention and reporting for long term care, with an emphasis on determining capacity to consent to sexual activity. Session will also review recent issues in abuse and neglect DAB decisions and best practices for responding to abuse and neglect allegations.

• New surveyor guidance on abuse and neglect prevention and reporting for nursing homes
• CMS guidance on how to determine if a resident has the capacity and ability to consent to sexual activity
• Recent issues in abuse and neglect in DAB decisions
• Pertinent actions to take in response to abuse and neglect allegations

Few things are more disruptive and costly to a health care provider than responding to an action under the False Claims Act. Mr. Robertson and Mr. Beck will share practical tips and specific actions, strategies, and tactics clients have employed in defeating FCA cases or achieving reasonable settlements, from the perspectives of outside counsel, chief legal officer, and chief ethics and compliance officer. Topics covered will include:

• Steps to take when a client gets a civil investigative demand or other signs arise of an FCA investigation
• Reading the tea leaves–“reverse engineering” the government’s concerns from the CID and other clues
• Preparing the organization, from the Board to the front line, for the lengthy roller coaster ride that is an FCA defense
• Selection of defense counsel and how to get the most from the relationship between in-house and outside counsel
• Tools and tips for evaluating FCA exposure
• Planning and executing a comprehensive defense strategy, including how to evaluate potential for settlement
• How and when to communicate about the FCA matter, both internally and with third parties

• Key developments in Centers for Medicare & Medicaid Services regulation, survey and enforcement of skilled nursing facilities, including the anticipated CMS regulation establishing minimum staffing standards
• Current status and likely future of regulatory matters specific to COVID-19, including waivers in place during the Public Health Emergency
• New and anticipated policy developments from other federal agencies with impact on skilled nursing facilities, such as employment, labor and occupational safety and health
  Outlook for Congressional activity on selected issues affecting the sector in 2023

• Life After COVIDNew Robust Regulations
  • New Robust Regulations
  • TNA waiver - where are we now?
  • Staffing - what is the impact?
  • PHE - what about Medicaid Eligibility?
  • Push for Up-to-Date Vaccinations - how are we doing?
• Compliance and Arbitration Conditions of Participation
  • How have the Survey Teams handled this and what can we do to prepare?
• Medical Malpractice in the Era of the PREP Act.
• What is new in the Survey and Enforcement Environment?

• Updated legislative and regulatory requirements in the senior living space, including potential new staffing requirements
• Recent changes in the Medicare conditions of participation for skilled nursing facilities impact on state regulatory policy governing senior living providers
• A continued revamping of existing assisted living regulations in various states
• Regulatory changes and impact to overall cost of risk

• 2022 State Survey Agency Results, 2023 Performance Measurement Standards for State Survey Agencies, nationwide trends of survey findings and activities, and look at survey changes
• The current “Top 10” deficiencies cited as of December 2022 and best practice recommendations for how to prevent them
• Analysis of an involuntary closure. Factors driving the regulators’ decision. Opportunities to reverse course. Action steps when decertification is inevitable
• A look at the Survey priorities for the upcoming year and upcoming changes in the LTC survey process

• Standards of Care for Post-Acute and Long Term Care (Skilled Nursing) Facilities
• COVID-19 governmental and quasi-governmental regulations, restrictions and guidance and impacts on staffing
• Impacts of PPE on staffing and delivery of care
• Quarantine: Close contacts and infections and impacts on isolation of residents/patients and limitations on staffing
• Balancing protections for staff with delivery of care and services to residents and impacts on level, frequency and duration of care
• Whether SOC should be flexible in light of this operating environment and these external factors?

The session provides up to date guidance on the requirements of skilled nursing facilities to maintain an effective corporate compliance and ethics program. It will examine federal guidance on compliance and ethics programs and how effectiveness has evolved through precedent. It will reflect, beyond the basics, the perspective from internal compliance professionals and outside counsel. This session will also dive into the complexities of developing an effective compliance and ethics program on campuses with a combination of senior services settings and levels of care also containing skilled nursing. It will focus on:

• An updated review of Federal requirements and guidance for Compliance and Ethics programs and 2022 published Centers for Medicare and Medicaid Services surveyor guidance
• Tips and lessons learned from communities regarding what makes a compliance program effective within a community
• Actual experience and case studies from Corporate Integrity Agreements and other investigations and best practices learned
• The compliance structures within complexities of a multi-level campus, such as life plan (CCRC) communities
• Managing contracted vendors and other related third parties bound by the compliance and ethics program

• Potential pitfalls in the use of social media and texting
• Emails and the potential waiver of privilege
• The use of non-lawyers
• Certain potential changes to the ABA's Model Rules and the impact such changes may have on health care attorneys

• Data Strategy
  • Need to remember that data is a valuable asset at risk/ Not just about “compliance” or “HIPAA compliance”
  • Data Mapping
  • Data Retention and Destruction, medical records and email issues
  • EMR/EHR Agreements and other Tech Agreements
• Health Technology
  • EMR/EHR Agreements and other Tech Agreements
  • Health Tracking Litigation and Guidance
• State of industry and HC for Cyber
  • Cyber insurance market/underwiring
  • Recent cases
• HIPAA Waterline
  • Basic HIPAA security items
  • OCR investigation popular items
• Civil Negligence line – similar to HIPAA
• Recognized security practices (HITECH 2021)

• Care rendered outside the SNF or by non-SNF providers, does it compliment or disrupt the care continuum?
  • Wound care consultants, physicians and the importance of written orders, and compliant documentation
  • Hospice care and who is responsible for effective pain management, oxygen, skin integrity, and end of life care
  • Dialysis care, emergency room wait times, and impact on skin integrity
• Agency staffing, wage inflation, social inflation, and the great resignation, what is the short term impact on care and risk?
  • This program will also expound upon liability Issues inherent in care transitions for the elderly and infirm
• Analyzing recent cases dealing with liability issues in care transitions and how these situations can be avoided for long term care health care providers
  • Documentation issues
  • Effective communications with stakeholders

• The types of relationships between ancillary providers and long-term care facilities
• Considerations for contractual agreements, such as third party access agreements, partnership/joint venture arrangements, and space leases
• Impact for licensure or other government approvals
• Case studies and review of best practices to avoid violations of fraud and abuse laws

• Applicable federal, and common state law requirements and restrictions governing employment of individuals with certain convictions or administrative findings and consequences for hiring prohibited or excluded individuals
• OIG LEIE database and additional screening sources, and limitations to effective searches
• The challenge with effective searches in the context of staffing shortages and staffing agencies
• Strategies to expand effective staff screenings to third party vendors
• Work-authorized visas available to long term care employees
• Visa application processes and timelines for foreign students and graduates inside and outside the United States

• Situations which often result in efforts by SNF and AL providers to discharge residents involuntarily
• The special problem of the difficult resident or family member
• Valid and invalid bases for involuntary discharge, including the resident's failure to pay for services
• Avoiding legal and ethical risks associated with nursing and assisted living facility collection efforts
• Compliance with notice and procedural requirements for involuntary discharges
• What to do when a resident or family member refuses to vacate the premises

• The federal government’s focus on private equity’s role in the ownership of LTC facilities and the risks that private owners face
• Risks these transactions pose and how to mitigate risk and exposure. At the state level, disclosure rules and filings continue to raise challenges for facilities
• An increasing number of nursing and long term care facilities are involved in transactions with or owned by private equity (PE) firms. Public statements by the President and other agencies have revealed a growing distrust of PE involvement
• The government has expressed concern over the lack of transparency regarding ownership, as well as a perceived focus away from patient care to a profit-first mentality
• The financial challenges of long term care related operations, staffing costs, and other challenges make the availability of support from private equity essential to sustain many facilities
• Critical to this transition to new types of ownership are issues related to the transactions themselves, issues learned during due diligence, and strategies for clarifying control or ownership

• The most common claims reported in assisted living
• Fact patterns that expose assisted living providers to claims
• Common areas of regulatory risk in assisted living
• Current trends impacting the assisted living industry
• Practices implemented by providers to address risk factors